Delhi District Court
State vs Si Amit Kumar on 24 December, 2024
IN THE COURT OF DEEPALI SHARMA
SPECIAL JUDGE: PC ACT: ACB-01:
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR No. DLCT11-001757-2019
CC No. 335/2019
FIR No. 05/2018
U/S: 7/13(1)(d) of Prevention of Corruption Act r/w Section
120B IPC.
PS: Vigilance
State
Versus
1) SI Amit Kumar,
S/o Sh. Shyam Dass,
R/o H.No. D-194, New Police Line,
Kingsway Camp, Delhi-110009.
Presently r/o H.No. 233-234, Pocket-H1,
Sector-11, Rohini,
New Delhi-110085.
2) Shekhar Kumar,
S/o Sh. Kameshwar Prasad Singh,
R/o H.No. 84, DDA Flats,
Jaidev Park, East Punjabi Bagh,
New Delhi-110026.
Date of Institution : 31.08.2019
Date of Arguments : 28.11.2024
Date of Judgment : 24.12.2024
Appearance :
For the State : Sh. Sukhbeer Singh, Ld.
Chief Public Prosecutor
For accused SI Amit : Sh. Sanjay Gupta, advocate,
Kumar Enrl. No. D-572/90.
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 1 of 94
For accused Shekhar : Sh. Sanjay Gupta, advocate,
Kumar Enrl. No. D-382/87.
JUDGMENT
1) Brief facts of the case are that on 23.05.2018, complainant Surender Singh came to PS Vigilance Branch and gave a handwritten complaint to Insp. Ajay Tyagi stating that the complainant was owner of vehicle no. HR46D-5396. His driver Jasvir had left from New Green Transport, Rampura, Delhi, after loading the vehicle for Madras in the night of 07.05.2018. Due to some reasons he had to unload half of the goods and he delivered the remaining goods at Madras, where, upon asking of Shekhar, owner of New Green Transport, his vehicle was stopped and till the date of complaint, the vehicle was there only. The complainant had delivered the remaining goods of Shekhar, which were unloaded on the way. Shekhar had filed a complaint at PS Punjabi Bagh against the complainant despite the fact that Shekhar had kept his vehicle with him and had not even paid the fare of the vehicle. On 16.05.2018 Shekhar took him to PS Punjabi Bagh where they met IO/SI Amit Kumar. SI Amit Kumar told him that he will put him behind bars for removing the goods on the way or to give Rs. 5 Lakhs to him. The complainant got scared and on 17.05.2018 i.e. the next day, Shekhar sent the complainant with one Ashok of Anshu Roadlines to the police station where IO/SI Amit Kumar took Rs. 2.5 Lakhs from him and asked him to get the remaining amount on the next day. On 18.05.2018 he gave Rs. 30,000/- to IO/SI CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 2 of 94 Amit Kumar. SI Amit Kumar told him that he had time till 21.05.2018 for the remaining amount of Rs. 2,20,000/- or otherwise he would file a case against him and put him behind bars and he would not even get his vehicle. Last evening the complainant called Shekhar and requested him to get the vehicle released at which Shekhar told him to get the remaining amount of Rs. 2,20,000/- to SI Amit Kumar at PS Punjabi Bagh as SI Amit Kumar had called him many times. The complainant stated that he was against bribery. On that day he had brought Rs. 50,000/- with him to take necessary action. The handwritten complaint Ex. PW6/A was signed by the complainant, the panch witness Ramesh Chandra Kesharwani and attested by Insp. Ajay Tyagi.
2) Pre-raid proceedings were conducted. The serial number of 25 currency notes of the denomination of Rs. 2000/- each were noted down in the presence of panch witness. Phenolphthalein powder was applied upon the currency notes, demonstration of the specialty of Phenolphthalein powder was given. The complainant kept the Phenolphthalein smeared notes in the right pocket of his wearing pant. During pre-raid proceedings, the panch witness was also asked to remain with the complainant and to hear the conversation regarding demand of bribe money and the complainant was asked to hand over the bribe money only upon demand. Meanwhile the complainant called SI Amit Kumar from his mobile no. 8168961034 on his mobile no. 9911456545 at which SI Amit Kumar told the complainant to go and meet Shekhar. After completion of pre-
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 3 of 94raid proceedings the raiding team proceeded for the spot and reached near PS Punjabi Bagh and the panch witness and the complainant left for the spot i.e. PS Punjabi Bagh and the raiding team remained near PS Punjabi Bagh. Thereafter complainant received a phone call of one Ashok c/o Anshu Roadlines, who asked the complainant where he was and that Shekhar had received many calls from Amit Kumar and why he had not reached and asked him to talk to Shekhar. Thereafter the complainant called Shekhar on his mobile phone, who asked the complainant to come to his office. Thereafter the raiding team went to the office of Shekhar, whose location was known to the complainant.
3) The raiding team reached the spot i.e. the office of Shekhar, New Green Transport Services, near Ashoka Park Metro Station, Phool Bagh, Rampura, New Delhi. The complainant and the panch witness went to the first floor of the building where office of Shekhar was situated and the raid was conducted and accused SI Amit Kumar was caught red-handed and was apprehended. Rs. 50,000/- were recovered from the right hand of accused SI Amit Kumar and seized by the police. The right hand-wash of accused SI Amit Kumar in Sodium Carbonate solution was taken which turned pink and the same was kept in two sealed bottles. The statement of panch witness was recorded. The Raiding Officer prepared the rukka and sent the same for registration of FIR and the FIR was registered u/s 7/8/13(1)(d) of Prevention of Corruption Act (hereinafter referred as the PC Act).
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 4 of 944) The investigation of the case was handed over to Insp. Dharamveer Singh Gautam, who reached at the spot and interrogated the accused. Accused persons were arrested, their personal search was conducted, the site plan of the locality and site plan of the spot of raid i.e. WZ-1, first floor, Phool Bagh, Rampura, Delhi, were prepared at the instance of the complainant, the disclosure statement of the accused persons were recorded and case property was deposited in the Malkhana. Thereafter search of the room of accused SI Amit at PS Punjabi Bagh was conducted but the recovery of bribe money could not be affected. During investigation, two mobile phones of the accused Amit Kumar and two mobile phones of accused Shekhar were seized. Statements of the witnesses were recorded u/s 161 Cr.P.C. On 24.05.2018, the statement of complainant was got recorded u/s 164 Cr.P.C. During investigation on 25.05.2018 the mobile phone of the complainant was seized. The exhibits were sent to FSL Rohini for evaluation and analysis. Voice sample of accused persons, the complainant and Ashok Kumar were taken at FSL Rohini. The documents including posting details of accused Amit Kumar, report regarding complaint of accused Shekhar, copy of case diary to prove the admitted handwriting of SI Amit Kumar were seized. The certified copies of CDRs of mobile phones of complainant, the accused persons and Ashok were obtained. After transfer of IO/Insp. D.V.Gautam, the investigation was assigned to Insp. Virender Mor. Specimen handwriting and signatures of accused persons and complainant were obtained and sent to FSL Rohini. The statements of CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 5 of 94 witnesses were recorded u/s 161 Cr.P.C. The FSL results were obtained from FSL, Rohini, and placed on record. The prosecution sanction u/s 19 of PC Act was obtained qua accused SI Amit Kumar.
5) After completion of investigation, charge-sheet was filed against the accused SI Amit Kumar and Shekhar Kumar u/s 7/8/13(i)(d) PC Act 1988 and cognizance of offence was taken against the accused persons on 13.09.2019. After hearing arguments, charge for the offence under Sections 120B IPC read with Section 7 & 13(1)(d) of P.C.Act was framed against both the accused persons. Accused SI Amit Kumar was also charged for the offence under section 7 PC Act r/w Section 120B IPC and for the offence under section 13(1)(d) of P.C.Act punishable under section 13(2) of P.C. Act, r/w Section 120B IPC. Both the accused persons pleaded not guilty and claimed trial.
6) In order to prove its case, prosecution has examined 29 witnesses. The brief summary of deposition of prosecution witnesses is as under:-
i) PW1 ASI Kharak Singh was the Duty Officer, who had recorded FIR in the present case and he proved copy of FIR Ex. PW1/B, his endorsement on the rukka Ex. PW1/C, DD No. 7A dated 23.05.2018 in respect of registration of the FIR as Ex.
PW1/A and copy of DD No.27B dt. 23.05.18 Ex.PW1/D. CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 6 of 94
ii) PW2 Ct. Mahender deposed that on 23.05.2018, he was on duty as computer operator on CCTNS and on the instructions of HC Jai Prakash, he typed the FIR of the present case on CCTNS system and thereafter took a printout, handed it over to DO alongwith rukka and in this regard he issued a certificate u/Sec. 65B of I.E.Act Ex.PW2/A.
iii) PW3 ASI Barmeshwar Goswami produced bio-data of accused SI Amit Kumar, s/o Sh. Shyam Dass, PIS No. 27010054 Ex.PW3/A and in this regard he issued certificate under Section 65B of I.E. Act Ex.PW3/B.
iv) PW-4 ASI Josheph K.J. deposed that on 01.06.2018, MHC(M) handed over to him right hand wash, which was sealed with the seal of AK, to deposit the same at FSL, Rohini vide RC no. 10/18, which he took to FSL, Rohini, however, there was some objection in the documents, therefore, right hand wash could not be deposited and he handed over the same to MHC(M).
