Delhi District Court
C.B.I. vs . N.S.Kain S/O Sh. Bhuri Singh Kain on 26 September, 2014
IN THE COURT OF SH AJAY KUMAR KUHAR:
SPECIAL JUDGE, CBI (P C Act)-06 ,CENTRAL, DELHI.
CC No. 19/2012
RC No. 27(A)/1997
P.S. CBI/ACB/ND
ID No. 02401-R0000081998
C.B.I. Vs. N.S.Kain S/o Sh. Bhuri Singh Kain
R/o 15, Delhi Administration
Officers Flats, Greater Kailash,
Part-I, New Delhi.
(Director, MCD, JJ Slum
Department, Vikas Kutir, New
Delhi).
Date of Institution : 13.11.1998
Date of receipt in the
Court : 09.01.2012
Judgment Reserved : 15.09.2014
Judgment Delivered : 26.09.2014
FACTUAL MATRIX
1.The prosecution case, in brief, is that a written complaint was received from one Sanjeev Singh on 26.04.1997 by SP, CBI, Anti Corruption Branch (ACB) against N. S. Kain, Director, JJ & Slum, MCD, CBI Vs N. S. Kain CC No. 19/2012 1/59 alleging a demand of bribe of Rs. 50,000/-. As per the case of the prosecution, Demolition Squad of JJ and Slum Department of the Municipal Corporation of Delhi (MCD), had carried out a demolition drive in which under the order of accused N. S. Kain, who was Director, JJ & Slum, MCD. The demolition squad had demolished unauthorized construction in the premises occupied by the complainant i.e 18/575 and also in flat No. 18/563 at ground floor and 15/575 at first floor and 18/571 at second floor. However, the complete demolition could not be carried out by the demolition squad. The complainant and other occupants of the premises were under the constant threat of further demolition of the remaining part of the unauthorized construction. To stop any further demolition action, the accused N. S. Kain allegedly demanded a sum of Rs. 50,000/- from the complainant and other occupants of the premises. The complainant along with one Satpal Singh, occupant of ground floor bearing No. 18/563, met the accused N. S. Kain, who asked them to arrange Rs. 50,000/- and to pay the same at his residence at 15, Delhi Administration Officers Flat, Greater Kailash-I (GK-I), New Delhi on 26.04.1997 at 8.00 pm. The complainant and Satpal Singh persuaded the accused to accept only Rs. 40,000/- to which the accused agreed. However, the complainant was not inclined to pay the bribe amount to the accused, therefore, he approached CBI and lodged a formal complaint in writing vide his complaint dated 26.04.1997.
2. The SP, CBI, ACB, marked the complaint to Inspector R. V. S. Lohmor. He constituted a trap team of CBI officials and two independent witnesses namely Mr. R. R. Vashisht, TM(O) and Mr. Kishore Sharma, Sr. TAO, both from Central Telegraph Office, Janpath, New Delhi, after CBI Vs N. S. Kain CC No. 19/2012 2/59 making preliminary inquiry with regard to allegations made in the complaint.
3. The complainant produced Rs. 15,000/- which consisted of 100 GC notes of Rs. 100/- denomination and 100 GC notes of Rs. 50/- denomination. The serial number of these currency notes were noted down. The currency notes were treated with phenolphthalein powder by Inspector S. K. Bhati and were wrapped in the newspaper 'Hindustan' of date 25.04.1997. The newspaper was also treated with phenolphthalein powder and its page 12 was signed by the independent witnesses. The Investigating Officer (IO) gave suitable directions to the trap team as to the manner in which trap is to be organized. He instructed the complainant to keep the amount of Rs. 15,000/- wrapped in newspaper in right side pocket of his wearing trouser with further instruction to hand over the same to the accused on specific demand. Satpal Singh was directed to accompany the complainant to the residence of accused N. S. Kain and both of them were instructed to give the signal after completion of transaction by scratching their hairs with both the hands.
4. The IO also arranged for a transmitter cum recorder with mike. The formal voices of the witnesses were recorded and kept in a audio cassette signed by the witnesses and then fitted in transmitter cum recorder. The use and the functioning of transmitter cum recorder was explained to the witness. The complainant was directed to keep the mike in the upper pocket of his wearing shirt and to switch it on before entering into the house of the accused. The transmitter cum recorder was handed over to SI Vivek Dhir for operating the same on the spot to record the conversation.
CBI Vs N. S. Kain CC No. 19/2012 3/59Sh. R. R. Vashisht was given ear-phone so that he could hear the conversation being recorded simultaneously on the audio cassette.
5. Sh. S. K. Bhati, Inspector, gave practical demonstration and explained the reaction which would take place when GC notes treated with phenolphthalein powder are touched with fingers and the fingers then washed in colour less solution of sodium carbonate. Raj Kishore Sharma was asked to touch the GC notes treated with phenolphthalein powder and then wash in the freshly prepared colour less solution of sodium carbonate. This resulted in the solution turning pink in colour. Thus, the importance and significance of this reaction was explained to the independent witnesses.
6. After all the instructions were given to the trap team, they were all manually searched and nobody was allowed to keep anything on person except the I-Card. The trap party left CBI office at 7.15 pm carrying clean glass tumblers, bottles, sodium carbonate powder, CBI seal and sealing material in a leather bag. At 7.55 pm, they reached Delhi Administration Officers Flat, GK-I, New Delhi. The complainant Sanjiv Singh and Satpal Singh were directed to proceed to flat No. 15 and other members of the trap party were asked to take suitable position. The complainant and Satpal Singh came out of the flat No. 15 after 20-25 minutes and gave the pre-appointed signal. Sh. R. R. Vashisht also confirmed that as per the conversation heard by him, the transaction relating to demand and acceptance is complete. Pursuant to that, the trap party along with complainant and Satpal Singh reached the flat No. 15. The accused N. S. Kain opened the door after the call bell was given by inspector R. V. S. CBI Vs N. S. Kain CC No. 19/2012 4/59 Lohmor. The accused was identified by the complainant and he was caught hold by wrists immediately by Inspector Bhati and Inspector K. Babu. The CBI trap team disclosed the identity of the team members and the accused was asked whether he had demanded and accepted the bribe of Rs. 15,000/- from the complainant and Satpal Singh. The accused got perplexed and did not respond to the query. In the meantime, the complainant informed that as instructed by the accused, he had kept the bribe amount of Rs. 15,000/- wrapped in the newspaper on the top of the TV trolley, however, the said newspaper wrapper was not found on the TV trolley. In the meantime, the washes of left and right hand of the accused were taken in a sodium carbonate solution which had turned pink in colour and it was transferred to neat and clean glass bottles, which were brought by the CBI. On further questioning, the accused disclosed that after the departure of the complainant and Satpal Singh, he had removed the money and kept the same in the Almirah of Pooja-cum-bed room between a register and a folder. The CBI team was led to the room where independent witness namely Raj Kishore sharma removed the money which were lying visible between a register and a folder on which Jesus and Marry College was written. The amount so recovered was tallied with the serial number of the currency notes already noted down. The washes of the register as well as that of folder of Jesus and Marry College were taken and kept in clean glass bottles and sealed with CBI seal. The newspaper in which currency notes were wrapped was recovered from the dustbin. It was also washed and the washes kept in clean glass bottles and sealed with CBI seal. Thereafter, transmitter cum recorded containing the conversation recorded was played in which witnesses identified their voices as well as voice of accused. The audio cassette was sealed with seal CBI Vs N. S. Kain CC No. 19/2012 5/59 of CBI. After completing proceedings, the accused was arrested at the spot. During further investigation, statements of witnesses were recorded. The specimen voice sample of the accused taken in presence of independent witnesses. The cassette containing conversation mark "Qa" and specimen voice "Sa" were sent to CFSL for examination of voice. The sealed bottles containing hand washes etc., were also sent to CFSL. After completing the investigation and obtaining the Sanction for prosecution, charge sheet was filed.
CHARGE
7. On the basis of charge-sheet and documents filed, cognizance for offence under Sec. 7 & 13 of the PC Act was taken on 13.11.1998. The accused was supplied with copies in compliance of Sec. 207 Cr.PC.
7.1 After hearing learned Public Prosecutor (PP) for CBI and the learned Defence Counsel for the accused, charges for the offences under Sec. 7 & 13(1)(d) punishable under Sec. 13(2) of the Prevention of Corruption Act, 1988 (for short, the PC Act) were framed against the accused on 25.08.2013, to which he pleaded not guilty and claimed trial.
PROSECUTION WITNESSES
8. In order to prove its case, CBI has examined as many as 14 witnesses.
8.1 PW-1 is Sanjeev Singh, who is the complainant in this case and he has proved his complaint Ex. PW-1/A. He has deposed about the demand CBI Vs N. S. Kain CC No. 19/2012 6/59 made by the accused, about the trap proceedings, recovery of currency notes from the house of the accused and other proceedings.
8.2 PW-2 is Jalaj Srivastava, Commissioner Industries, Government of NCT of Delhi, who has proved the Sanction Order Ex. PW-2/A. 8.3 PW-3 is Rajender Singh, Principal Scientific Officer, CFSL, Delhi, who had examined the cassette (Qa) containing the conversation between the accused, complainant and the shadow witness and compared the voice of the accused therein with the specimen voice in cassette "Sa". He has proved his report Ex. PW-3/A. He has proved the transcription of the conversation / contents of cassettes Qa and Sa as Ex. PW-3/C and 3/B respectively.
8.4 PW-4 is K. S. Chhabra, SSO, CFSL, New Delhi. He has proved his report Ex. PW-4/A stating that the exhibits received by him in sealed bottles marked as RHW, LHW, RCW, PWS, JMCR gave positive test for phenolphthalein and sodium carbonate.
8.5 PW-5 is Tilak Raj Anand, one of the resident of flat number 567/18, Kalkaji, New Delhi. He was residing at the first floor of the house and he has spoken about the demolition carried out in the premises and a demand of Rs. 50,000/- by accused N. S. Kain for stopping further demolition action.
8.6 PW-6 is Raj Kishore Sharma, an independent witness and a member of the trap team.
CBI Vs N. S. Kain CC No. 19/2012 7/598.7 PW-7 is Satpal Singh. He accompanied the complainant to the CBI office on 26.04.1997 to file the complaint Ex. PW-1/A. He had also accompanied the complainant to the house of accused and in his presence the bribe money was transacted.
8.8 PW-8 is Inspector R. V. S. Lohmor, the trap laying officer (TLO).
8.9 PW-9 is Ved Pal Basista, Executive Engineer, Slum & JJ, MCD, who had reported about the unauthorized construction in the premises in question.
8.10 PW-10 is Ganga Ram, Superintendent (Demolition), who has spoken about the action taken by the MCD with regard to the demolition in the premises in question and he has proved various noting in the file Ex. PW-9/A concerning unauthorized construction in Kalkaji.
8.11 PW-11 is J. N. Bhatia, Photographer in MCD Slum Department.
8.12 PW-12 is O. P. Giri. He has also proved the official notings on the file pertaining to demolition in premises No. 18/563, Block-18, Kalkaji.