v) PW5 SI Sagar Singh deposed that on 23.05.2018, he was posted as MSI(M), PS Vigilance, Barakhamba Road, and Insp. Dharambir Gautam deposited GC notes, hand wash, mobile phones of both accused and personal search articles of both the accused alongwith sample seal and copies of seizure memos. He made entry at serial no. 115 in register no. 19 Ex.PW5/A. He further deposed that on 25.05.2018, Insp. Dharambir Gautam CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 7 of 94 deposited mobile phone of Surender alongwith copy of seizure memo vide entry at serial no. 116 Ex.PW5/B (OSR). He further deposed that on 01.06.2018, he handed over the right hand wash of accused SI Amit Kumar alongwith sample seal and documents to ASI Joseph, vide RC No.10/21/18 dated 01.06.2018 Ex. PW5/C in order to deposit at FSL, Rohini, however, the exhibits could not be deposited in FSL due to some objections in the documents and as such ASI Joseph deposited the same in Malkhana. On 04.06.2018, he handed over to Ct. Sandeep the exhibits i.e. right hand wash-I of SI Amit Kumar sealed with the seal of AK alongwith documents and sample seal, vide RC No.11/21/2018 dated 04.06.2018 Ex. PW5/D in order to deposit at FSL, Rohini. Ct. Sandeep went to FSL, Rohini and deposited the exhibits and handed over the acknowledgement receipt of FSL Ex.PW5/E. PW5 further deposed that on 14.06.2018, Insp. Dharambir Gautam deposited voice sample of one Ashok Kumar and voice sample of complainant Surender Singh in the malkhana vide entry at serial no. 117 Ex.PW5/F. On 15.06.2018, Insp. Dharambir Gautam deposited sample voices of both the accused persons vide entry at serial no. 118 Ex.PW5/G. On 24.04.2019, HC Rakesh Kumar collected sealed FSL result and exhibits from FSL, Rohini and deposited in Malkhana and he made entry in register no. 19. PW5 further deposed that on 26.04.2019, HC Rakesh Kumar collected FSL result and exhibits from FSL, Rohini and deposited the same with him and he made entry in register no. 19.
In his cross-examination by ld. Counsel for accused CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 8 of 94 Amit Kumar, PW5 deposed that he did not make any entry in register no. 19 regarding sending of case property through ASI Joseph K.J. to FSL on 01.06.2018 and redeposit of case property by him due to objection raised by FSL. He further deposed that the case property is sent through Road Certificate and only after acknowledgment from FSL, an entry qua handing over of case property to the concerned police official is made in Register no.
19. PW5 stated that he did not know what objections were raised by FSL officials on 01.06.2018. He denied that no exhibits were sent to FSL on 01.06.2018 through ASI Joseph K.J.
vi) PW6 Ramesh Chandra Kesharwani was the panch witness, who deposed on 30.11.2021 that he did not remember the date and month but it was around two years back, when he reached the Vigilance office at 10:00 am, where he met the complainant Sh. Surender through one SI, who briefed him about his grievance and his complaint. Complainant told him about the demand of money from him and he further told PW6 that he had on one or two previous occasions paid money as per the demand. On that day also the complainant had brought an amount of Rs.50,000/- for paying to SI Amit Kumar. The complainant handed over that amount to one SI who had applied some chemical on the said currency notes. The currency notes were then handed over to the complainant for giving the same to the accused. Nothing else was done prior to that. Thereafter his examination-in-chief was deferred at the request of Ld. Addl.P.P. for the State.
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 9 of 94On 09.05.2022 PW6 further deposed that he had visited the office of Vigilance on 23.05.2018 and complainant Surender Singh had given a written complaint Ex. PW6/A at the office of Vigilance, on which he identified his signatures. The complaint was in writing regarding demand of bribe by SI Amit Kumar of PS Punjabi Bagh. PW6 went through the complaint and also made enquiries from the complainant. The complainant had brought Rs.50,000/- with him. Thereafter, Insp. Ajay Kumar had asked PW6 to sign the complaint of Surender. Insp. Ajay Kumar also noted down the serial numbers of the GC notes in his pre-raid report. PW6 further deposed that he also checked the numbers of the GC notes. Insp. Ajay Kumar applied chemical powder on the GC notes and directed him to touch the said powder smeared GC notes with his right hand. His right hand wash was taken in Sodium Carbonate solution and the colourless solution turned pink. Insp. Ajay Kumar had also explained the importance of the powder which was applied on the GC notes. The GC notes were 25 notes of Rs.2,000/- denomination each. The aforesaid powder smeared GC notes were handed over to Surender, who kept the same in the right pocket of his pant. The complainant was directed by Insp. Ajay Kumar that he should keep PW6 with him so that he could see the transaction and overhear the conversation between the complainant and the accused. The complainant was further directed to hand over the money to the accused only after his specific demand and not otherwise. After giving the demonstration, the pink solution was thrown and the glass jar was washed. The remaining chemical powder was handed over to Duty Officer. PW6, complainant CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 10 of 94 Surender and Insp. Ajay Kumar washed their hands. Thereafter, complainant Surender Singh called SI Amit telephonically and SI Amit asked complainant to talk to Shekhar. Thereafter, Insp. Ajay Kumar constituted a raiding team comprising of five persons alongwith complainant and him (PW6) and they all departed for PS Punjabi Bagh. When they reached at the gate of PS Punjabi Bagh, complainant Surender received a call from one Ashok, who directed complainant to call Shekhar as SI Amit had made several calls. Complainant then contacted Shekhar telephonically and the complainant was directed by Shekhar to come to his office. Thereafter, raiding team left for the office of Shekhar at Rampura. PW6 and Surender reached at his office alongwith the raiding party. PW6 alongwith Surender went to the first floor to the office of Shekhar. Surender made call to Shekhar and he asked Surender to wait for five minutes as he was coming. After about 5 minutes Shekhar came there. Shekhar made call to SI Amit Kumar from there. After talking to SI Amit, Shekhar informed the complainant that SI Amit would come in 10-15 minutes in the office. After 15 minutes, SI Amit Kumar came there. PW6 correctly identified accused Amit Kumar and Shekhar before the court. PW6 deposed that SI Amit Kumar wrote a compromise-type statement in his handwriting. When PW6 was shown the compromise document, he showed ignorance about the said document/compromise. PW6 deposed that thereafter, Shekhar told Surender "jo laaye ho inko de do". Thereafter, complainant gave the powder smeared GC notes to accused Amit. Accused Amit kept those notes in his right hand and thereafter, PW6 came down to 2-3 steps and made pre-
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 11 of 94appointed signal to the raiding party. The raiding party and the RO came upstairs to the office of Shekhar. RO gave introduction of the raiding party to SI Amit and offered his search as well as search of the raiding party to him prior to the search of SI Amit. Accused Amit refused to take the search of the raiding party. RO/Insp. Ajay Kumar then recovered the tainted GC notes from the right hand of the accused. The GC notes were seized and sealed with the seal of 'AK' after keeping in an envelope vide seizure memo Ex.PW6/B. Thereafter, right hand wash of the accused was taken by RO in a colourless solution of Sodium Carbonate which turned pink. The said pink colour solution was transferred by RO in two glass bottles. PW6 and the complainant had signed on the paper slips pasted on bottles of the said solution. Both the bottles were sealed and seized by the RO vide seizure memo Ex.PW6/C. The sealed bottles were marked as RHW-I and RHW-II. The sealed bottles were kept in two separate envelopes and the envelopes were sealed with the seal of 'AK'. Seal after use was handed over to him by the RO. RO also enquired from him and the complainant Surender regarding the facts. Thereafter, RO prepared a report and handed over the same to one of the raiding team member and sent him to PS Barakhamba. After that one police official came there at the spot and he also made enquiries from him and the complainant. PW6 also made enquiries from accused Amit and accused Shekhar. Two phones which were in the possession of accused Amit and two phones which were in the possession of accused Shekhar were seized by IO vide seizure memos Ex.PW14/D and Ex. PW14/E CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 12 of 94 respectively. PW6 deposed that as there was no light and also several public persons were there at the spot, they all returned back to the PS Barakhamba alongwith the accused persons. There at the PS, the IO prepared a report and obtained his signatures as well as of the complainant on the said report. PW6 identified his signatures on arrest memo of accused Amit Kumar Ex. PW14/F, arrest memo of Shekhar Ex. PW14/G and personal search memo of accused Amit Kumar Ex. PW14/H and personal search memo of Shekhar Ex. PW14/I. PW6 also correctly identified 25 currency notes of denomination of Rs.2,000/- each contained in an envelop Ex.PW14/Article-1 (colly), serial number of which were compared with the serial numbers mentioned in the pre-raid report and also with the seizure memo. He also correctly identified one sealed glass bottle RHW-I Ex.P-1, another sealed glass bottle RHW-II Ex.P-11 and two mobile phones of make 'Samsung' seized from accused Shekhar Kumar @ Shekhar Singh Ex.P-12 and Ex.P-13. PW6 further stated that he could also identify the mobile phones which were recovered from accused Amit Kumar. The said mobiles phones were already released to the accused Amit Kumar and as such identity of the mobile phones was not disputed by Ld. Defence counsel.
With the permission of the court, Ld. Addl. PP for the State cross-examined PW6. PW6 affirmed that his statement recorded U/s 161 Cr.P.C. Mark-X1 was recorded by the police after the raid. PW6 affirmed that after the demonstration and instructions given by the RO, he was directed by the RO to give signal to the raiding party by waving his right hand two times CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 13 of 94 over his head after the bribe has been accepted by the accused. PW6 also affirmed that after the demonstration given by the RO, the complainant had telephonically contacted accused Amit from his mobile no. 8168961034 to the mobile number of accused 9911456545. PW6 also affirmed that they all left the PS Vigilance for the raid in a government vehicle having registration no. DL-1CJ-5549. PW6 affirmed that SI Amit Kumar had demanded bribe of Rs.50,000/- from the complainant and accepted the same from the complainant and that SI Amit had asked the complainant regarding the remaining bribe which was to be given by the complainant and the complainant had replied that the same would be given within 2-4 days. PW6 also affirmed that after the accused Amit had accepted the bribe, he had given pre-determined signal to the raiding party and that the bottles in which the hand-wash of accused Amit was transferred were marked as RHW-I and RHW-II. PW6 also affirmed that the IO had prepared site plan at the instance of the complainant at the spot and that both the accused were interrogated and arrested in the present case and their disclosure statements were also recorded. PW6 identified his signatures on the disclosure statement of accused Amit Ex.PW6/D. PW6 deposed that he could not recollect the complete facts due to lapse of time.
vii) PW7 Insp. C.L. Meena, deposed that on 24.05.2018, he was posted at PS Punjabi Bagh as Inspector Investigation and on that day, Insp. Dharamvir Gautam alongwith accused SI Amit visited at PS Punjabi Bagh at about 09:15 PM and conducted the CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 14 of 94 search of room allotted to the accused SI Amit, who was posted at PS Punjabi Bagh on that day. IO prepared memo Ex. PW7/A in this regard. PW7 correctly identified accused Amit before the court.
viii) PW8 Ct. Ankush deposed that on 25.05.18, he was posted as constable in Vigilance Branch. On that day, complainant Surender came at the office of Vigilance and handed over his mobile, make of which he did not remember. PW8 also did not remember how many SIMs were there in the said phone. The phone was seized vide seizure memo Ex.PW8/A. PW8 further deposed that the mobile phone was containing conversation between complainant Surender and accused SI Amit.
PW8 further deposed that apart from conversation between SI Amit and complainant Surender, the mobile was also having conversation of Shekhar, between the period from 21.05.2018 to 23.05.2018. IO prepared the CD and copied the audio files regarding conversation in the CD and same was taken into possession by the IO through memo Ex.PW8/A. PW8 further deposed that on 14.06.2018, he alongwith IO and ASI Kailash Chand went to FSL, Rohini, where the voice sample of Surender Singh and Ashok Kumar were recorded in cassette. The two cassettes containing the voice sample were sealed and seized vide seizure memo. The original voice sample of Surender Singh was given Mark-O and the copy prepared was given Mark-C. The cassettes were kept in a CD CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 15 of 94 mailer envelope and same was seized through seizure memo Ex.PW8/B. Original voice sample of Ashok Kumar was given Mark-O and copy was given Mark-C. The original voice sample was kept in a CD mailer and the same was given Mark-O-II and copy of the same was given Mark-C-II. Voice sample of Ashok Kumar was seized vide seizure memo Ex.PW8/C. PW8 further deposed that on 15.06.2018, he alongwith IO and ASI Kailash Chand went to FSL Rohini, Delhi, where voice sample of accused SI Amit Kumar and Shekhar were collected. The original voice sample was given Mark-O and copy of sample was given Mark-C. All four cassettes were kept in plastic cover and the same were kept in CD mailers and sealed with the seal of DBG. CD mailer of Shekhar Kumar containing original voice sample cassette was given the Mark-O-III and copy of voice sample cassette was given Mark-C-III. Original voice sample cassette of Amit Kumar, CD mailer was given the Mark-O-IV and copy of voice sample was given the Mark-C-IV. Voice sample of accused Amit Kumar and Shekhar were seized vide seizure memo Ex.PW8/D. PW8 correctly identified accused Amit Kumar and Shekhar before the court. PW8 further deposed that all the cassettes and CD mailers were signed by him and Kailash Chand, IO.
PW8 correctly identified cassettes having having marking as C Ex.P1, CD mailer having marking as C-I Ex.P2, CD Mailer having marking as C-II Ex. P-4 and one audio cassette having having marking of C Ex.P3, CD Mailer having marking as C-III Ex. P-6 and one audio cassette having marking CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 16 of 94 of C Ex. P-5, CD Mailer having marking as C-IV Ex. P-8 and one audio cassette having marking of C Ex. P-7, one mobile phone make 'Gionee' with two SIM cards Ex. P-9.
ix) PW-9 Surender Kumar, Nodal Officer, Bharti Airtel Ltd. deposed that he provided the attested copy of CAF of mobile number 9911456545 Ex. PW9/A, which was allotted to Amit Kumar, s/o Shyam Das and the CDR of aforesaid number from 16.05.18 to 24.05.18 Ex.PW9/B. PW9 further deposed that he also provided the attested copy of CAF of mobile number 9910806520 Ex. PW9/C, which was allotted to Sh. Shekhar Kumar s/o Sh. Kameshwar Prasad Singh; CDR of said number from 16.05.18 to 24.05.18 Ex.PW9/D; location chart Ex.PW9/E and the certificate under Sec. 65B Indian Evidence Act Ex.PW9/F.
x) PW10 Shailendra Yadav, Sr. Scientific Officer (Chemistry), FSL Rohini, Delhi, deposed that on 04.06.2018, the exhibit i.e. one sealed glass bottle bearing seal of AK was received by him for examination. The parcel RHW-I stated to be light pink coloured solution described as right hand wash in the sealed bottle. On chemical and TLC examination, exhibits RHW- I was found to contain Sodium Carbonate and Phenolphthalein and he gave his report Ex.PW10/A. PW10 correctly identified the glass bottle Ex.P1.
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 17 of 94xi) PW11 Pawan Singh, Nodal officer, Vodafone Idea Ltd., deposed that on 16.04.2019, he had provided EKYC of mobile no. 9311006520, which was registered in the name of Shekher Kumar, EX. PW11/A; its Call detail records (CDR) Ex. PW11/B; EKYC of mobile no. 9813878402, which was registered in the name of Surender, Ex. PW11/C; its Call detail records (CDR) Ex. PW11/D and certificate under Section 65(B), Indian Evidence Act Ex. PW11/E, to the Addl. DCP with his forwarding letter dated 16.04.2019 Ex. PW11/F. PW11 further deposed that the mobile no. 9311005650 was inadvertently mentioned in letter Ex. PW11/F, which may be read as 9311006520. The mobile no. 9311005650 was inadvertently mentioned in letter Ex. PW11/E which may be read as 9311006520. PW11 produced a fresh certificate under Section 65(B), Indian Evidence Act regarding mobile numbers 9813878402 and 9311006520 Ex. PW11/G.
xii) PW-12 Insp. Rajeev Bhardwaj deposed that on 16.05.2018, he was posted as SHO, PS Punjabi Bagh and on that day, one Shekhar came to the PS stating that his goods were pilfered from a truck, between Okhla to Chennai. PW2 further deposed that since the jurisdiction of the offence was not related to PS Punjabi Bagh, he directed Shekhar to approach the concerned PS i.e. Okhla. Later on, after arrest of accused SI Amit, who was posted at PS Punjabi Bagh at the relevant time, he learnt that he alongwith accused Shekhar had acted unofficially by going to Bahadurgarh to recover the goods. He CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 18 of 94 correctly identified accused Amit before the court.
xiii) PW-13 ASI Satpal Dagar, deposed that on 01.06.2018, he was posted at PS Punjabi Bagh as ASI and he was performing the duty of Reader to SHO, PS Punjabi Bagh. He received a notice u/s 91 Cr.P.C. and in pursuance thereof, he had provided original copy of the Inner Case Diary of case FIR No.125/18, U/s 392/34 IPC, PS Punjabi Bagh dated 12.03.2018 which was being investigated by SI Amit Kumar; photocopy of order no. 3625-40 dated 15.02.2018 regarding transfer of SI Amit Kumar from 1st Battalion to PS Punjabi Bagh and report regarding no-complaint of Shekhar between the period 16.05.2018 to 23.05.2018 being lodged in the complaint register at PS Punjabi Bagh which were seized vide seizure memo Ex.PW13/A. He also handed over the original case diary Ex. PW13/B was in the handwriting of SI Amit Kumar. His report was Ex.PW13/C and copy of the office order is Ex.PW13/D. PW13 correctly identified accused Amit Kumar before the court.
xiv) PW14 Surender - the complainant. xv) PW15 Ct. Sandeep deposed that on 04.06.2018, on
the instructions of the IO, he collected sealed exhibit RHW-I i.e. one sealed bottle bearing the seal of AK alongwith sample seal of AK and forwarding letter from the MHC(M), PS Vigilance and deposited the same at FSL, Rohini, vide RC no. 11/18. After CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 19 of 94 depositing the same, he collected the acknowledgment of acceptance, which he handed over to MHC(M).
xvi) PW16 Ashok Kumar - public witness, who was an acquaintance of complainant Surender and accused Shekhar. PW16 deposed that he was running transport business in the name and style of Anshu Roadlines situated at Kakrola. On 07.05.2018, he received call from accused Shekhar and he had asked to arrange a transport vehicle for Chennai. PW16 called Surender, the owner of vehicle canter and asked him to provide canter to transport goods to Chennai. Surender sent the Canter alongwith the driver to the office of accused Shekhar. The goods were loaded in the canter and it left for Chennai. After about one week, PW16 received call from accused Shekhar, who stated that only half of the goods had reached to the party at Chennai. PW16 again called Surender and he stated that "gaadi mein overload ho gaya tha, isliye kuch maal utaar diya ". PW16 conveyed the message to accused Shekhar and also stated that the goods which were unloaded were at Bahadurgarh. Accused Shekhar alongwith his staff went to the address given by Surender at Bahadurgarh and collected the un-dispatched goods. Accused Shekhar conveyed to PW16 that Rs.One Lakh was to be given to the party at Chennai whose entire goods were not transported on account of delay. Accused Shekhar talked to Surender but Surender refused to give Rs. One Lakh. Accused Shekhar told to PW16 that Surender should meet him at his office. Surender visited the office of accused Shekhar at Punjabi CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 20 of 94 Bagh. Accused Shekhar had already lodged FIR against Surender at PS Punjabi Bagh. Surender and accused Shekhar visited PS Punjabi Bagh and a settlement was arrived at between them for Rs.80,000/- to be paid by Surender to accused Shekhar. Surender had asked for time of 4-5 days to pay the amount. Later on after one week, PW16 came to know that Surender had laid a raid against police official of PS Punjabi Bagh. PW16 stated that he was not aware who was the said police official.