8.13 PW-13 is Virender Thakran, the Investigating Officer.
8.14 PW-14 is Raj Roop Vashisht, the independent witness, who was called to join CBI team to lay trap. He was accompanied by his colleague Ram Kishore Sharma and both of them had joined the trap team of CBI.
CBI Vs N. S. Kain CC No. 19/2012 8/59STATEMENT UNDER SEC. 313 CrPC.
9. After the evidence of the prosecution was completed, the accused was confronted with the evidence when examined under Sec. 313 Cr.PC. The accused has denied having made any demand and that he accepted Rs. 15,000/- as bribe money. With regard to his hand wash, he stated that CBI team had applied powder on his hands and then got the solution. He has denied recovery of Rs. 15,000/- from the Almirah lying between the register and folder. He also denied that the cassette from which the transcription of conversation Ex. PW-3/P was prepared, contained his voice. He further stated that he has been implicated in false and fabricated case because he had initiated the demolition of unauthorized construction and PW- Sanjeev Singh and others are interested and inimical witnesses as their houses were demolished.
DEFENCE EVIDENCE
10. The accused also preferred to lead defence evidence and examined following witnesses:-
10.1 DW-1 is Vijay Kumar, who brought the summoned file No. 000/VGL/154/CVC/Government of India containing the Office Order dated 15.12.2005 Ex. DW-1/A. This Order pertains to public servants who appear as witnesses in trap cases by CBI.
10.2 DW-2 is Sukhbir Singh, Head Constable, CBI, who had brought the summoned record i.e letter dated 26.04.1997 Ex. DW-2/A. CBI Vs N. S. Kain CC No. 19/2012 9/59 10.3 DW-3 is Ashok Kumar, Head Constable, ACB, CBI, who had brought the Circular dated 09.07.1962 with regard to preservation of record as per which Log-book of vehicle is destroyed after three years.
10.4 DW-4 is Trilok Chand Meena, LDC, CBI, who brought the detail pertaining to record of destruction of visitors register and general diary of CBI Ex. DW-4/A and 4/B. 10.5 DW-5 is Narender Kumar, SSO, Telegraph Office, Eastern Block, who had brought the record pertaining to R. R. Vashisht and Raj Kishore Sharma (both independent witnesses, who had joined the investigation).
10.6 DW-6 is K. Mamachen, MHC(M), CBI, who had brought the copy of the deposit entry of the seized articles deposited in the Malkhana vide serial No. 11/97 (Ex. DW-6/A).
10.7 DW-7 is Narender Kumar, Record Clerk in the Telegraph Office, Janpath, who has stated that the official record in relation to R. R. Vashisht, TMO, has been destroyed. He had also brought the record of personal file of Mr. Raj Kishore Sharma, Sr. TOA, who had visited CBI officer on 26.04.1997 and 02.07.1997 in case No. RC-27(A)/97/DLI.
10.8 DW-8 is Narender Kumar, Head Constable, CBI, who had deposed that no register is maintained by CBI with regard to the brass seals issued to the officer of CBI.CBI Vs N. S. Kain CC No. 19/2012 10/59
10.9 DW-9 is Harish Vats, Deputy Director, South-Zone, JJR, Delhi Urban Shelter Improvement Board, who stated that the record pertaining to demolition of tenements No. 563, 575, Block No.-18, Kalkaji, Delhi, is not available in their office.
10.10 DW-10 is Hari Ram, Assistant Director (Demolition), Delhi Urban Shelter Improvement, Board. He deposed that he could not trace the summoned record pertaining to demolition of property No. 563 & 575, Block-18, Kalkaji. However, he submitted the report Ex. DW-10/B stating therein that the file on the subject "demolition of unauthorized construction" in respect of flat No. 563, Block-18, Kalkaji was given to CBI as per the entry No. 135/472 in Diary Register from January, 1997 to November, 1997.
11. I have heard the arguments by Ld. Public Prosecutor and Ld. Defence Counsel for the accused and also perused the written arguments submitted by the accused.
12. The accused has been put to trial for the offences punishable under Sec. 7 and Sec. 13(1)(d) read with Sec. 13(2) of Prevention of Corruption Act, 1988. To understand the requirement of evidence to prove the allegations under these provisions, it is necessary to go through the provisions.
12.1 Sec. 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 CBI Vs N. S. Kain CC No. 19/2012 11/59 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 Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years, and shall also be liable to fine.
12.2 Sec. 13- Criminal misconduct by public servant. (1) A public servant is said to commit the offence of criminal misconduct, -
(a) ----------------------------------------------------.
(b) ----------------------------------------------------.
(c) ----------------------------------------------------.
(d) if he,-
(i) by corrupt or illegal means, obtain 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 CBI Vs N. S. Kain CC No. 19/2012 12/59 any public interest.
(e) -----------------------------------------------.
12.3 Sec. 13 (2)-
Any public servant who commits misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine.
13. The Ld. Public Prosecutor has argued that prosecution has been able to prove demand, acceptance and recovery of bribe amount from the accused. He has argued further that the oral testimonies of PW-1 Sanjeev Singh, PW-5 Tilak Raj, PW-6 Raj Kishore Sharma, PW-7 Satpal Singh and PW-14 R. R. Vashisht on the point of demand, acceptance and recovery, have been corroborated by scientific evidence by PW-3 Dr. Rajender Singh, Principal Scientific Officer, CFSL, who has identified the voice in the recorded conversation in cassette 'Qa' with the specimen voice of the accused N. S. Kain in the cassette 'Sa'. His report Ex. PW-3/A is based on scientific analysis and the voice identification of the accused in the recorded conversation the transcript of which Ex. PW-3/C was also prepared. He further argued that the chemical analysis of the hand wash of the accused also provide necessary corroboration to the prosecution case. PW-4 K. S. Chhabra has proved his report Ex. PW-4/A wherein he has stated that he received 5 sealed bottles with intact seal which tallied with the specimen seal. These five bottles contained pink colour liquid marked as RHW, LHW, RCW, PWS and JMCR. As per his report, the contents of these bottles gave positive test for phenolphthalein and sodium carbonate.
CBI Vs N. S. Kain CC No. 19/2012 13/59Ld. PP further argued that once the acceptance by the accused and the recovery of bribe amount has been proved, Sec. 20 of the PC Act would be attracted and there would be a presumption that the accused accepted illegal gratification as a motive or reward for doing or for bearing to do any official act etc. He further argued that as usual there are prosecution witnesses who have been cross-examined by the prosecution when they did not support its case still even the statement of witnesses declared hostile in part lend credence and corroboration to other witnesses of the prosecution. The Ld. Public Prosecutor has cited case law in support of his submissions. He submitted that when prosecution has proved demand and acceptance, the motive becomes immaterial. Reliance was placed on State of AP Vs J. Jeevarathnam (2004) 6 SCC 488 and Chaturdas Bhagwan Das Patel Vs State of Gujurat AIR 1976 SC 1497. It was submitted by Ld. Public Prosecutor that when the bribe amount has been recovered at the pointing of the accused and from his possession, it is a strong evidence against accused. Reliance placed on A. N. Venkatesh Vs State 2005 7 SCC 714 and State of AP Vs B. Eshwariah AIR 1983 SC 353. He further argued that the passing of money can be proved by circumstantial evidence and the corroboration need not be direct evidence. He relied on Hazari Lal Vs Delhi (Admn.) AIR 1980 SC 873, Ramesh Kumar Gupta Vs State of MP 1995 Cri. L. J 3656 SC and M. O. Shamshuddin Vs State of Kerala 1995 AIR SCW 2717. With regard to the evidential value of the complainant and police witnesses, he relied upon C. M. Sharma Vs State of AP 2011 Cri. L. J 975 SC, State of UP Vs G. K. Ghosh AIR 1984 SC 1453 and State of UP Vs Zakaullah AIR 1998 SC 1474. The Ld. PP relied upon T. Shanker Prasad Vs State of AP AIR 2004 SC 1242 to submit that presumption under Sec. 20 of the Act cast an obligation on CBI Vs N. S. Kain CC No. 19/2012 14/59 court to operate it and it can be rebutted by proof and not by explanation which may seem to be plausible.
14. Ld. Counsel for the accused has assailed the prosecution case on the following grounds:-
14.1 He argued that no suitable preliminary inquiry into the allegations has been conducted disclosing any act of serious misdemeanor against the accused. He submitted that the FIR has been lodged in flagrant violation of the statutory requirements. He submitted that accused is entitled for acquittal as the entire case is based on the investigation which is against the expressed directions of the Hon'ble Supreme Court and the entire trap and trial has been vitiated. In support of his version, he relied upon the judgments in P. Sirajuddin Vs State of Madras AIR 1971 SC 520, State of Haryana Vs Bhajan Lal AIR 1992 SC 604 & Ashok Tshering Bhutia Vs State of Sikkim (2011) 2 SCC (Cri.) 258.
14.2 Ld. Defence Counsel has also submitted that that the pre-trap demand of bribe has not been established by the prosecution. He refers to the contradictions in the statement of PW-1, PW-7 & PW-5 vis-a-vis the complaint Ex. PW-1/A. He submitted that the oral evidence led by the prosecution on the issue of demand is not sufficient as there are inherent contradictions in the statement of witnesses. On the issue of appreciation of oral testimony of the witnesses in the Court, Ld. Counsel has relied upon the judgments Suraj Singh Vs State of UP JT 2005 (8) SC 411, C. Magesh Vs State of Karnataka AIR 2010 SC 2768, Kali Ram Vs State of H. P. 1973 SCC (Cri.) 1048, R. P. Kapoor Vs State of Punjab AIR CBI Vs N. S. Kain CC No. 19/2012 15/59 1973 SC 498, Sat Paul Vs Delhi Administration AIR 1976 SC 294, State of Maharastra Vs Wasudeo Ramchandra (1981) 3 SCC 199, Toran Singh Vs State of M. P AIR 2002 SC 2807, State of A. P. Vs T. Venkateswara Rao 2004 III AD (SC) 493, Rudrappa Ramappa Jainpur & Ors Vs State of Karnataka 2004 (2) JCC 1172, Ram Swarup & Ors Vs State of Rajasthan 2004 (1) JCC 555, Karuppanna Thevar & Ors.
Vs State of Tamilnadu AIR 1976 SC 980, Aher Raja Khima Vs State Saurastra 1955 SCR(2) 1285, Avtar Singh Vs State of Punjab 2006 (IX) AD (SC) 335, Raghbir Singh Vs State of Punjab AIR 1976 SC 91, Hiralal Vs State of Haryana AIR 1971 SC 356, State Vs Satish Chand Sharma 1987 Crl. L. J 1205 (Delhi), Khilli Ram Vs State of Rajasthan AIR 1985 SC 79, State Vs Gulzari Lal Tandon AIR 1979 SC 1382, Sevi & K. Karian Vs State AIR 1981 SC 1230, H. G. Nargundkar Vs State of M. P AIR 1952 SC 343, Hate Singh Bhagat Singh Vs State of Madhya Bharat AIR 1953 SC 468, State of U. P. & Anr. Vs Jaggo @ Jagdish and Ors. AIR 1971 SC 1586, Amarpal (Rajpal) Vs State 2010 VII AD (Delhi) (DB), 696, M. Abbas Vs State of Kerala 2001 V AD (SC) 100 & M. P. Vs Rakesh Gandhi.