PW16 further deposed that on 30.05.2018, he received a call from office of Vigilance. His voice sample was taken at the office of Vigilance. After that he had not received any call from Vigilance or any other department. PW16 correctly identified accused Shekhar before the court.
PW16 identified the CD mailer having original voice sample cassette of PW16 and the cassette alongwith the cover and CD mailer are Ex.P-10.
PW16 also identified his signatures on the seizure memo of two cassettes of the sample voice of PW16 Ex.PW8/C. On being cross-examined by Ld. Addl. PP for the State, PW16 stated that police had never recorded his statement. PW16 denied having made statement dated 30.05.2018 Mark-Z to the police. PW16 denied that the driver of the canter of Surender telephonically informed him that the canter had met with an accident and some of the goods had been broken. PW16 further denied that Shekhar knew that Surender had misappropriated the goods or that Shekhar had apprised the aforesaid facts at PS Punjabi Bagh or that Shekhar had talked to CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 21 of 94 SI Amit Kumar at PS Punjabi Bagh. PW16 further denied that he, driver Jasbir and Surender were interrogated at the PS by SI Amit on 16.05.2018 and that Shekhar had not given any complaint at PS Punjabi Bagh as the matter did not pertain to the jurisdiction of PS Punjabi Bagh. PW16 further denied that in the evening of 16.05.2018, SI Amit alongwith Shekhar, Surender, driver Jasbir alongwith other persons at the instance of Surender reached at Bahadurgarh in two private vehicles or that one truck which was parked in front of a hotel loaded with liquor was recovered at the instance of Surender or that Ct. Bhagirath also accompanied SI Amit Kumar to Bahadurgarh. PW16 further denied that the truck no. HR-55Q-6228 alongwith loaded liquor was brought at the office of Shekhar alongwith them or that SI Amit Kumar had demanded Rs.Four Lakh from Surender for not initiating legal proceedings against him or that SI Amit Kumar demanded additional amount of Rs.One Lakh from Surender for releasing the aforesaid truck. PW16 further denied that on 17.05.2018, he accompanied Surender to PS Punjabi Bagh where SI Amit met them or that SI Amit closed his room or that Surender handed over Rs.Two Lakh (100 GC notes in the denomination of Rs.2,000/- each) to SI Amit after taking out from his pocket or that at the time of giving of GC notes to SI Amit, he (PW16) was sitting beside Surender. PW16 further denied that he visited PS Punjabi Bagh again alongwith Shekhar and Surender and had given Rs.50,000/- to SI Amit. PW16 further denied that on 23.05.2018, he was in Rajasthan and at about 11:00 am, he received a call from Shekhar who was asking regarding the whereabouts of Surender as Surender has to pay CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 22 of 94 Rs.2,20,000/- to SI Amit on that day or that Shekhar also stated that SI Amit was asking the whereabouts of Surender as Surender has to pay the remaining amount of Rs.2,20,000/- to him. PW16 further denied that Surender reached PS Punjabi Bagh on that day alongwith remaining amount of bribe but Shekhar called him at his office or that Surender reached the office of Shekhar alongwith the bribe amount or that there was a collusion between Shekhar and SI Amit to take the money from Surender or that Shekhar had not given any written complaint at PS Punjabi Bagh or that SI Amit alongwith Ct. Bhagirath had recovered the truck loaded with 360-380 cartons of expensive liquor from Bahadurgarh or that Shekhar in connivance with SI Amit had got paid Rs.2,80,000/- to SI Amit from Surender or that they were demanding remaining amount of Rs.2,20,000/- from Surender. PW16 further denied that Shekhar wanted to take revenge from Surender or that Shekhar wanted to give reward to SI Amit for the recovery of expensive liquor from or that due to the said reason, he was working as mediator of SI Amit.
PW16 also denied having made statement dated 14.06.2018 Mark-Z1 to the police. PW16 denied that on 14.06.2016, he accompanied the IO of the present case to FSL, Rohini where his sample voice was taken in audio cassette by the FSL officials or that the original recording of his voice sample was marked as "O" and the recording of the same was marked as "C". However, PW16 again stated that he had visited the FSL, Rohini alongwith the IO where his sample voice was taken and the original cassette was marked as "O" and the recording of the same was marked as "C". PW16 further stated that he had signed CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 23 of 94 the audio cassette when there was no audio tape (reel) in the audio cassette, however, he again stated that there was audio tape (reel) inside the audio cassette when he had signed on the audio cassette after his voice sample was taken at FSL, Rohini. PW16 affirmed that the audio cassettes were kept in CD mailer and were sealed with the seal of DBG and taken into police possession vide seizure memo Ex.PW8/C on which he had signed and that e had signed the CD mailer after it was sealed by the IO.
During recording of testimony of PW16, his attention was drawn towards accused Amit Kumar but he stated that he was not aware who was SI Amit and he count not identify the accused.
PW16 denied that he was introducing fresh facts in order to save the accused persons from legal punishment or that he was won over by the accused Amit and that is why he was intentionally and deliberately not identifying accused Amit in the court and deposing falsely on oath.
xvii) PW17 ASI Leela Arya deposed that on 02.07.2018 in her presence in the office of Vigilance, IO Insp. Dharambir Gautam had taken specimen handwriting and signature of Surender. She further deposed that on 10.07.2018, IO Insp. Dharambir Gautam had taken specimen handwriting and signature of Shekhar in her presence.
xviii) PW18 HC Bhagirath deposed that on 16.05.2018, he CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 24 of 94 was on beat patrolling in the area of PS Punjabi Bagh. In the evening, he received call of accused SI Amit Kumar, who was also posted at PS Punjabi Bagh, and apprised him that he was having a complaint and he (PW18) had to accompany him. After some time, accused SI Amit Kumar again telephonically contacted him and told him to come immediately. PW18 reached at PS Punjabi Bagh and met with accused SI Amit Kumar, who was standing with 5-6 other persons and two vehicles were also there, out of which one vehicle was Maruti Swift and the other vehicle was a Taxi number car. PW18 alongwith accused SI Amit Kumar and the other persons left PS Punjabi Bagh in both the vehicles and reached at some place near Bahadurgarh. They stopped outside a restaurant where one truck bearing no. HR- 55Q-6228 was stationed. The truck was covered with Tirpaal. Talks were going on between the public persons and accused SI Amit Kumar and PW18 came to conclusion that there was a quarrel between two transporters and that boxes of liquor were lying in the said truck. After that they all left the said place and the truck proceeded for Delhi. PW18 was dropped at PS Punjabi Bagh. PW18 was not told about the facts of the complaint by accused SI Amit Kumar. Later on his statement was recorded on 01.06.2018 at PS Vigilance.
On being cross-examined by ld. Addl. PP for the State, PW18 affirmed that it was revealed to him at Bahadurgarh that the goods loaded in the truck were of Shekhar, who got it sent to Chennai and it was detained by one Surender due to some old dispute between them.
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 25 of 94xix) PW-19 SI Kailash deposed that on 14.06.2018, he had accompanied the IO alongwith Ct. Ankush to FSL, Rohini, where voice samples of Surender Singh and Ashok Kumar were recorded in audio cassettes. The cassette containing the voice sample of Surender Singh was marked as 'O' and the copy prepared was marked as 'C'. The cassettes were kept in CD mailer envelope and were seized through seizure memo already Ex.PW8/B. The original voice sample of Ashok Kumar was given mark 'O' and the copy of the voice sample of Ashok Kumar was marked as 'C'. The cassette containing original voice sample was kept in CD mailer envelope and marked as 'O- II' and the copy of the same was marked as "C-II'. Voice sample of Ashok Kumar was seized vide memo Ex.PW8/C. PW19 further deposed that on 15.06.2018, he alongwith the IO and Ct. Ankush again went to FSL, Rohini, where voice samples of accused SI Amit and accused Shekhar were taken in audio cassettes. The original voice sample was given mark 'O' and the copy of the sample voice was marked as 'C'. All four cassettes were kept in CD mailer and were sealed with the seal of DBG. CD mailer containing original voice sample of Shekhar was marked as 'O-III' and the CD mailer containing the copy of the voice sample of Shekhar was marked as 'C-IV'. All the sealed exhibits were seized vide memo Ex.PW8/D. PW19 correctly identified CD Mailer having marking C-I Ex. P2, one audio cassette having marking C Ex.P1, CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 26 of 94 CD Mailer having marking C-II Ex. P4, one audio cassette having marking C Ex.P3, CD Mailer having marking as C-III Ex. P6, one audio cassette having marking of C Ex.P5, CD Mailer having marking as C-IV Ex. P8 and one audio cassette having marking of C Ex.P7.
PW19 also correctly identified accused Amit Kumar and Shekhar before the court.
xx) PW20 Vijender Singh, Assistant Director (Documents), FSL, Rohini, Delhi, deposed that on 20.12.2018, vide memo no. 756/RC-26/21/2018/VIU/Vig, Delhi Police dated 20.12.2018 in FIR No. 5/2018 of PS Vigilance, Delhi, questioned and standard writings were received for examination and opinion. The exhibits were consisting of questioned writings/signature marked Q-1 to Q-4 and standard writing/figures/ signatures marked S-1 to S7, A1 & A2 of Sh. Amit Kumar, S8 & S9 of Sh. Surender Singh and S10 & S11 of Sh. Shekhar Singh.
All the documents were carefully and thoroughly examined with available scientific instruments using various lighting conditions and magnifications and he gave his report Ex. PW20/A wherein he opined that :-
(i) the person who wrote the red enclosed writing/signature stamped and marked S1 to S7, A1 & A2 also wrote the red enclosed writing/signature similarly stamped and marked Q1 & Q2.
(ii) the person who wrote the red enclosed writing/signature stamped and marked S8 and S9 also wrote the red enclosed writing/signature similarly stamped and marked Q3.CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 27 of 94
(iii) the person who wrote the red enclosed writing/signature stamped and marked S10 and S11 also wrote the red enclosed writing/signature similarly stamped and marked Q4.