14.3 Ld. Defence Counsel has also argued that in the absence of evidence of a 'demand of bribe', the offence punishable under Sec. 7 & Sec. 13(1)(d) of PC Act cannot be proved and there cannot be any presumption against the accused. In support of his version, he has relied upon the judgments Suraj Mal Vs State (Delhi Admn.) (1979) 4 SCC 725, G. V. Nanjundiah Vs State AIR 1987 SC 2402, Anand Swaroop Vs State 1988 Cri. L. J 756, Habharosey Lal Vs State of UP 1988 Cri. L. J. 1122, Som Prakash Vs State of Punjab 1992 Cri. L. J 490 (SC), C. M. Girish Babu Vs CBI CBI Vs N. S. Kain CC No. 19/2012 16/59 (2009) 3 SCC 779, V. Kannan Vs State 2009 (IX) AD (SC) 293, State of Maharastra Vs Dyneshwar Luxman Rao Wankhede VI (2009) SLT 439, Banarsi Dass Vs State of Haryana 2010 (3) JCC 1842 (SC), Rajinder Singh Vs State of Punjab 2010(1) CC Cases (HC) 60 (P & H), Harbans Singh Vs State of Punjab 2010)2) CC Cases (HC) 287 (P & H), Ashok Kumar Vs State of Haryana 2011(1) CC Cases (HC) (P & H) 281, Pyare Lal Vs State 149(2008) DLT 425 (DB), Prem Raj Meena Vs CBI 2011(1) Crimes 730 (Delhi) & State of Kerela Vs Anr Vs C. P. Rao Criminal Appeal No. 1098 of 2006.
14.4 Ld. Defence Counsel further argued that the prosecution must bring on record the evidence which connect the accused with the offence and especially in corruption cases corroboration is a necessity without which case cannot be proved. In support of his version, Ld. Counsel has relied upon the judgments Panna Lal Damodar Rathi Vs State of Maharastra 1980 SCC (Cri.) 121, Ayyasami Vs State of Tamilnadu 1992 Cri. L. J SC 608, Chanderbhan Vs State (CBI) 73 (1998) DLT 318 Subhash Prabhat Sonvane Vs State of Gujurat AIR 2003 SC 2169, Karnail Singh Vs State of Punjab (2009) 3 CC Cases (HC) 145 (P & H), State of Maharastra Vs D. L. Rao Wankhede 2009(4) RCR (Cri.) 217 (SC), A Subair Vs State of Kerala 2009 (VIII) AD (SC) 117, V. Kanna Vs State 2009 (IX) AD (SC) 293, Banarsi Dass Vs State of Haryana 2010(3) JCC 1842 (SC), Rajinder Singh Vs State of Punjab 2010 (1) CC Cases (HC) 60 (P & H), Harbans Singh Vs State of Punjab 2010 (2) CC Cases (HC) 287 (P & H), Ashok Kumar Vs State of Haryana 2011 (1) CC Cases (HC) (P & H) 281, Rajinder Prasad Vs State 43 (1991) DLT 28, Som Prakash Vs State of Delhi (1974) 3 SCR 200 & Lachman Dass Vs State CBI Vs N. S. Kain CC No. 19/2012 17/59 of Punjab AIR 1970 SC 450.
14.5 Ld. Defence Counsel further argued that from the evidence on record particularly in view of the statement of PW-1 and PW-7, two views are possible because PW-1 has stated that the bribe amount was kept on the TV trolley on the indication of accused by a visual gesture while PW-7 has stated in his cross-examination that bribe amount was kept on the TV trolley when the accused had left the room for sometime. Thus, on the issue of handing over the bribe, two views are possible of which benefit of doubt must be given to the accused. In support of his version, he relied upon the judgments T. Subramaniam Vs State of Tamilnadu AIR 2006 SC 836, Vikramjit Singh @ Vickey Vs State of Punjab 2007 (1) Crimes 181 and Smabhaji Hindurao Deshmukh & Ors Vs State of Maharastra 2008 (1) C. A. R. (SC) 235.
14.6 Ld. Defence Counsel further argued that raid report and site plan are not admissible as contents of these documents are based on the questioning on the police official and narration given by the witness. In support of his submission, he relied upon the judgments Santa Singh Vs State of Punjab AIR 1956 SC 526 and Ram Krishan Mithan Lal Sharma & Ors Vs State of Bombay AIR 1955 SC 104.
14.7 Ld. Defence Counsel further argued that testimony of Trap Laying Officer (PW-8) and Investigation Officer (PW-13) cannot be accepted as they are not the witnesses of demand at the spot nor for the pre-trap demand. Lastly, he argued that prosecution was unable to prove the motive. He submitted that the accused was not in a position to do any CBI Vs N. S. Kain CC No. 19/2012 18/59 favour to the complainant, therefore, there was no question for seeking of bribe and giving of bribe. Thus, prosecution is unable to prove its case and accused deserves an acquittal.
15. This fact has not been disputed during the trial that the complainant PW-1 Sanjeev Singh, PW-7 Satpal Singh and PW-5 Tilak Raj Anand had raised unauthorized construction in Block-18, Kalkaji in their respective flats. This is also not a disputed fact that a demolition drive was carried out by the MCD which was duly approved by the Commissioner, MCD, on the proposal of the accused N. S. Kain, who was Director, JJ & Slum. It is also not in dispute that the demolition drive was stopped and it was never carried out further later on. The prosecution case against the accused is that he had demanded bribe from the occupants of the houses namely Sanjeev Singh, Satpal Singh, Tilak Raj Anand and others for not carrying out further demolition work. In lieu of this protection from demolition, the bribe was sought. The complainant PW-1 and co-complainant PW-7 had discussed it with other occupants of the houses and they decided to take some action. The matter of bribe was discussed with the accused but the complainant preferred to lodge a complaint with the CBI instead of paying that bribe to the accused. He along with co-complainant Satpal (PW-7) visited the CBI office and lodged the complaint Ex. PW-1/A. This complaint was verified by Inspector R. V. S. Lohmor. He also got two independent witnesses to lay the trap. During the trap, the bribe amount was transferred to the accused and it was recovered from his house. So the facts which need to be proved by prosecution are that accused made a demand of bribe; he accepted the bribe consciously on 26.04.1997 and the bribe amount was recovered from his conscious possession. Let us now go CBI Vs N. S. Kain CC No. 19/2012 19/59 through evidence led by prosecution to prove these facts.
SANCTION 16 Sanction under Sec. 19 of the PC Act is the sine qua non for prosecution of a public servant under the Prevention of Corruption Act, 1988. A valid Sanction under Sec. 19 of the Act envisage grant of Sanction by a Competent Authority and due application of mind to the facts of the case. Needless to say that a grant of Sanction is not an idle formality and the Competent Authority has to give due consideration to the material placed before it before grant of Sanction.
16.1 The prosecution has examined PW-2 Sh. Jalaj Srivastava Commissioner, Industries, Government of NCT of Delhi. He was the Director (CPS) Ministry of Home Affairs, Government of India during October, 1998. He has deposed that a request was received from CBI for grant of sanction against accused Nihal Singh Kain, DANICS Officer, while working as Director, MCD (Slum & JJ). The said file was processed by him and he has proved the said Sanction as Ex.PW2/A which was given by Home Minister and authenticated by him.
16.2 In the written arguments, Ld. Defence Counsel has stated that Sanctioning Authority accorded Sanction in a mechanical manner and he did not bring the Sanction file in the Court. This argument of Ld. Counsel is devoid of any merit in view of the statement of PW-2.
16.3 In the cross-examination, PW-2 has testified that a draft sanction CBI Vs N. S. Kain CC No. 19/2012 20/59 order, as is usual, was sent by CBI, but the order was typed in Home Ministry in his office and is not a verbatim reproduction of the draft as there are always some corrections and modifications. He has denied the suggestion that complete record was not put up before the Competent Authority and the sanction was granted without application of mind.
16.4 With regard to not producing the Sanction file, it may be stated that there was no requirement for that. The grant of Sanction is an administrative act and in case the accused had any doubt, he could have asked for the relevant file during the cross-examination of this witness. The statement of PW-2 has proved that the Sanction has been granted by a Competent Authority with due application of mind.
DEMAND, ACCEPTANCE AND RECOVERY 17 The accused has faced the trial for the offences punishable under Sec. 7 & Sec. 13(1)(d) of the PC Act. The essential ingredients of Sec. 7 of the Act are i). the accused must be public servant, ii) he must accept, obtain or agree to accept or attempt to obtain gratification other than legal remuneration, iii) as a motive or reward for doing or forbearing to do any official act etc, iv) showing or forbearing to show favour or disfavour to any person in the exercise of his official function.
17.1 Sec. 13(1)(d) define criminal misconduct by public servant. A public servant commit offence of criminal misconduct if i) by corrupt or illegal means, ii) by abusing his position as a public servant or iii) while holding office a public servant iv) obtains for himself or any other person CBI Vs N. S. Kain CC No. 19/2012 21/59 any valuable thing or pecuniary advantage.
17.2 The evidence on the record needs to be evaluated to ascertain if the necessary ingredients of the offences under Sec. 7 & 13(1)(d) of PC Act stand proved or not.
OCULAR EVIDENCE 18 As a demand, acceptance and recovery of bribe amount is sine qua non for the offences under Sec. 7 & 13(1)(d) of PC Act, I would like to first discuss the oral testimony of witnesses, in this regard.and then the scientific evidence.
18.1 PW-1 Sanjeev Singh is the star witness of the prosecution. He has deposed that he was residing at 18/575, Kalkaji, on the third floor in the year 1996-1997. He along with all the other occupants of ground, first and second floor, had raised some additional construction. He further deposed that in order to regularize the additional construction raised by them, a sum of Rs.50,000/- was demanded by accused N.S. Kain, who was working as an Assistant Director, MCD and on his request, the accused had agreed to accept Rs.40,000/- and had directed him to come to his house with Mr. Satpal Singh, occupant of the ground floor. They could arrange Rs. 15,000/- and then he along with Satpal (PW-7) went to CBI Office where he gave his complaint Ex.PW1/A to the SP, CBI, which bears his signatures at point-A. He deposed that they were introduced to Inspector Lohmor and two other witnesses to whom he told about his complaint. He gave currency notes of 100 and 50 denomination and their number were CBI Vs N. S. Kain CC No. 19/2012 22/59 noted down. He further deposed that that a powder was applied to the currency notes and they were wrapped in the old newspaper. The currency notes were given to him which were to be handed over to the accused on his demand. He further deposed that a tape recorder was also procured in which his voice was recorded and its blankness was ensured. He deposed that the proceedings conducting in CBI office were reduced into writing vide Handing Over Memo Ex. PW-1/B. The number of the currency notes recorded in Annexure-A (Ex. PW-1/C).
With regard to the trap proceedings, he deposed that he along with Satpal went inside the house of the accused. They talked about Rs. 40,000/- and that only Rs. 15,000/- could be arranged and balance amount would be paid later on. He has further deposed that on the asking of the accused by gesture of his hand, he had kept the bribe amount on the TV trolley. He further deposed that he told the accused that remaining Rs. 25,000/- would be handed over to him by Mr. Satpal on Monday. After about 15-20 minutes, he along with Satpal came out. The CBI team along with them entered the house of the accused. He deposed that the hands of the accused were washed in a solution which got turned pink. The solution was transferred in bottles which were sealed. The wash of the currency notes also taken and their number were tallied by the member of the raiding party with the numbers recorded in Annexure-A (Ex. PW-1/C). He deposed that the recovery memo Ex. PW-1/D was prepared and accused was arrested. He has further deposed that the accused informed that he had kept the money in the Almirah which was later on recovered by the independent witnesses lying between register and a folder. He further deposed that the newspaper in which the money was wrapped was recovered from a dustbin in the room. He has identified the currency notes CBI Vs N. S. Kain CC No. 19/2012 23/59 produced in the Court Ex. P-1 to P-200 as the same which were recovered from an Almirah in the room of the accused and which were kept by him on the TV trolley wrapped in the newspaper.
He further deposed that he was once more called to CBI office after 3-4 days where both the independent witnesses were also present. He deposed that one cassette was de-sealed and was played in which he identified his own voice, the voice of accused and the voice of Satpal. He further deposed that the transcription Ex. PW-3/C is the same which was shown to him and the sentences marked with M-1, M-2 and M-3 in transcription Ex. PW-3/C are the sentences spoken by the accused, himself and Mr. Satpal Singh respectively.
The cassette was played in the Court. After formal identification of voice, the witness has identified his voice stating:
"main barelly jaa raha hoo, accused had asked, kab jaoge.
Witness stated, "kal jaunga"
Witness stated, "to kya baat hue aapse"
The witness has identified his voice, saying "Peechlee baato kaa kya fyada", "Agai kee socho" . Witness has further identified his voice, "Shaheb se kya baat hue", "kitne ki baat hui". The witness has identified the voice of accused, "maine to pachas bola tha dono admiyo ke liye".
The witness has identified his voice in the next sentence saying that, "Hakeekat yeh hai hum apko pachas nahee chalish dainge, pandhara aaj de raheh hai, mai inko (Satpal) cheque dai jaoo gaya, yeh (satpal) Monday ko dash baje tak 25000/- har halat mai de jayenge. Yeh rakh lijeaya aaj, sahab aaj pandhara hee ho pay hai." Witness has identified voice of accused saying, "aisi koi baat nahin hai" and his voice, "aab tak jo hoo gaya ho CBI Vs N. S. Kain CC No. 19/2012 24/59 gaya agai aap dhyan karna.
18.2 In the cross-examination, he denied the suggestion that Ex. PW-3/C was seen him first time in the Court and that he had never identified voices of any person from any cassette or other recording instruments at any point of time, prior to his testimony recorded in the Court. He has denied the suggestion that his entire testimony in the court is false and that no demand of money was ever made by the accused from him or from the person named by him before the Court. He has also denied the suggestion that no recovery of tainted money took place from the Almirah or from any other room of the house of accused or that the moment CBI officials entered the house of accused along with him, he planted the said money in the same room wrapped in the same newspaper and caused the recovery of the said planted money in the said newspaper only from the drawing room. To a specific question, the witness has replied that the cassette was played and heard in the house of accused when the accused was apprehended but could not say whether it was reduced into writing or not. He could not say as to who had prepared Ex. PW-3/C and when it was prepared, as it was not prepared before him. He has denied that when Mr. Kain came there, he along with Mr. Satpal Singh had a shake hand with him, but voluntarily stated that they had said Nameste only by folding their hands only and not by words and accused Kain had also replied in the similar manner to their Nameste. Accused Kain had not asked the purpose of their visit to his house. Some of the conversation marked against M-1 and M-2 in Ex. PW-3/C was not clear but has denied that Ex.PW3/C is the result of fabrication and the conversation contained in micro cassette played in the court was fabricated by him in collusion with his companion. He had CBI Vs N. S. Kain CC No. 19/2012 25/59 never heard the voice of N.S. Kain beside this cassette, recorded in any other cassette. He has denied that at no stage, he had met the accused,prior to the day when he had visited his house with CBI Officer.
18.3 The statement of PW-1 has received corroboration and support from the statement of PW-5 Tilak Raj Anand, PW-6 Raj Kishore Sharma, PW-7 Satpal Singh and PW-14 Raj Roop Vashisht.
18.4 PW-5 Shri Tilak Raj Anand had deposed that he was a resident of first floor of House No.567/18, DDA Flats, Kalkaji, New Delhi in the year, 1996, Sh. Satpal Singh (PW-7) was residing at ground floor and Mr. Sanjeev Singh (PW-1) was living on the third floor and an Air Force employee was resident of second floor. He deposed that they all had made some additional constructions in their respective portions and the demolition squad had partially demolished the construction. He further deposed that Mr. Satpal and Sanjeev Singh had informed him that there is likelihood of further demolition if some action is not taken. He further deposed that they informed him that they have met Mr. N. S. Kain (accused) who was demanding Rs. 50,000/- for stopping further demolition, however, he himself declined to pay the bribe.
18.5 In the cross-examination by the accused, he had stated that similar unauthorized construction was also made in other houses of the colony and these houses were JJ tenements. He stated that Mr. Satpal had raised unauthorized construction of two additional rooms at the ground floor. He further stated that one Mr. Ganga Ram from MCD accompanying the demolition squad, had told him that remaining part of the construction can CBI Vs N. S. Kain CC No. 19/2012 26/59 be demolished at any time. He denied the suggestion of the accused that he was a party to the information relating to false implication of the accused by Mr. Sanjeev Singh and Satpal Singh.
18.6 Thus, PW-5 has supported the prosecution case to the extent that unauthorized construction was raised by the complainant and other residents of the same premises with different flat number and the said unauthorized construction was partly demolished. His statement also shows that the threat of further demolition of their additional construction was looming large and the complainant Sanjeev Singh and co-complainant Satpal Singh had told him that a bribe has been asked to protect the construction from further demolition.
18.7 PW-6 Shri Raj Kishore Sharma is an independent member of the trap team. He has corroborated the testimony of complainant PW1 Shri Sanjeev Singh about the pre-trap as well as post trap proceedings. He is a witness to the recovery of bribe amount from the house of the accused and also a witness to the hand wash of the accused which had turned pink when the finger tips of the accused were dipped in the solution of sodium carbonate.
18.8 PW-6 Raj Kishore Sharma was Senior Telegraph Operative Assistant in Central Telegraph Office, who had joined the CBI team on the direction of his officer along with Sh. R. R. Vashisht. He has stated that the he along with one R. R. Vashisht had gone to CBI office on 26.04.1997. They were introduced to the complainant Sanjeev Singh, who had made the complaint against N. S. Kain, Deputy Director, Slum and JJ. He deposed that he had questioned Sanjeev Singh and found his complaint Ex. PW-1/A as genuine.
CBI Vs N. S. Kain CC No. 19/2012 27/59With regard to the pre-trap proceedings, he deposed that complainant had produced Rs. 15,000/- consisting of 100 GC notes of 100 denomination and 100 GC notes of 50 denomination. The distinctive number of GC notes were noted down in a piece of paper. He deposed that the currency notes were treated with a powder and they were wrapped in a newspaper. He along with R. R. Vashisht signed the said newspaper. He deposed that the trap money in the newspaper was kept in the right side pocket of complainant Sanjeev Singh, who was directed to give the same to N. S. Kain on specific demand and not otherwise. He further deposed that the complainant was also given a transmitter which he had kept in his pocket. One ear phone and a recording device was given to other witness namely R. R. Vashisht to hear the conversation. He further deposed that the proceedings conducted at CBI office were recorded in a memo Ex. PW-1/B which was signed by him. He further deposed that the trap team had reached Government Flats Greater Kailash. On receipt of pre-appointed signal, they all entered the house of the accused. The accused was apprehended by the CBI official by wrist of left and right hand and he was asked about the bribe amount of Rs. 15,000/-. The complainant Sanjeev Singh had told that as per the direction of the accused, he had kept Rs. 15,000/- wrapped in a newspaper on a TV trolley in the drawing room but the bribe amount was not found available at the TV trolley.
He further deposed that the hand wash of the accused were taken and the solution had turned pink. The accused later on disclosed that he had kept the bribe amount in the Almirah kept in the room adjacent to the drawing room. The amount recovered from the adjoining room was counted and tallied with the number of GC notes recorded on Annexure A (Ex. PW-1/C). The newspaper in which currency notes were wrapped was CBI Vs N. S. Kain CC No. 19/2012 28/59 found in a dustbin. The said newspaper and the register and folder from which the currency notes were recovered, were also washed and the solution which turned pink was seized. He deposed that the recovery memo (Ex. PW-1/D) prepared at the spot recording the proceedings conducted, was signed by him on all the pages at point B. He further deposed that the site plan Ex. PW-6/A was also prepared and it was signed by him. The personal search memo and seizure memo Ex. PW-6/B was also prepared and it was signed by him.
He further deposed that he was once again called at CBI office and in his presence, specimen voice of accused N. S. Kain was taken vide Ex. PW-6/D and it was also signed by him at point A. This witness correctly identified the accused N. S. Kain in the court.
18.9 The witness has thus supported the prosecution case and corroborated PW-1 with regard to the pre-trap and post-trap proceedings. Although, this witness was declared hostile by the prosecution with regard to his statement that "the complainant had dialed a telephone number from CBI office and talked to accused N. S. Kain which was recorded". He explained in the cross-examination by the Prosecutor that he had given this statement on 29.07.2008 in the Court in the state of confusion. He also clarified his statement X 1 to X 1 recorded on 29.07.2008 and stated that the newspaper was recovered by him from the dustbin. He has been thoroughly cross-examined by Ld. Defence Counsel. He admitted that before his testimony was recorded on 29.07.2008 in the Court, he was briefed by the official of CBI about the details of his statement. However, he volunteered to add that he has deposed truth and not on the basis of tutor. He denied the suggestion that the fingers of the accused were dipped CBI Vs N. S. Kain CC No. 19/2012 29/59 by a CBI official after holding his hand and no colour was changed. He also denied the suggestion that the accused did not make disclosure about the money being kept in the Almirah. He stated that he had recovered the money from the Almirah after the accused had disclosed the place.
Thus, this witness has also corroborated the statement PW-1 and the prosecution case was supported by him.