PW20 further deposed that the documents which were examined by him were Ex.PW13/B, Ex.PW14/B (colly), Ex.PW14/K and Ex.PW14/L. All the documents bear the stamp impression of Documents Division, FSL, GNCT of Delhi and also bear the FSL No. 2018/D-11787 at point Y. xxi) PW21 ASI Tara Chand deposed that on 20.12.18, on the instructions of IO, he had collected the documents vide RC no. 26/21/18 from him and deposited the same in FSL Rohini and handed over the acknowledgement of acceptance to the IO.
xxii) PW22 Dr. Bharti Bhardwaj, Senior Scientific Officer (Physics), FSL, Rohini, Delhi, deposed that on 13.03.2019, five sealed parcels alongwith forwarding letter through Computer Forensic Unit were marked to her for examination. After detailed examination, she prepared her report Ex.PW22/A. The case exhibits were resealed with the seal of Dr. B.B. FSL DELHI and sent back to the forwarding authority. PW22 correctly identified the CD marked as "CD1"alongwith it cover Ex.PW22/Article-1; a CD mailer having one audio cassette Maxell alongwith its cover Ex.PW22/Article-2; an envelop marked as O-II on which original voice sample cassette of Ashok Kumar was written containing one CD mailer having one audio cassette Maxell alongwith its cover Ex.P-10; an envelop marked CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 28 of 94 as O-III on which original voice sample cassette of accused Shekhar Kumar @ Shekhar Singh was written containing one CD mailer having one audio cassette Maxell alongwith its cover Ex.PW22/Article-3 and an envelop marked as O-IV on which original voice sample cassette of accused Amit Kumar was written containing one CD mailer having one audio cassette Maxell alongwith its cover Ex.PW22/Article-4.
xxiii) PW23 Dr. Virender Singh, Assistant Director, FSL, Rohini, Delhi, deposed on 26.06.2018, three sealed parcels were received at FSL, Rohini, which were assigned to him alongwith forwarding letter for extraction of data. First sealed parcel was found containing one Gionee mobile phone alongwith two SIM cards; second second sealed parcel was found containing two Samsung mobile phones i.e. Model no. SM-B313E/D alongwith two SIM cards and the other Model No. SM-G610F/DD containing two SIM cards; third sealed parcel was found containing one Apple mobile phone having one SIM phone and one VIVO mobile phone having one memory card make Toshiba 8 GB capacity. The data was extracted from exhibit MP3 i.e. Samsung mobile phone having 2 SIM cards (Jio and Airtel) and was provided in a CD marked as CD-1 (Ex. PW22/Article-1) by him and he prepared report Ex.PW23/A. He had also issued certificate U/s 65B of Indian Evidence Act Ex. PW23/B regarding the genuineness of the data retrieved by him. The CD- 1 containing the retrieved data was sealed with the seal of DOC FSL DELHI and was sent to Physics Division, FSL, Rohini for further examination. Other exhibits were also sealed and handed CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 29 of 94 over to the forwarding authority. PW23 identified his initials on the aforesaid which alongwith its cover was Ex.PW22/Article-1. PW23 also correctly identified two mobile phones of make Samsung Ex.P12 and Ex.P13 as the ones which were examined by him and one smart phone make GIONEE Ex.P-9.
xxiv) PW-24 ACP Ajay Kumar deposed that on 23.05.2018, he was posted as Inspector, Vigilance and at about 11:00 am, he was called by ACP, Vigilance, who introduced to him complainant namely Surender Singh, who was present in his office. He was directed by the ACP to look into the grievances of the complainant. Accordingly, he took complainant Surender Singh to his office. PW24 also called panch witness namely Ramesh Kesharwani in his office. The complainant wrote a complaint Ex. PW6/A in Hindi and signed the same. The panch witness Ramesh Chandra Kesharwani also went through the complaint and signed the same and he also attested the same. PW24 further deposed that the complainant had brought with him Rs.50,000/- which were to be given as bribe to the bribe seeker. The GC notes were 25 notes of Rs.2,000/- denomination each. PW24 procured bottle of Phenolphthalein powder from DO of PS Vigilance and applied the same on the aforesaid GC notes which were handed over to him by the complainant. The panch witness was asked by PW24 to touch the powder smeared notes with his right hand and his right handwash was taken in colourless solution of Sodium Carbonate solution which turned pink. PW24 explained the specialty of Phenolphthalein powder to complainant and panch witness. The pink solution was thrown CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 30 of 94 away and the vessels were cleaned with the help of soap and water. The complainant was briefed that he would keep only the powder smeared notes with him and nothing else. The powder smeared notes were handed over to the complainant, who put the same in right pocket of his wearing pant. PW24 directed the complainant to stay with the panch witness and he also directed the panch witness to remain present with the complainant. The panch witness was further directed that he should listen and see the transaction which would happen between the complainant and the bribe seeker. A raiding team was constituted comprising of HC Rakesh, HC Tarachand, HC Kanwar Singh. PW24 collected his laptop and his official printer. PW24 also collected the investigation kit from PS Vigilance. They left the office of Vigilance at around 12:45 pm in a government vehicle alongwith the raiding team, complainant, panch witness and the driver for PS Punjabi Bagh. Before leaving PS Vigilance, the complainant called SI Amit of PS Punjabi Bagh from his mobile phone and SI Amit asked the complainant to reach at the office of Shekhar. They reached at PS Punjabi Bagh. The raiding team took position in a scattered manner outside the PS Punjabi Bagh. The complainant and the panch witness proceeded towards PS Punjabi Bagh. After some time, complainant came back and told him that one Ashok of Anshu Roadlines has called him and had asked him about the whereabouts of the complainant. The complainant further apprised him that Ashok had directed the complainant to talk to Shekhar and accordingly, the complainant talked to Shekhar, who asked the complainant to visit his office which was situated at Phool Bagh, Rampura. The raiding team CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 31 of 94 alongwith panch witness and complainant left for Rampura.
PW24 further deposed that after reaching Rampura, the complainant pointed out towards the transport office of Shekhar at the ground floor and also pointed out towards the office of Shekhar which was situated at the first floor of one building there, from inside the official vehicle. The official vehicle was parked at some distance ahead of the said office. They alighted the official vehicle. The raiding team was directed by PW24 to take position in a scattered manner. PW24 again briefed the complainant and the panch witness and directed the complainant to hand over the bribe to the bribe seeker on demand. After that the complainant and panch witness proceeded towards the first floor of the building where the office of accused Shekhar was situated. At about 04:20 pm, the panch witness came down some stairs and gave pre-determined signal to the raiding party. PW24 called the team and they all proceeded towards the first floor of the building. PW24 further deposed that inside the office, two persons were present one of the them was SI Amit and the other was Shekhar. PW24 blocked the way of the office with the help of raiding team members. PW24 introduced himself to SI Amit and also offered his search and the search of the raiding team members prior to his search. The panch witness apprised PW24 that SI Amit had accepted bribe from the complainant after demanding the same from the complainant. PW24 directed the panch witness to take the search of SI Amit. The bribe amount was recovered from the right hand of SI Amit. The serial numbers of the GC notes were tallied with the serial numbers mentioned in the pre-raid report CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 32 of 94 Ex. PW14/C which were found to be correct. The recovered notes were kept in a brown colour envelope and were sealed by the seal of AK and seizure memo Ex.PW6/B. PW24 took the right hand wash of the accused SI Amit Kumar in the colourless solution of Sodium Carbonate which turned pink. The pink solution was transferred in two separate clean glass bottles and their mouths were sealed with the seal of AK with the help of cloth and thread. Two paper labels were affixed on both the bottles which were marked as RHW-I and RHW-II. PW24 obtained signatures of panch witness and the complainant on the labels affixed on the bottles and also signed the same. The sealed bottles were seized vide memo Ex.PW6/C. PW24 prepared a tehrir Ex.PW24/A and also informed PS Vigilance regarding the success of the raid and also requested to send an IO at the spot. PW24 handed over the tehrir to HC Kanwar Singh with directions to get the case registered at PS Vigilance. After some time, Insp. Dharamvir Gautam reached there at the spot. PW24 handed over the case property with the documents prepared by him to Insp. Dharamvir Gautam alongwith both the accused persons. PW24 correctly identified accused SI Amit and Shekhar before the court. PW24 remained at the spot and after that they all alongwith the accused persons returned to PS Vigilance.
With the permission of Court Ld. Addl. PP for the State, put leading question to PW24 and he affirmed that he had mentioned the serial numbers of the GC notes in his pre-raid report prepared prior to the raid. PW24 also affirmed that he had directed the panch witness to give the signal to the raiding team by putting his hand over his head two times. PW24 also affirmed CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 33 of 94 that the panch witness had apprised him that the accused SI Amit was holding the bribe amount in his right hand. He also affirmed that he had prepared sample seal after sealing the exhibits and his seal after use was handed over to panch witness. PW24 stated that he could not recollect these facts due to lapse of time.