18.10 PW-7 Sh. Satpal Singh is a co-complainant, who had accompanied PW-1 Sanjeev Singh to the CBI when the complaint Ex. PW-1/A was submitted in the office of CBI. In the premises in which unauthorized construction was raised, PW-7 was occupying flat No. JJ-18/563, Kalkaji on the ground floor. He has deposed that some extra construction was made by the residents of these flats, which was demolished on the order of N. S. Kain, Director, JJ Slum. He deposed that Sh. Ganga Ram Demolishing Officer had threatened them to give money and meet N. S. Kain otherwise further demolition will be carried out in their flats. He further deposed that Sanjeev Singh had informed that N. S. Kain had demanded Rs. 50,000/- as bribe for not demolishing the remaining extra portion constructed by them. He deposed that they decided to make a complaint before CBI and therefore, he along with Sanjeev Singh went to CBI office and gave a complaint in writing. Thereafter, he has corroborated the statement of PW-1 Sanjeev Singh and that of PW-6 Raj Kishore Sharma with regard to pre-trap proceedings and the trap proceedings.
During his examination, the Cassette mark Qa (Ex. P-201) was played. He identified the voice of accused N. S. Kain, though could not explain some of the dialogues spoken by him. He also identified voice of CBI Vs N. S. Kain CC No. 19/2012 30/59 Sanjeev Singh and his own, which was marked as S-1 to S-1 on transcript Ex. PW-3/C. Then he also identified the voice of complainant Sanjeev Singh stating "he could arrange Rs.15,000/- remaining he will pay on Monday in all probabilities", which is recorded in transcription Ex.PW3/C from N1 to N1. He has further identified the voice of accused N.S. Kain from point X to X stating "nahi-nahi aisi koi baat nahi hah". Then he again identified the voice of N.S. Kain talking about the file and the same was marked from X1 to X1 on Ex.PW3/C. He further identified the voice of Sanjeev Singh stating to him "main to kahin ja raha hu, parso paise inko jarur de jana" and the same was marked as N2 to N2 on Ex. PW3/C. He then further identified the dialogues between Sanjeev Singh and N.S. Kain, wherein Sanjeev Singh was asking N.S. Kain, "Chalis ke baad ab koi baat to nahi hogi" and the same was marked as N3 to N3 on Ex.PW3/A. He has again identified the voice of Sanjeev Singh at point N4 to N4 and further at point marked as N5 to N5. He further identified the voice of accused N. S. Kain at point marked as X2 to X2. He further identified the voice of accused N. S. Kain stating "koi baat ho to mere se baat karna" and further "tumhare area main hamara koi admi aye to hame batana" at point marked as X3 to X3. He has deposed that the dialogues mentioned in the transcript Ex. PW-3/C as M-1, M-2 and M-3 are of accused N.S. Kain, of Sanjeev Singh and his own respectively.
18.11 In the cross-examination, the witness had not supported the prosecution case with regard to his visit to office of accused with Sanjeev Singh; the demand by accused N. S. Kain in his presence; the preparation of Ex. PW-1/B and about the instruction given to Sanjeev Singh to switch on the recording device prior to entering house of accused N. S. Kain. He CBI Vs N. S. Kain CC No. 19/2012 31/59 also stated in the cross-examination by accused that the accused had gone out of the room for some time. He admitted the suggestion that during the period of absence of N. S. Kain from the drawing room, Sanjeev Singh had kept tainted GC notes wrapped in a newspaper on a TV trolley. He also admitted the suggestion that the hand wash of accused N. S. Kain were not taken in his presence and he also denied his knowledge about the place from where the tainted money was recovered though he was certain that it was recovered from the house of accused.
18.12 Since the witness had turned hostile to the prosecution during his cross-examination, the Ld. Public Prosecutor sought permission to declare him a hostile witness which request was allowed by the Court in view of the judgment in the case of Daya Bhai Chaghan Bhai Thakker Vs State of Gujurat AIR 1964 SC 563. However, during the cross-examination by Ld. Public Prosecutor, also the witness reflected his hostility to the prosecution.
18.13 When a witness who support the prosecution in the examination in chief but does a somersault in the cross-examination by the Defence Counsel specially when there is a long gap in his examination and cross- examination, an inference of the witness being won over can be drawn. The Hon'ble Supreme Court while dealing with such a situation in the case of Khujji @ Surender Tiwari Vs State of MP, AIR1991SC1853, was of the view that the statement of such a witness cannot be washed out all together and his statement recorded in examination-in-chief can be taken into account if it support the prosecution case. Thus, the statement of PW-7 in examination-in-chief can be taken into account in favour of the CBI Vs N. S. Kain CC No. 19/2012 32/59 prosecution.
18.14 PW-14 is Raj Roop Vashisht, who is also an independent witness from Central Telegraph Office, who along with his colleague Raj Kishore Sharma (PW-6) joined in the investigation. He deposed that the complaint Ex. PW-1/A was shown to him and he was satisfied with the allegation written in the complaint. Thereafter, he has spoken about the pre-trap proceedings / formalities. His deposition is in consonance with the prosecution case. He has stated that during the trap proceedings he was directed to hear the conversation by fixing the ear-phone which was connected to recorder and the mike of recording was given to Sanjeev Singh, which was fitted in his shirt. He deposed that the handing over memo Ex. PW-1/B was duly signed by him. He deposed that during the trap proceedings, he had fitted ear-phone and he started hearing the conversation from the other side. The conversation was with regard to demand of bribe. He deposed that he had heard over the ear-phone that there was offer of Rs. 15,000/- as a part of transaction and remaining part of money was to be paid later on. He further deposed that after the apprehension of the accused, his hands were dipped in solution which turned pink and the solution was kept in two separate bottles marked Ex. P-203 and P-204. He deposed that the accused had disclosed that he kept the money in the Almirah of his bed-room. The currency notes / bundles were found in the book shelf. He further deposed that the newspaper in which GC notes were wrapped, was also recovered, which was also dipped in the solution which turned pink and the solution was sealed in a bottle Ex. P-206. He deposed that all the recovered items were taken into possession vide recovery memo Ex. PW-1/D. He further deposed that GC CBI Vs N. S. Kain CC No. 19/2012 33/59 notes Ex. P-1 to P-100 of 100 denomination and P-101 to P-200 of 50 denomination each were the same GC notes which were handed over to Sanjeev Singh while preparing handing over memo.
18.15 In the cross-examination, he denied the suggestion that accused did not make any disclosure that the money was kept in the Almirah in the bed- room. He also denied the suggestion that no currency notes were found in the book shelf. He also denied the suggestion that no hand wash of the accused was taken. He also denied the suggestion that no recovery of newspaper was made in his presence. In the cross-examination, he further stated that during the search of the house of accused, he had found a suitcase in the house of accused full of currency notes. He categorically denied the suggestion that he was concealing correct facts.
ELECTRONIC EVIDENCE AND CHEMICAL REPORT
19. The oral testimony of prosecution witnesses is supplemented by electronic evidence and scientific evidence in the form of Chemical Report. The significance of electronic evidence is that it connects the accused with the conversation which took place at his residence with the complainant and during which the bribe amount was kept by the complainant at the instance of the accused on the TV Trolley. The Chemical Report indicates the handling of the bribe amount by the accused.
19.1 PW-3 Dr. Rajinder Singh, Principal Scientific Officer, CFSL Delhi has deposed that on 10.7.1997, he received two sealed parcels, sealed with the seal of CBI, ACB from the Office of the CBI, ACB, New Delhi which CBI Vs N. S. Kain CC No. 19/2012 34/59 were marked as Ex. Qa and Sa. The seal was intact.
The parcel "Qa" contained an Audio cassette which was marked by him as Ex. Q(a). It contained questioned recorded conversation between three persons. The words "kab ja rahe ho ..." was marked by him as Ex. Q a(i).
The second parcel also contained audio cassette in which specimen voice of accused N. S. Kain was recorded. He deposed that he examined the questioned voice recorded in cassette Q(a) with respect to specimen voice recorded of N. S. Kain in cassette S (a) by auditory and voice spectrography method and found that the questioned voice recording in cassette Q(a) is similar to the specimen voice recording in cassette S (a). He has proved his report No. CFSL-97/P-338 dated 17.12.1997 as Ex.PW3/A describing in details examination of exhibits and his result and has identified his signatures at point encircled-A. The transcription of recorded contents of cassette marked "Sa" was prepared by him. The same is exhibited as Ex.PW3/B. He also deposed that transcription of cassette "Qa" running into 10 pages, was prepared by his Assistant under his supervision, which is Ex.PW3/C. The transcription was correctly prepared by repeated listening.
19.2 In the cross-examination on behalf of accused, the witness has stated that he has done Ph.D in the field of Photo acoustic which deals in study of sounds. He has deposed that he had 20 years of experience in the field of forensic voice identification and he has carried extensive research in this field and published many research papers in Indian & Foreign Journals. He admitted that he had not recorded the specimen voice of the suspect prior to comparing the same with the voice said to contain the voice of Mr. CBI Vs N. S. Kain CC No. 19/2012 35/59 N.S. Kain. He has denied that his report Ex.PW3/A does not conform to the standards and the tests laid down in the books on Forensic Voice Identification.
With regard to the portions reflected by doted lines in Ex.PW3/C, he deposed that it reflect that these portions of speech in cassette "Qa" contain inaudible sounds and was not comprehended by him. He admitted that Ex.PW3/B & Ex.PW3/C do not contain the description or name of the person who is represented as speaker M1, M2 & M3 in the transcription. He has denied that he had given biased and incorrect report or that he had given the report on the asking of Shri Virender Thakran (IO) or the SP, ACB, CBI in order to support their false case. He has also denied the suggestion that he was not an expert in forensic voice identification or that no identification of voice was at all conducted and Ex.PW3/A was merely made to suit the interest of CBI, but has stated that CFSL is administratively controlled by CBI.
19.3 PW-4 Shri K.S. Chhabra, retired S.S.O., CFSL, New Delhi has deposed that on 09.05.1997, five sealed bottles were received in CFSL sealed with the seal of ACB, CBI ND 62/96. Seal was intact and tallied with the specimen seal. All the five bottles contained pink coloured liquid with sediments and were marked as RHW, LHW, RCW & PWS and JMCR. On chemical analysis, the contents of these bottles gave positive test for phenolphthalein and sodium carbonate. He has proved his report as Ex.PW4/A, bearing his signatures.
19.4 In the cross-examination by Ld. Counsel for accused, the witness has stated that details of the test conducted and the date of the test are not mentioned in the report Ex.PW4/A. He has denied the suggestion that no CBI Vs N. S. Kain CC No. 19/2012 36/59 test in fact had been conducted and the report had been prepared purely at the behest of CBI.
STATEMENT OF TRAP LAYING OFFICER AND INVESTIGATING OFFICER
20. Now, I come to the statements of trap lying officer and Investigation Officer. The significance of their statement cannot be undermined only because of their official status. Therefore, their statement need to be appreciated in the same manner as any other witness.
20.1 PW-8 Inspector R. V. S. Lohmor was the trap laying officer. The complaint of PW-1 Sanjeev Singh was assigned to him for inquiry and further action. He has deposed that on 26.04.1997, RC No. 27(A)/97/DLI alive was registered on the complaint of Sanjeev Singh alleging that accused N. S. Kain had demanded bribe of Rs. 50,000/-. He deposed that he had made inquiry about the reputation of the accused and he came to know from the sources that he is not enjoying good reputation and is a corrupt officer. After discussion with Superintendent of Police, decision was taken to lay a trap. Two independent witnesses namely Raj Kishore Sharma and R. R. Vashisht from Central Telegraph Office were called by the Duty Officer and the pre-trap formalities were started. The complainant was introduced to independent witnesses and his complaint was shown to them. These independent witnesses satisfied themselves about the complaint. Thereafter, he has corroborated the statement of PW-1 and PW-7 with regard to pre-trap formalities and preparation. His statement with regard to the trap proceedings and thereafter corroborate CBI Vs N. S. Kain CC No. 19/2012 37/59 and support the statement of PW-1, PW-7, PW-6 and PW-14. He has stated that recovery memo Ex. PW-1/D was prepared which he had signed at point D. He prepared rough site plan Ex. PW-6/A and a personal search cum seizure memo Ex. PW-6/B. He has also deposed that the search of the house of accused led to further recovery of cash amount of more than Rs. 16 Lacs and the documents were seized vide a memo which were filed in a separate disproportionate assets case registered against the accused. He further deposed that he had recorded the statement of PWs namely Sanjeev Singh, Satpal, Raj Kishore and R. R. Vashisht. The investigation, thereafter, was transferred to Inspector V. K. Thakran.
20.2 A detail and piercing cross-examination could not shake the credibility of this witness. He denied the suggestion that the independent witnesses were handpicked by him. He also denied the suggestion that the micro-cassette was tampered with after learning the innocence of the accused. He denied the suggestion that Ex. PW-1/A (i.e the complaint of Sanjeev Singh) was prepared after the apprehension of the accused. He denied the suggestion that he had learned that Sanjeev Singh and Satpal Singh planted the money in the house of accused during his (accused) absence from the room on the said date. He denied the suggestion that the story of keeping tainted GC notes wrapped in newspaper at the TV trolley and recovery thereof from some other room has been made up because the trap had failed. He also denied that the story of demand on the part of the accused by gesture is also fake. He categorically denied that he was in collusion with the complainant and falsely implicated the accused.
20.3 PW-13 is Inspector Virender Thakran. He deposed that he was CBI Vs N. S. Kain CC No. 19/2012 38/59 entrusted investigation of the case from Inspector R. V. S. Lohmor. He obtained Sanction for Prosecution from Competent Authority. He deposed that transcription Ex. PW-3/B was prepared by CFSL. He also obtained specimen voice of accused N. S. Kain. He deposed that the specimen voice memo Ex. PW-6/D was prepared by him which bears the signature of accused N. S. Kain at point C, that of independent witnesses R. R. Vashisht and Raj Kishore Sharma at point D and A respectively. He deposed that after completion of investigation, the Charge-sheet Ex. PW-13/B was filed.
WITNESSES FROM THE MCD
21. The prosecution had examined the witnesses from the Slum & JJ Department of the MCD where the accused was Director, Slum & JJ. The purpose of examination of these witnesses is to show that the accused N. S. Kain has dealt with the file of demolition of unauthorized construction of the premises in question.
21.1 PW-9 is Sh. Ved Pal Basista, Executive Engineer, Slum & JJ, MCD. He deposed that in June, 1995, he was Assistant Engineer in the Mobile Squad which used to visit / inspect the site of unauthorized construction, land grabbing and report to the Senior Officers. He deposed that he used to submit the report of unauthorized construction to Director, Slum & JJ-II. He deposed that N. S. Kain was also Director, Demolition. In his deposition, he further stated that he conducted inspection in Block-18, Kalkaji. He submitted that the note on Ex. PW-9/A-1 in file Ex. PW-9/A regarding inspection in respect of tenement No. 563, Block-18, Kalkaji for grabbing of slum land was written by J. N. Bhatia on his dictation.
CBI Vs N. S. Kain CC No. 19/2012 39/5921.2 In the cross-examination, he said that on his inspection, he had seen unauthorized construction is going on in flat No. 563, Block-18, Kalkaji, Delhi.
21.3 PW-10 is Ganga Ram, Superintendent (Demolition). He deposed that his duties as Superintendent (Demolition) was execution of demolition / removal of unauthorized construction, encroachment, eviction and sealing. This witness has given the procedure followed to execute a demolition order. He deposed that accused N. S. Kain was Director, Slum & JJ at the relevant time. He deposed that AE (MES) had reported the unauthorized construction in Flat No. 563, Block No. 18, Kalkaji. The report was sent to Director, Slum & JJ on 31.10.1995, who sent the report for approval of demolition of unauthorized construction to the Commissioner, MCD, who gave the approval on 02.11.1995. He deposed that the file was sent back to Demolition Section through proper channel and the Joint Director (JJ) fixed date of demolition of construction in flat No. 563, Block No. 18, Kalkaji, Delhi as 07.12.1995. He further deposed as per the note dated 23.05.1996, the date of demolition was re-fixed as 07.11.1996 as the police force was not available. After re-fixing the date of demolition, the file was marked to Sh. O. P. Giri and thereafter to the Demolition Section. He deposed that he put the note (Ex. PW-10/C) on 09.09.1996 to the Director, L & H, in which he reported about the construction in flat No. 18/563, 18/567, 18/571 & 18/575, Block-18, Kalkaji. He further deposed that the date of demolition was fixed as 11.12.1996 on which 40% demolition was carried out and the note Ex. PW-10/D-2 was put up by him in this regard. The file was then sent to CBI Vs N. S. Kain CC No. 19/2012 40/59 Director, L & H, who put his noting on Ex. PW-10/D-3 at point B-10. The Director sent the file for legal opinion.
21.4 PW-11 is J. N. Bhatia, Photographer in MCD, Slum Department. He deposed that in file Ex. PW-9/A, the note Ex. PW-9/A-1 is in his handwriting. He also deposed that the photographs Ex. D-1 to D-3 pertains to property No. 563, Kalkaji.
21.5 PW-12 is O. P. Giri. He also deposed about the demolition order pertaining to property No. 18/563 and his statement is on the same line as that of PW-10 Ganga Ram.
EVALUATION OF EVIDENCE
22. The prosecution has to prove the elements of demand, acceptance and recovery of the bribe amount to bring the case within the confine of Sec. 7 & Sec. 13(1)(d) of the Act. So far as the demand is concerned, a direct evidence cannot be expected in all the cases. Nor there can be any specific mode of demand. Demand can be made directly or indirectly. The element of demand can be inferred from the circumstances and in given case demand can be by gesture also. One cannot expect a bribe taker to be vocal enough to demand bribe openly and in so many words. In the present case if the cumulative effect of statement of PW-1 Sanjeev Singh, PW-5 T. R. Anand and PW-7 Satpal Singh is considered, the element of demand would be obvious. PW-1 has categorically stated that the accused N. S. Kain had made initially a demand of Rs. 50,000/- and later on he agreed to accept Rs. 40,000/- as the bribe amount.
CBI Vs N. S. Kain CC No. 19/2012 41/5923. Ld. Counsel for the accused had questioned the statement of PW-1 on the ground that it is self contradictory and is also contradictory to the complaint Ex. PW-1/A. In the complaint Ex. PW-1/A, it is stated that N. S. Kain has again threatened to demolish the remaining part of unauthorized structure and for stopping the demolition he has demanded an amount of Rs. 50,000/-. He submitted that in his statement before the Court, PW-1 has deposed that N. S. Kain demanded Rs. 50,000/- for regularizing the construction. The Ld. Counsel further argued that PW-7 Satpal Singh in his statement has said that Ganga Ram had in fact demanded the money. Therefore, he argued, the evidence led by the prosecution on the issue of demand by the accused is not satisfactory. The Ld. Public Prosecutor on the contrary, submitted that these contradictions are minor and do not hit the core of the statement of these witnesses. The accused was at the helm of the affair. All the three witnesses have referred his name in their statement as the person who demanded the money to protect their construction from further demolition. In view of this, much importance cannot be given to the minor contradictions pointed out by Ld. Counsel for the accused. In the complaint Ex. PW-1/A, it is stated that demand of Rs. 50,000/- was for stopping the demolition. While PW-1 in the witness box stated that demand was for regularizing the construction. I hardly see any contradiction in both the statements as in both the cases the unauthorized construction was to be protected. The demand, therefore, was for protecting the unauthorized construction. Further, to say that as per statement of PW-7, Ganga Ram had demanded money would amount to reading statement of PW-7 in piece-meal. In fact he has said that demolition would be carried out further unless money is not paid to him CBI Vs N. S. Kain CC No. 19/2012 42/59 and they (PW-7 and other occupants) meet N. S. Kain. So PW-7 has not said anything contrary to prosecution case. The so called contradictions pointed out by Ld. Defence Counsel do not destroy the case of the prosecution that bribe amount was demanded for protecting the unauthorized construction. Moreover the evidence pertaining to demand has to be read with the evidence regarding the acceptance and recovery of the bribe amount and not in isolation. The circumstances in which the bribe amount was accepted and recovered indicate the existence of pre- existing demand for the bribe.
24. Now, I come to the evidence of the witnesses which shows the acceptance of the amount as the bribe money and the recovery thereof from the house of the accused.
25. In this regard, the statement of PW-1 and PW-7 is most important. As per PW-1, he along with PW-7 Satpal Singh had entered the house of the accused where they had discussion with the accused and on the gesture of the accused, he had put the bribe amount on the TV trolley. He also deposed that he had said that he could arrange only Rs. 15,000/- to which the accused said that there would be no problem and with the gesture of his hand he instructed PW-1 to put the bribe amount wrapped in the newspaper on the TV trolley. PW-1 further stated that he told the accused that remaining amount of Rs. 25,000/- would be handed over to him by Satpal (PW-7) on Monday.
26. PW-7 in his examination-in-chief has deposed that he along with Sanjeev Singh (PW-1) went to the house of accused and told accused that they have brought some amount and the remaining amount will be given CBI Vs N. S. Kain CC No. 19/2012 43/59 after two days. Thereafter, Sanjeev Singh (PW-1) kept the bribe amount wrapped in newspaper on a trolley / showcase. The Ld. Defence Counsel argued that PW-7 is a hostile witness and his statement in cross- examination proved the false implication of the accused. He referred to the statement of PW-7 in the cross-examination where he said money was kept by Sanjeev Singh on the TV trolley when accused was absent from the room. The Ld. Defence Counsel, therefore, tried to create the situation where two views are possible from the evidence on record. However, this is not the correct appreciation of the evidence. PW-7 has wholeheartedly supported the case of prosecution in his examination-in-chief recorded on 24.03.2011. But he has a change of heart when he was cross-examined by the Ld. Counsel for the accused on 08.08.2011. First of all, it may be stated that the evidence of a hostile witness cannot be effaced from the record altogether. That part of his statement which is supported and corroborated by other evidence, the same can be accepted.