PW24 correctly identified envelop Ex.PW14/Article-1 containing 25 GC notes of denomination of Rs.2,000/- each, serial numbers of which were compared with the serial numbers mentioned in the pre-raid report Ex.PW14/Article-2, glass bottle containing pink solution marked as RHW-I Ex.P-1 and glass bottle containing pink solution marked as RHW-II Ex.P-II.
xxv) PW25 ASI Rakesh Kumar deposed that on 24.04.2019 and on 26.04.2019, as per directions of IO Insp. Virender Mor, he went to FSL, Rohini and brought the FSL resultS, which he handed over to IO and deposited the sealed exhibits with MHC(M), PS Vigilance.
xxvi) PW-26 Parveen Kumar, Alternate Nodal Officer, Reliance Jio, deposed that during investigation, his colleague Sh. Pankaj Sharma, Alternate Nodal Officer provided the certified copies of call details records (CDR) of mobile no. 8368464557 and 8178569258 for the period 16.05.2018 to 24.05.2018 Ex.PW26/A and Ex.PW26/B respectively and he identified signatures of Pankaj Sharma on the same. The letter of the investigating agency Ex.PW26/C was acknowledged by him. He further deposed that as per the certified copy of CAF of the CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 34 of 94 mobile number 8368464557 Ex. PW26/D the same was subscribed to Shekhar Kumar S/o Sh. Rameshwar Prasad Singh and as per CAF of mobile no. 8178569258 Ex. PW26/E, it was subscribed to Ranjit Chaudhary S/o Sh. Ravinder Prasad Chaudhary. He further deposed that the said CAFs were KYC based CAFs which were directly connected with the Aadhar card of the respective subscriber and bearing signature of Sh. Pankaj Sharma. He further deposed that Sh. Pankaj Sharma also provided certificate U/s 65B of Indian Evidence Act Ex. PW26/F in support of CDR and CAF of aforesaid two mobile numbers.
xxvii) PW27 Monika Bhardwaj deposed that in the year 2019, she was posted as DCP, West District, Delhi and passed sanction orders u/s 19 PC Act against accused Ex. SI Amit Kumar Ex.PW27/A and said order was sent to the Addl. Commissioner of Police, Vigilance vide letter dated 03.07.2019 Ex.PW27/B. xxviii) PW28 ACP Virender Mor deposed that on 30.10.2018 further investigation of this case was assigned to him. On 04.12.2018, he alongwith the complainant and both accused persons appeared before the court of Ms. Kiran Bansal, Ld. Special Judge and he filed an application Ex. PW28/A for obtaining specimen handwriting of both accused as well as of the complainant. Accused Shekhar gave statement that he is not disputing his sample signature given to the IO when he was in custody. Accused Amit Kumar and complainant Surender Singh gave their specimen handwriting before the court of Ld. Special CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 35 of 94 Judge. The specimen handwriting and signatures of accused Amit Kumar was Ex.PW28/B (colly) while specimen handwriting and signatures of complainant Surender Singh running into 2 pages were Ex.PW14/K and Ex.PW14/L and specimen handwriting and signature of accused Shekhar Kumar @ Shekhar Singh were Ex.PW28/C (colly). He further deposed that on 04.12.2018, complainant also produced photocopy of RC of vehicle no. HR-46D-5396, authorization certificate of NP(Goods) valid upto 13.03.2020 and National Permit for public carrier part A and B valid upto 13.03.2020 marked as Mark-Z4 (colly), which he seized vide seizure memo Ex.PW14/M. PW28 further deposed that on 20.12.2018, he sent the specimen handwriting of complainant as well as of accused persons alongwith questioned documents to FSL through HC Tara Chand for opinion. He further deposed that on 25.02.2019 he got collected the FSL result through Ct. Rakesh and on 24.04.2019, he also got collected FSL result regarding voice sample and mobile phone through HC Rakesh. He kept the FSL result on police file and deposited the exhibits in Malkhana. PW28 further deposed that on 26.04.2019, he also got collected another FSL result regarding handwash of accused Amit Kumar through HC Rakesh. He kept the FSL result on file and deposited the sealed exhibits with MSI(M).
PW28 further deposed that on 23.05.2019, he got issued one request letter to DCP for grant of sanction against accused SI Amit Kumar through Addl. C.P., Vigilance Branch. Later on sanction to prosecute U/s 19 PC Act against accused SI Amit Kumar was received which was placed on record. He CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 36 of 94 prepared the charge-sheet and filed the same before the court on 29.08.2019.
xxix) PW29 Insp. Dharamvir Gautam deposed that on 23.05.2018, he was posted as Inspector at PS Vigilance. At about 05:30 pm, Sh. L.C. Yadav, ACP, VIU called him in his office and told that Insp. Ajay Tyagi conducted a raid within the jurisdiction of PS Punjabi Bagh and one SI Amit Kumar and one public person had been apprehended regarding taking of bribe money. He was told that Insp. Ajay Tyagi was conducting the raid proceedings at Phool Bagh, Rampura within the jurisdiction of PS Punjabi Bagh and further investigation was to be conducted by him. Thereafter at about 05:45 pm, he proceeded for spot i.e. near Rampura Railway Phatak, Pubjabi Bagh while recording departure entry i.e. DD no. 27B Ex.PW1/D. At about 06:30 pm, he reached at the spot i.e. WZ-I, 1 st Floor, Phool Bagh, Rampura where Insp. Ajay Tyagi handed over him the case property, memos alongwith raid report, tehrir, complaint and custody of both the accused persons. He formally made enquiries from complainant Surender @ Sundar, panch witness Ramesh Chand Kesharwani and also formally interrogated accused Shekhar Kumar @ Shekhar Singh and SI Amit Kumar. PW29 prepared two site plans i.e. one of the locality Ex.PW29/A and another of the spot i.e. room at first floor of the said property Ex.PW29/B, at the instance of complainant. As public persons gathered there, he alongwith complainant, panch witness and accused persons came to PS Vigilance. PW29 interrogated the accused persons and thereafter, he arrested accused SI Amit CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 37 of 94 Kumar vide memo Ex.PW14/F and conducted his personal search vide memo Ex.PW14/H. He also arrested accused Shekhar vide memo Ex.PW14/G and his personal search was taken vide memo Ex.PW14/I. The articles recovered from the personal search of accused SI Amit Kumar and Shekhar Singh @ Shekhar Kumar were also kept in separate envelopes and sealed with the seal of DBG. He also seized two mobile phones which were with accused SI Amit Kumar vide seizure memo Ex.PW14/D. Two mobile phones with accused Shekhar Kumar @ Shekhar Singh were seized vide seizure memo Ex.PW14/E. PW29 further deposed that the settlement/statement Ex. PW14/B which was prepared by accused SI Amit Kumar in the shape of statement of Shekhar Singh regarding some settlement between complainant and accused Shekhar Singh was also seized vide memo Ex.PW14/J. PW29 recorded disclosure statement of accused SI Amit Kumar Ex.PW6/D. In pursuance to disclosure statement of accused SI Amit Kumar, accused led the police party to his house for recovery of earlier paid bribe amount but the same could not be recovered and a non-recovery memo Ex.PW29/C was prepared. Thereafter, they returned to the PS Vigilance and he deposited the case property with MHC(M).
PW29 further deposed that on 24.05.2018, both the accused persons were produced before the concerned court and he obtained one day PC remand of accused SI Amit Kumar. PW29 got recorded the statement of complainant U/s 164 Cr.P.C. Ex.PW14/A. Vide application Ex.PW29/E IO obtained statement of complainant u/s 164 Cr.P.C.
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 38 of 94PW29 also moved an application Ex. PW29/F before Ld. Special Judge for recording consent/willingness of accused persons to give their voice samples. PW29 had also prepared their separate memo regarding consent for voice sample Ex.PW29/G and Ex.PW29/H. PW29 also moved an application Ex. PW29/I for recording consent/willingness of complainant Surender Singh for voice sample. Ld. Special Judge after recording the statements of both the accused persons regarding their consents for giving their voice samples, disposed of his application dated 24.05.2018. Thereafter, accused SI Amit Kumar was got medically examined and he was taken to his room situated at first floor at PS Punjabi Bagh but nothing was recovered and he prepared a non-recovery memo Ex.PW7/A. PW29 further deposed that on 25.05.2018, accused SI Amit Kumar was produced before the court and remanded to J/C. Complainant Surender Kumar came at PS Vigilance and he handed over his mobile phone containing call recordings of conversation between complainant and accused SI Amit Kumar, Shekhar Singh and one another person namely Ashok, owner of Anshu Roadlines. PW29 went to the I.T. Centre of PS Vigilance which was situated in the premises of PS Vigilance and after hearing relevant conversations same were transferred in the office computer and thereafter, CD was prepared by him. The CD was containing three audio files regarding conversation with accused SI Amit Kumar and complainant. One file was of the conversation of 23.05.2018. Seven audio files were of accused Shekhar and 17 audio files were of Ashok with the complainant. The mobile phone of the complainant was seized vide memo CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 39 of 94 Ex.PW8/A and the CD was kept on file for day to day investigation. On 31.05.2018, PW29 sent a request letter Ex. PW29/J to Director, FSL for fixing date and time for taking voice samples of complainant, accused persons and one Ashok. FSL gave the dates for recording the voice samples on 14.06.2018 and 15.06.2018 vide their endorsement on the back of Ex.PW29/J. PW29 further deposed that on 01.06.2018, PW29 sent exhibits to FSL, Rohini through ASI Joseph but same could not be deposited due to some objections regarding stamp etc. He recorded statement of Ashok, owner of Anshu Roadlines. On 04.06.2018, he again sent the exhibits to FSL after removing the objections through Ct. Sandeep who deposited the same with FSL.
PW29 further deposed thereon 14.06.2018, ASI Kailash and Ct. Ankush accompanied PW29 to FSL, Rohini. Complainant Surender Singh @ Sundar and Ashok Kumar also reached at FSL, Rohini for getting their voice samples recorded. PW29 also deposed regarding recording of voice samples of the complainant, PW Ashok Kumar on 14.06.2018 and the seizure memo of cassettes kept in CD mailers containing original voice samples of complainant and PW Ashok Kumar and their copies Ex. PW8/B and Ex. PW8/C respectively. PW29 deposited the case property with MHC(M).
PW29 further deposed about recording of the voice samples of accused persons SI Amit Kumar and Shekhar Singh at FSL in audio cassettes which were kept in CD mailers. All four CD mailers were seized vide seizure memo Ex.PW8/D. PW29 deposited the case property with MHC(M).
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 40 of 94PW29 further deposed that on 25.06.2018, ASI Satpal Dagar, Reader to SHO, PS Punjabi Bagh, handed over one inner case diary in the handwriting of accused SI Amit Kumar Ex. PW13/B for the purpose of investigation and a report Ex. PW13/C to the effect that no complaint of Shekhar was registered in the complaint register of PS Punjabi Bagh during the period 16.05.2018 to 23.05.2018 and one copy of transfer order of accused SI Amit Kumar Ex. PW13/D, which were seized vide memo Ex.PW13/A. PW29 deposed that he had shown the document i.e. settlement recorded by SI Amit Kumar Ex.PW14/B which was taken into possession at PS Vigilance from his possession to ASI Satpal Dagar, who identified the handwriting and signatures of accused SI Amit Kumar on Ex.PW14/B. PW29 further deposed that on 26.06.2018, he took the mobile phones of complainant and accused persons as well as CD mailers containing original sample voices of complainant, Ashok Kumar as well as of accused persons to FSL, Rohini and deposited the same there. He deposited the copy of acknowledgment regarding deposit of case property as well as road certificate with MHC(M). PW29 submitted a request letter to DCP office for obtaining CDRs of relevant mobile phone numbers involved in the present case. Thereafter, PW29 was transferred and he deposited the file with MHC(R).
PW29 correctly identified accused SI Amit Kumar and Shekhar before the court. PW29 also correctly identified the case property before the court case property i.e. Ex.P2, Ex.P3, Ex.P4, Ex.P5, Ex.P6, Ex.P7, Ex.P8, Ex.P9, Ex.P-10, Ex.P12 CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 41 of 94 and Ex.P13 Ex.PW14/N, Ex.PW22/Article-2, Ex.PW22/Article- 3, Ex.PW22/Article-4 and Ex.PW29/Article-1.
Statement of accused persons :
7) After conclusion of prosecution evidence, statements of accused persons were recorded under Section 313 Cr.P.C wherein they denied the correctness of all the incriminating circumstances appearing in evidence against them and stated that they are innocent and falsely implicated in this case.
8) Accused SI Amit Kumar further stated that he did not know about the entire dispute regarding transport of goods between complainant PW14 and co-accused Shekhar, however, co-accused Shekhar had filed a complaint at PS in this regard.
He further stated that he had never threatened complainant and advised Shekhar and complainant to settle their dispute amicably. He had never demanded any money from the complainant at any point of time for any purpose. Complainant never met him on 17.05.2018 alongwith any Ashok nor any amount of Rs. 2.5 Lakhs was ever received or taken by him from complainant PW14. He had never asked the complainant to pay any amount next day. He stated that the complainant had disowned his complaint. He further stated that no amount of Rs. 30,000/- was taken or received by him from PW14 on 18.05.2018 and he had never asked the complainant to pay any amount of Rs. 2,20,000/- on 21.05.2018 and no threat was ever extended by him to the complainant. He further stated that he did not know about any CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 42 of 94 telephonic conversation between PW14 and Shekhar. He had never called co-accused Shekhar at any point of time for any purpose regarding dispute between them. He further stated that an amount of Rs. 50,000/- was never brought by complainant for giving it to him for any purpose. No pre-raid proceedings ever took place. No telephonic conversation took place between him and the complainant. He further stated that he did not demand or accept an amount of Rs. 50,000/- from the complainant in the office of Shekhar. No recovery was effected from his right hand palm. The currency notes and hand washes had been planted upon him. He had never demanded or accepted any money from complainant, at any point of time, for any purpose. The matter was compromised between the complainant and accused Shekhar and a compromise note type statement of Shekhar was written by him on 16.05.2018 but it was signed only after payment of settlement amount by the complainant to Shekhar. He did not go to Bahadurgarh with complainant or Shekhar or with any other police official at any point of time on 16.05.2018. He further stated that Shekhar had given a complaint and dispute between him and the complainant were within the jurisdiction of PS Punjabi Bagh and he never visited Bahadurgarh officially or unofficially at any point of time or on 16.05.2018 and there was no collusion between him and accused Shekhar for any purpose. Accused Amit preferred to lead evidence in his defence.
9) Accused Shekhar Kumar further stated that since the complainant Surender had failed to deliver the entire consignment, therefore, the consignee deducted the amount, as a CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 43 of 94 result of which he suffered losses, which he asked the complainant to reimburse. Initially complainant refused and therefore he lodged a complaint against him in PS Punjai Bagh, where a settlement was arrived for Rs. 80,000/-. He further stated that the canter was never retained by him and freight of the canter was paid to Surender in advance. He further stated that in the police station Punjabi Bagh some verbal altercation took place between him and Surender. Accused SI Amit Kumar, who was posted in the said police station, at the instance of Duty Officer, intervened and thereafter a compromise was arrived at between him and Surender and Surender agreed to pay Rs. 80,000/- towards full and final settlement. Accused SI Amit Kumar was not known to him prior to that day. The compromise was reduced into writing but he refused to sign stating that till Surender pay him the agreed amount, he would not sign the same. He further stated that since he matter was compromised there, no FIR was got registered in PS Punjabi Bagh against Surender by him. He further stated that he did not have any office at the first floor. His office was situated on the ground floor near Daikin Showroom, at WZ-1, Phool Bagh, Rampura, Delhi. It is further stated that he had only demanded Rs. 1 Lakh as damages from PW14 Surender because he had suffered financial loss on account of lapse on his part. Initially PW14 refused but in the police station Punjabi Bagh, Surender agreed to pay Rs. 80,000/- to him towards full and final settlement for said damages. In this regard a written compromise was also arrived between him and Surender. No payment was made to him in the police station by Surender as he sought time. However, it CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 44 of 94 appeared later that Surender wanted to wriggle out and therefore he made a false complaint. Accused Shekhar Kumar also preferred to lead evidence in his defence.
10) Accused persons examined six defence witnesses in their defence. The brief summary of deposition of defence witnesses is as under:-
i) DW1 SI Umesh Tiwari produced the
summoned record i.e. original order no.
3708-4068/HAR/PHQ daed 10.05.2013 issued by Sh. Neeraj Kumar, Commissioner of Police, Delhi, Ex. DW1/A regarding entries made in Daily Diaries (Roznamcha) upon departure and arrival.
ii) DW2 HC Anil Kumar produced the summoned record i.e. original DD registers containing DD No. 4B dated 23.05.2018 Ex. DW2/A, DD No. 7A dated 22.05.2018 Ex. DW2/B, DD No. 26B dated 22.05.2018 Ex. DW2/C, DD No. 8B dated 23.05.2018 Ex. DW2/E and DD No. 31B dated 23.05.2018 Ex. DW2/F. He also produced order dated 18.05.2018 issued by Assistant Commissioner of Police/HQ/Vigilance Delhi regarding assignment of flying Squad Duty from 21.05.2018 to 27.07.2018 Ex. DW2/D. He deposed that he had not brought any record pertaining to issuance of Phenolphthalein powder and IO kit to the RO for 23.05.2018 as no such record was maintained in their office.
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 45 of 94 iii) DW3 HC Prashant has produced the
summoned record i.e. RTI reply no.
(ID-664/23)/1883/RTI/Vigilance dated 13.06.2023 in
respect of the RTI application filed by Amit Kumar, s/o Sh. Shyam Dass, Ex. DW3/A. He also produced the summoned record i.e. RTI reply no.
(ID-1658/19)/37/RTI/Vigilance dated 14.01.2020 in respect of the RTI application filed by Manoj Singh, advocate, Ex. DW3/B.
iv) DW4 Ajit Singh, Alternate Nodal Officer, Vodafone Idea Ltd., produced CAF of mobile no. 9811133856 alongwith ID proof i.e. driving licence of customer Ajay Kumar, s/o Mahendra Singh, Ex. DW4/A; its CDR w.e.f. 01.05.2018 to 31.05.2018 Ex. DW4/B; Cell ID Chart Ex. DW4/F; D-KYC of mobile no. 8053815911 of customer Sukhchain s/o Sundar Singh Ex. DW4/C, its CDR Ex. DW4/E and certificates u/s 65B of I.E.Act Ex.
DW4/D and Ex. DW4/G.
v) DW5 HC Sandeep Kumar produced DD
registers A and B of PS Punjabi Bagh as per which there was no entry dated 01.06.2018 related to Ct. Bhagirath, No. 866/W regarding his visit to PS Vigilance Branch, Barakhamba Road, New Delhi.
vi) DW6 ASI Sanjeev produced diary and CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 46 of 94 dispatch register of the year 2018 as per which vide entry no. 299 dated 22.05.2018 one letter was dispatched to Director, Vigilance, NDMC, Palika Kendra, New Delhi, for providing independent witness, which was sent through HC Rakesh. He deposed that the copy of said letter must be with the concerned IO. He further deposed that the record pertaining to issuance of Phenolphthalein powder to the Raid Officer for 23.05.2018 must be available with Malkhana as government properties were issued to the Vigilance officials by the Malkhana Incharge only. The IO kits were retained by the IOs with them.
Arguments :
11) It is argued by ld. Counsel for the accused that the raid proceedings stand vitiated as no verification was conducted on the contents of the complaint filed by the complainant. It is stated that the complainant PW14 has not supported the case of the prosecution and has turned hostile on the aspect of initial demand as well as demand at the spot and has also disowned his own complaint Ex. PW6/A. It is urged that even the panch witness has not deposed regarding any demand of bribe having been made by accused SI Amit in conspiracy with accused Shekhar. It is urged that mere acceptance without any proof of demand is not enough to sustain conviction under the charged provisions of P.C.Act. It is also urged that the prosecution has also not been able to establish the trap proceedings beyond doubt and the handwash has been planted upon the accused SI Amit. It is urged that the complainant failed to deliver entire goods of CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 47 of 94 accused Shekhar, who suffered losses on that account and hence he asked the complainant to reimburse. Initially the complainant refused and therefore a complaint was lodged against him at PS Punjabi Bagh and thereafter a settlement Ex. PW14/B was arrived at between accused Shekhar and the complainant on 16.05.2018 and the same was signed on 23.05.2018 after the amount of Rs. 50,000/- was handed over to accused Shekhar by the complainant in pursuance of the said settlement. It is also argued that the spot of incident has been indicated to be the office of accused Shekhar at first floor portion of the property no.