27. In the case of Khujji @ Surender Tiwari Vs State of MP, AIR1991SC1853, the Hon'ble Supreme Court has observed:-
"But counsel for the State is right when he submits that the evidence of a witness, declared hostile, is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. It seems to be well settled by the decisions of this Court
- Bhagwan Singh v. State of Haryana, (1976) 2 SCR 921 : (AIR 1976 SC 202); Rabinder Kumar Dey v. State of Orissa, (1976) 4 SCC 233 :
(AIR 1977 SC 170) and Syed Akbar v. State of Karnataka, (1980) 1 SCR 95: (AIR 1979 SC 1848) -that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution CBI Vs N. S. Kain CC No. 19/2012 44/59 chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.
28. Because of the above said position of law and other evidence on record, I am of the view that the statement of PW-7 in his examination-in- chief is acceptable. His statement in the cross-examination is rather a struggle by him to wriggle out from his statement in examination-in-chief. The Ld. Counsel for the accused had argued that the statement of PW-7 clearly prove that the accused has been falsely implicated in this case. However, I am of the view that such a conclusion on the basis of statement of PW-7 would be erroneous. A composite reading of statement of PW-7 in his examination-in-chief and cross-examination would show that he shifted the stand purposely or there was some other consideration before him. PW-7 willingly visited house of accused with the complainant PW-1 Sanjeev Singh. He admitted his signature on the handing over memo Ex. PW-1/B which mention the entire pre-trap proceedings and the purpose of laying the trap. It is not his case that he was forced to join the CBI trap team. He is one of the affected party of the demolition drive. Therefore, he has been a part and parcel of the entire operation. He has signed the Recovery Memo Ex. PW-1/D, which contains facts as narrated by PW-1 (Sanjeev Singh) and PW-7 (Satpal Singh) that on the gesture of accused, amount was kept on TV Trolley by PW-1. PW-7 did not dispute the Recovery Memo Ex. PW-1/D when examined by prosecution. He deposed that " A memo was prepared incorporating all the proceedings of the spot correctly. The memo was explained in Hindi and I along with other trap CBI Vs N. S. Kain CC No. 19/2012 45/59 members signed the said memo. I have seen the said memo Ex. PW-1/D, it bears my signature at point C on all the 8 pages which I identify". This establish that he changed his stance in the cross-examination under some influence. The statement of the witness is to be taken into consideration as a whole and the statement of PW-7 in its entirety is supporting and corroborating the prosecution case on the issue of demand and acceptance of bribe.
29. The element of demand and acceptance is also evident from the transcript of the conversation between the accused, complainant and PW-7 Satpal Singh (Ex. PW-3/C). The Ld. Defence Counsel had argued that prosecution has failed to prove as to who has prepared this transcript. On the one hand, PW-3 Rajinder Singh says that the transcript was prepared by him but on the other hand, PW-1 says that the transcript was prepared in his presence.
30. Again this is a minor contradiction and cannot be given much importance in view of the overwhelming evidence on the transcript Ex. PW-3/C. The Ld. Counsel for the accused had argued that the transcript Ex. PW-3/C does not identify which sentence was spoken by whom. The transcript does not specify M-1, M-2 and M-3 to whom the conversation attributed. PW-3 in his statement has categorically stated that transcript Ex. PW-3/C was prepared by him. In the transcript, three speakers have been mentioned as M-1, M-2 and M-3. If the transcript would have been prepared by the Investigating Officer, then he would have mentioned the name of the speaker against each sentence. PW-3 was not aware about the names of the speakers in the transcript. Therefore, it was logical and CBI Vs N. S. Kain CC No. 19/2012 46/59 reasonable that he identified the speakers by M-1, M-2 and M-3 instead of their real names. The statement of PW-1 Sanjeev Singh would show that he is not sure whether the Ex. PW-3/C was prepared in his presence or not. This may be attributed to the time gap when he appeared in the court to depose as a witness and the incident. Therefore, I do not attach much importance to the contradictions pointed out by Ld. Defence Counsel.
31. The tape recorded conversation of which the transcript Ex. PW-3/C was prepared is relevant and admissible under the Evidence Act. The Ld. Counsel for the accused submitted that the identification of the voice is a must before tape recorded conversation is accepted in the Court. He has referred to a judgment in case of R. L. Malkani Vs State of Maharashtra (1973) 1 SCC 471, Mahavir Prasad Verma Vs Dr. Surender Kaur (1982) 2 SCC 258 and Nilesh Dinkar Pradhakar Vs State of Maharashtra II (2011) DLT (Cri.) 529.
32. There is no dispute with the legal proposition propounded in these judgments. Way back in the case of Pratap Singh Vs State of Punjab AIR 1964 SC 72 the Apex Court considered the issue and clearly propounded that tape recorded talks are admissible in evidence. As regard such evidence, Court is, however, required to take some safeguards i.e the voice of speaker must be identified, it should be audible, possibility of tampering ruled out, the cassette must be in the safe custody and the statement must be relevant to the case. As regard the tape recorded voice, proper identification of the same is a sine qua non. Apart from this, the time and place and the accuracy of the recording must be proved by the competent witness. Though the science of voice recognition may not be as CBI Vs N. S. Kain CC No. 19/2012 47/59 accurate a science as the science of finger printing but this evidence can always be used for corroboration purpose if not as a primary evidence. It is to be seen whether such evidence give any assurance and credibility to the version given by the independent witnesses.
33. In the present case, the statement of PW-3 is worth noting. He had received parcel containing cassette "Qa" and "Sa" which contained the recorded conversation between the accused, complainant and the specimen voice of the accused. As per his report Ex. PW-3/A, voice of accused in "Sa" matched with questioned voice in "Qa" (Denoted as M-1 in transcript Ex. PW-3/C). So far as the specimen voice of the accused is concerned, PW-6, PW-13 and PW-14 have deposed in tandem that the specimen voice of accused N. S. Kain was taken vide the memo Ex. PW-6/D. The accused has not disputed this nor there is any suggestion to any witness that his voice was taken under pressure and he was coerced to give such sample voice. Now, the cassette containing the conversation was played in the Court and PW-7 had identified the voice of the accused in the same. He also identified his own voice and the voice of complainant in the cassette Qa (Ex. P-201). Referring to the transcription Ex. PW-3/C, he submitted that the dialogues in the transcript against M-1 are that of N. S. Kain, against M-2 are of Sanjeev Singh and against M-3 are of his own. Even PW-1 has deposed that M-1 in the transcript Ex. PW-3/C are the sentences spoken by the accused while M-2 show sentences spoken by him and M-3 are those spoken by Satpal (PW-7). Both these witnesses have identified their voice and the voice of accused in Court when the cassette "Qa" was played. This meets the arguments of the Ld. Counsel for the accused that in the transcript Ex. PW-3/C, it is not clarified as to the who are the CBI Vs N. S. Kain CC No. 19/2012 48/59 speakers referred to as M-1, M-2 and M-3. After hearing the cassette, the witness PW-7 and PW-1 had identified what was spoken by the complainant and the accused and marked their dialogues on Ex. PW-3/C. Some of the relevant conversation may be referred to here:-
34. From portion N 1 to N 1, PW-7 has identified the voice of Sanjeev Singh (PW-1) stating that he could arrange Rs. 15,000/- and remaining amount he will be paid on Monday. He has identified the voice of accused N. S. Kain from X 1 to X 1 where he is talking about the case file. He has also identified the voice of N. S. Kain stating 'Koi baat ho toh mere se baat karna' and also ' tumhare area me hamhara koi aadmi aaye to hame batana'.
The cassette Qa (P-201) was also played before PW-1 Sanjeev Singh where he identified the voice of the accused at number of places. Some of the relevant conversation may be referred to here:-
The witness has identified his own voice 'Meh barelly ja raha hu'. The accused responded 'Kab jaoge'. The witness also identified voice of the accused 'Meh toh pachas bola tha, dono aadmiyon ke liye'. He identified his own voice in next sentence " Hakeeekat ye hah, hum apko pachas nahi chaalis dainge, pandra aaj dey rahen hah, main inko (Satpal) cheque de jaunga, ye (Satpal) Monday ko das bage tak Rs. 25,000/- har halat me de jaenge. Ye rakh lijeye aaj sahab pandra he ho paye hah".
35. PW-3 Dr. Rajinder Singh had carried out auditory examination and on the basis of comparison of questioned voices and specimen voice of the accused and voice spectrography examination and taking note of the CBI Vs N. S. Kain CC No. 19/2012 49/59 format, he found that the questioned voice in the cassette Qa was similar to the specimen voice in cassette Sa. He proved his report as Ex. PW-3/A. The accused could not bring anything on record to show any biasness in the statement of PW-3. The accused suggested to the witness that the report Ex. PW-3/A was prepared to suit the interest of CBI as CFSL is administratively controlled by CBI. Even if CFSL is administratively controlled by CBI, it will not be logical to draw the conclusion or inference that the report of the expert (Ex. PW-3/A) would be biased and unfair.
36. The conversation evident from the cassette Qa and its transcription Ex. PW-3/C clearly shows that the accused had accepted Rs. 15,000/- as a bribe amount. The discussion between the accused and the complainant was hovering on the issue of construction and the payment of Rs. 15,000/- as part payment. It leaves nothing for imagination that accused accepted Rs. 15,000/- as a bribe amount.
37. The recovery of GC notes tainted with phenolphthalein from the house of the accused in the presence of independent witnesses further proved the demand and acceptance of bribe amount by the accused. The statement of PW-1 Sanjeev Singh, PW-7 Satpal, PW-6 Raj Kishore Sharma, PW-8 Inspector R. V. S. Lohmor and PW-14 Raj Roop Vashisht, clearly proved the recovery of GC notes from the house of the accused. The fact that the GC notes recovered from the house of the accused were the same which were brought by the complainant and were smeared with phenolphthalein powder to be used for trap purpose, is established not only from the ocular evidence of above said witnesses but also from the chemical analysis report of PW-4 K. S. Chhabra. He has proved his report CBI Vs N. S. Kain CC No. 19/2012 50/59 Ex. PW-4/A. As per this report, he received five bottles containing pink colour liquid and on chemical analysis the contents gave positive test for phenolphthalein and sodium carbonate.
38. Ld. Counsel for the accused argued that the recovery is doubtful in view of the contradictions in the statement of witnesses. He refers to the statement of PW-6 Raj Kishore Sharma. It was submitted by Ld. Counsel that this witness in his examination-in-chief has stated that 'on direction of CBI, Sh. R. R. Vashisht went to the adjoining room and recovered the register containing some money'. Further, 'the newspaper in which bribe amount was wrapped earlier was found in dustbin and recovered from there by Sh. R. R. Vashisht'. The Ld. Counsel submitted that this statement of PW-6 is contrary to the statement of other prosecution witnesses. Therefore, the prosecution case with regard to the recovery is doubtful. I do not agree with the submission of Ld. Counsel on this because contradiction in the statement of witnesses are bound to emerge as the statements are recorded in the Court after a long gap of time and the contradictions results due to fading memory of the witnesses. It is settled position of law that the contradiction which do not go to the root of the case can be ignored. The Hon'ble Supreme Court has dealt with this issue when contradiction are noticed in the statement of witnesses and improvements are made by the witnesses in their statements. The law regarding contradiction was considered by the Hon'ble Supreme Court in case of Bharuda Broginbhai Harjibhai Vs. State of Gujarat, AIR 1983 SC 753 where in it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. Their Lordship have enumerated CBI Vs N. S. Kain CC No. 19/2012 51/59 following reasons for arriving on this conclusion:
1. "By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
2. Ordinarily, it is so happen that a witness is over taken by events.
The witness could not have anticipated the occurrence which so often has element of surprise. Thus mental faculties, therefore, cannot be expected to be attuned to absorb the details.
3. The powers of observance differ from person to person, but one may noticed another may not. An object or movement might emboss image on one person's mind, whereas it might go unnoticed on the part of another.
4. By and large, people cannot accurately recall a conversation and reproduced the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorded.
5. In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimate by guess work as spare of moment, at the time of interrogation and one cannot expect people make very precise or reliable estimate in such matter. Again it depends upon the time sense of individuals which varies from person to person.
6. Ordinarily, a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession of in a short time span. A witness is liable to get confuse or mixed up when interrogated later on.
7. A witness though wholly truthful, is liable to be overawed by the CBI Vs N. S. Kain CC No. 19/2012 52/59 Court atmosphere and the piercing cross examination made by counsel and out of nervousness mixed up facts, get confused regarding sequence of events, or fill up details of imagination at the spur of moment. The sub conscious mind of the witness sometime so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and an honest account of the occurrence witnessed by him perhaps it is a sort of physiological movement."
39. These contradictions are not going to the root of the case, therefore, can be ignored. It is the sub-stratum of the evidence which is to be seen. The evidence is not evaluated in piecemeal. It has to be considered in its entirety. The statement of independent witnesses I.e PW-6 and PW-14 cannot be ignored lightly. They are strangers to accused and have no reason to depose falsely in Court. Keeping this principle in mind, I am of the view that the prosecution has been able to establish the demand, acceptance and recovery of bribe amount from the accused.
MOTIVE
40. The Ld. Counsel for accused has argued that accused was not in a position to stop the demolition. He was not seized of the file, therefore, there was no occasion for him to ask for any bribe. On the contrary, he argued that the complainant had a motive to falsely implicate the accused because the accused has been very prompt in getting the unauthorized construction demolished which was raised by the complainant and other occupants of the premises. He argued that the complainant intended to CBI Vs N. S. Kain CC No. 19/2012 53/59 falsely implicate the accused with the connivance of the CBI officials.
41. A very big question has been raised by the Ld. Defence Counsel on the bonafide of the complaint and the investigation by CBI. Was it an act of revenge by the complainant against accused with the help of CBI?
42. Without the accused being in a position to influence any order or action for further demolition in his capacity of a public servant, the complainant would not offer him money. If accused was not in such a position and still the complainant ventured to pay money to the accused to falsely implicate in a corruption case then in my mind there has to be a very strong motive and reason for the complainant and the CBI as well for false implication of the accused. However, no such motive is evident on the record. No nexus indicated between complainant and CBI officials. The allegation of receiving of bribe by the accused are being proved by independent witnesses PW-6 Raj Kishore Sharma and PW-14 Raj Roop Vashisht. The statement of these independent witnesses, who are unknown to the accused and to the complainant, cannot be ignored lightly. Therefore, the allegation of false implication of the accused by the complainant with the connivance of the CBI has no force.
43. Moreover, once the demand, acceptance and recovery of bribe amount has been proved, the Court need not search for the motive. The Section 20 of the PC Act would come into picture and it shall be presumed that the accused accepted or obtained the illegal gratification as a "motive or reward" for doing or forbearing to do any official act etc. This presumption, however, can be rebutted by an accused either by cross-
CBI Vs N. S. Kain CC No. 19/2012 54/59examination of the witnesses or by adducing reliable evidence. If the accused fails to rebut the presumption, the same would stick and then it can be held by the Court that prosecution has proved that accused received the amount towards gratification(C. M. Girish Babu Vs CBI Cochin AIR 2009 SC 2022). In the case of State of A. P. Vs C. Uma Maheshwara Rao and Ors (2004) 4 SCC 399, it was observed by the Hon'ble Supreme Court that 'the only condition for drawing such a legal presumption under Sec. 20 is that during trial it should be proved that accused has accepted or agreed to accept any gratification'.
44. The Ld. Defence Counsel submitted that no presumption under Sec. 20 of the Act can be drawn in the light of the evidence on record. He submitted that simple recovery of the amount can never be used to invoke the presumption under Sec. 20 of the Act. His reliance is on judgments in Suraj Mal Vs State (1979) 4 SCC 725, Anand Swarup Aggarwal Vs State 1988 Cri. L. J. 756, Harbharose Lal Vs State of UP 1988 Cri. L. J 1122, State of AP Vs T. Venketashwar Rao 2004 (III) AD (HC) 493, T. Subramaniam Vs state of Tamilnadu AIR 2006 SC 836, State of Maharashtra Vs D. L. Rao Wankhede 2009 (4) RCR (Cri.) 217, Harbans Singh Vs State of Punjab 2010 (2) CC Cases (HC) 287 and State of Kerala Vs C. P. Rao (2011) 4 SCC 450. I have considered the judgments. The proposition of law is undisputed. I would refer to the judgment in State of Maharashtra Vs D. L. Rao Wankhede (Supra) in which the Hon'ble Supreme Court observed:-
"For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been CBI Vs N. S. Kain CC No. 19/2012 55/59 satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably the presumptive evidence, as is laid down in Sec. 20 of the Act, must also be taken into consideration ---".
Similarly in the case of State of Kerala Vs C. P. Rao (Supra), the Hon'ble Supreme Court has expressed the view that recovery of tainted money divorced from circumstances under which it is paid, is not sufficient to convict accused. Thus, the recovery of the tainted money has to be seen in the light of the surrounding circumstances in which it is paid and received by accused. The currency notes recovered from the house of the accused were kept by the PW-1 on a TV trolley in the drawing room but they were recovered from an Almirah in another room. This shifting of the currency notes cannot be without the notice and knowledge of the accused. The handling of the currency notes by accused also proved by CFSL report Ex. PW-4/A. The hand wash of accused gave positive test for phenolphthalein and sodium carbonate. Accused could not explain presence of phenolphthalein powder on his hands. His defence that this powder was smeared on his hands by CBI official, is not found convincing enough in the light of evidence on record. The conversation between the accused and the complainant clearly refer to payment of Rs. 15,000/- as part payment and balance of Rs. 25,000/- on some other date. These two factors by themselves are sufficient to raise the presumption under Sec. 20 of the Act.
45. In the present case, the prosecution has not only proved the recovery of the bribe amount but the demand and acceptance as well. Factum of CBI Vs N. S. Kain CC No. 19/2012 56/59 recovery is always to be seen in the light of circumstances and the context. Recovery of bribe amount cannot be seen in vacuum. In the present case, the factum of recovery of bribe amount is established. The conversation between the accused and the complainant at the time of trap refers to payment of Rs. 15,000/- as a part payment. The admitted facts are that complainant and some other person had raised unauthorized construction which was only partly demolished and the threat of further demolition was looming large over the complainant and other occupants of the same premises. The complainant along with one of the occupant PW-7 Satpal Singh visit the house of the accused with the GC notes treated with phenolphthalein. The bribe amount wrapped in newspaper was left on TV Trolley in presence of accused in the house of the accused which was kept in the Almirah later on and recovered from there. These circumstances established beyond doubt that Rs. 15,000/- recovered from the house of the accused was the bribe amount which was demanded and accepted by the accused. The accused could not rebut the presumption under Sec. 20 of the Act as he did not offer any explanation of this amount being found in his house. His simple denial in his statement under Sec. 313 Cr.PC about the recovery of Rs. 15,000/- from the Almirah of his house cannot be accepted. If the plea of the accused that the amount was kept on the TV trolley without his knowledge when he had left the room for sometime as suggested to PW-7 during his cross-examination is accepted, than this amount would have been found on the TV trolley itself by the CBI team and not inside an Almirah in another room. If the amount was kept without the knowledge of the accused than the natural reaction which a prudent man would expect from the accused would be to say that the money packet was left by his visitors without his knowledge instead of faking silence CBI Vs N. S. Kain CC No. 19/2012 57/59 about the recovery of amount from the Almirah in the room. Though an accused has right to keep silence even when his statement under Sec. 313 Cr.PC is recorded but if he keeps silent about a fact which could only be in his knowledge then his silence would be a circumstance against him. Thus, the recovery of bribe amount from the possession of the accused which was accepted by him entitle the Court to draw the presumption under Sec. 20 of the Act which the accused could not rebut.
46. Therefore, in the light of evidence which has come on record, I have no hesitation to hold that the prosecution has proved the demand, acceptance and recovery of the bribe amount by the accused. The presumption under Sec. 20 of the Act which arise on proof of these elements is not rebutted by the accused.
47. In view of the above discussion, I have come to the conclusion that prosecution has proved beyond reasonable doubt the commission of offences under Sec. 7 & Sec. 13(1)(d) punishable under Sec. 13(2) of the PC Act by the accused. The accused is held guilty for the offences under Sec. 7 & Sec. 13(1)(d) of PC Act and convicted accordingly.
48. Before parting with the judgment, I intend to observe that menace of unauthorized construction cannot survive without the unholy alliance between law enforcing agencies and those who raise unauthorized construction. The house owner of properties No. 18/563, 18/567, 18/571 & 18/575, Block-18, Kalkaji, New Delhi have raised unauthorized construction. The photographs on the record Ex. P-5/D-1 to D-3 and mark DX show the enormity of the construction in total disregard of the Rules CBI Vs N. S. Kain CC No. 19/2012 58/59 and Regulations. If the accused is guilty of perpetuating the act of encroachment on Government land despite being responsible to curb such encroachment, the complainant Sanjeev Singh and other occupants of the house are not less responsible and liable for violation of building bylaws rules and regulations. Such act by builders with the active support of official in the MCD has led to mushrooming growth of concrete structure in the city. All the agencies responsible for controlling such haphazard growth need to rise to occasion and do their duties with diligence and a sense of commitment to the society. The complainant have raised unauthorized construction even after registration of the present case. The premises in dispute is in JJ Re-settlement colony which are now looked after by Delhi Urban Shelter Improvement Board, Government of NCT of Delhi. The Director of DUSIB, GNCTD need to take appropriate legal action against the premises in which the unauthorized constructions has been raised.
Dictated and announced (AJAY KUMAR KUHAR) in the open court on 26.09.2014 Special Judge, CBI(PC Act)-06 Tis Hazari Court, Delhi CBI Vs N. S. Kain CC No. 19/2012 59/59