WZ1, Phool Bagh, Rampura, Delhi, however, the prosecution has failed to prove that any such office on the first floor belonged to accused Shekhar. Hence, the prosecution has failed to prove the spot of raid proceedings. It is also urged that the prosecution has miserably failed to prove that accused SI Amit visited Bahadurgarh with accused Shekhar to recover his goods. It is urged that neither the complainant nor PW16 Ashok have deposed regarding the same and the testimony of the police official PW18 Const. Bhagirath is not reliable. It is also urged that the audio recording relied upon by the prosecution are not proved as per law and even the transcript on record with which the IO was confronted with by the accused, does not contain any incriminating material.
12) On the other hand, it is contended by ld. Chief P.P. for the State that no doubt the complainant turned hostile and did not support the prosecution case, however, the culpability of the accused persons is proved through the testimony of panch CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 48 of 94 witness PW6 who supported the case of the prosecution. It is urged that the FSL report Ex. PW10/A indicates the presence of Phenolphthalein and Sodium Carbonate in the right hand-wash of accused Amit, who was caught red-handed during raid proceedings. It is urged that the testimony of PW18 Ct. Bhagirath proved that accused SI Amit had gone to Bahadurgarh alongwith accused Shekhar for recovery of his goods and accused SI Amit acted without any authority and affected recovery of the goods of accused Shekhar. It is argued that the voice recording contained in CD Ex. PW22/Article-I was examined and the FSL result Ex. PW22/A reveals that there was no indication of any alteration in the voice recording and the voice recordings contained the voice of accused Shekhar and the complainant Surender. It is accordingly urged that the accused persons are liable to be held guilty of the offences they are charged with.
13) I have heard ld. Counsel for the parties and perused the record.
14) Before appreciating evidence in this case, it is important to note that even in a case under Prevention of Corruption Act, 1988, the onus is on the prosecution to prove the the foundational facts. The Hon'ble Supreme Court in State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede Crl.Appeal No. 1350 of 2009, d.o.d. 29.07.2009 held that the foundational facts must be established by the prosecution. It was also observed that that while invoking the presumption under CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 49 of 94 section 20 of PC Act, the court is required to consider the explanation offered by the accused, if any, only on the touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt. The Hon'ble Supreme court made the following observations in this regard:
"16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. 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 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 Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-`-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt." (emphasis supplied)
15) The Hon'ble Supreme Court in A. Subair v. State of Kerala [(2009) 6 SCC 587] while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 50 of 94 otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.
16) The Constitution Bench of Hon'ble Supreme Court in Neeraj Dutta vs. State, Govt. of NCT of Delhi, Crl. Appeal no.
1669 of 2009, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13 (1) (d) (i) & (ii) of the PC Act, summarized as under :-
" 68. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 51 of 94
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 52 of 94 gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point
(e) as the former is a mandatory presumption while the latter is discretionary in nature." (emphasis supplied)
17) Viewed in light of law discussed herein-above, it has to be examined as to what extent the prosecution has succeeded in proving the charge against the accused. It is the case of the prosecution that the accused SI Amit Kumar demanded illegal gratification of Rs. 5,00,000/- as bribe in lieu of not taking any action against the complainant owing to the dispute between the complainant and accused Shekhar in respect of the goods consignment of accused Shekhar being taken to Chennai in the truck of the complainant. It is stated that accused SI Amit Kumar obtained the bribe amount of Rs.2,50,000/- from the complainant on 17.05.2018 and thereafter obtained Rs. 30,000/- as bribe CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 53 of 94 amount on 18.05.2018. Accused SI Amit further demanded remaining amount of illegal gratification of Rs. 2,20,000/- and was caught red handed during raid proceedings and bribe amount of Rs. 50,000/- was recovered from accused SI Amit Kumar and accordingly the accused persons committed offence under section 120B IPC and under section 7/13(1)(d) of PC Act read with section 120B IPC.
Testimony of complainant:
18) The complainant Surender was examined as PW14.
He deposed that earlier he was in the transport business. He was introduced to New Green Transport, Rampura, Delhi by one Ashok of Anshu Roadlines. On 07.05.2018, he received a call from Shekhar, who stated that some goods were to be transported to Chennai. He visited office of Shekhar situated at Rampura Road alongwith his vehicle i.e. canter bearing no. HR-46D-5396. His canter was loaded with goods and the canter left for Chennai and he returned back to his office at Bahadurgarh. After about 2 hours, he again received call from Shekhar, who said that some more goods were to be transported to Chennai, hence, complainant again visited the office of Shekhar situated at Rampura Road. PW14 saw that the goods were in huge quantity and he stated to Shekhar that it was not possible to send the goods in his canter. The goods were loaded in another vehicle i.e. another canter of friend of PW14. PW14 alongwith the canter loaded with goods reached at his office at Bahadurgarh. As goods of his another client were to be loaded in the same CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 54 of 94 canter for Chennai but the goods of his another client got delayed and as such canter could not leave for Chennai in time. After 3-4 days, his canter bearing no. HR-46D-5396 reached Chennai. The client of Shekhar from Chennai telephonically informed Shekhar that the entire goods were not received in Chennai. Shekhar called PW14 and apprised him about the aforesaid facts. PW14 informed Shekhar that complete goods could not be sent to Chennai and they were lying in the canter at his office at Bahadurgarh. PW14 also apprised Shekhar that his goods would be sent after one day but he refused and insisted upon return of his goods. Shekhar alongwith his staff visited the office of PW14 at Bahadurgarh and PW14 returned the remaining goods to Shekhar. Shekhar blamed PW14 for the delay in delivery of goods and asked him to give Rs.One Lakh as penalty for the delay. PW14 insisted that he did not have the aforesaid amount. Shekhar again called PW14 at his office at Rampura Road and told him "paisa to tumhe dena hi padega, nahi to tere khilaf complaint-kanooni karwaahi karunga". Thereafter, PW14 and Shekhar visited PS Punjabi Bagh. Shekhar gave a written complaint to the Duty Officer of PS Punjabi Bagh. The Duty Officer asked them to sit for some time. There was some verbal altercation between PW14 and Shekhar at the PS over undelivered goods as well as non-payment of cartage of earlier vehicle which had already reached Chennai. In the meantime, accused SI Amit Kumar came there and asked them why they were shouting. The Duty Officer requested accused SI Amit Kumar to look into the complaint given by Shekhar. Accused SI Amit firstly talked to Shekhar and then to PW14. Accused SI CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 55 of 94 Amit also told them that "agar tum aapas mein samjhota kar lete ho to thik hai, nahi to kanooni karkwaahi karni padegi ". PW14 and Shekhar compromised the matter for an amount of Rs.80,000/-. Shekhar told PW14 to bring the amount of Rs.80,000/-. PW14 called his friend telephonically and asked him for Rs.80,000/-, who replied "ek ghante me pata karke batata hoon". PW14 assured Shekhar that the money would come and asked him to get prepared the Raajinama/compromise. Accused SI Amit wrote their Raajinama/ compromise. Again Shekhar asked for the money and PW14 again called his friend telephonically, who told that it would take 4-5 days to arrange the aforesaid amount. After that Shekhar refused to sign the Raajinama and insisted that he would sign the settlement/compromise only after receiving the aforesaid amount. Thereafter, PW14 and Shekhar came outside the PS. The Raajinama/compromise was left with accused SI Amit. PW14 correctly identified accused Shekhar before the court and then after pointing out towards accused Amit, PW14 stated that he might be SI Amit.
19) PW14 further deposed that he was not able to arrange the amount of Rs.80,000/- and could arrange only Rs.50,000/-. He again spoke to Shekhar telephonically, who insisted that PW14 should pay him Rs.80,000/-. Thereafter, PW14 approached one of his acquaintance namely Raju for arranging the entire amount, who asked him about the purpose for demanding the money. PW14 narrated the entire story and Raju advised PW14 to make a complaint against accused SI Amit CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 56 of 94 and Shekhar in the Vigilance. Raju got typed a complaint from a typist. PW14 visited Vigilance office on 23.05.2018 and met one person, who advised him to go to the 3rd Floor of the Vigilance Office. PW14 met with Vigilance officials and gave his typed complaint to a person, who was sitting in a civil dress. The person to whom PW14 had given the complaint stated that they do not take action against civilians. The said person informed PW14 that he should name SI Amit that he was demanding money and then action could be taken. PW14 apprised them that SI Amit was not demanding money from him and that Shekhar was demanding money. After that the said person handed over a paper to PW14 and asked him to write a complaint on his dictation. PW14 was also directed to meet them outside PS Punjabi Bagh after 02:00 pm.
20) PW14 further deposed that he reached at PS Punjabi Bagh by Metro Train. At about 02:00 pm, the officials of Vigilance reached outside PS Punjabi Bagh in a Van. PW14 was asked by Vigilance officials to make a call on the mobile phone of accused SI Amit. PW14 made a call to accused SI Amit and apprised him that he had reached the PS Punjabi Bagh. Accused SI Amit told PW14 not to talk to him and rather talk to Shekhar. Thereafter, PW14 called Shekhar who told him to come to his office. PW14 visited his office at Rampura Road by an e- rickshaw and the Vigilance officials reached there in a Van. PW14 sat in the office of accused Shekhar. After some time, accused Shekhar came and PW14 told him that he could arrange only Rs.50,000/- and accused Shekhar agreed to accept the CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 57 of 94 amount of Rs.50,000/-. PW14 told accused Shekhar to give the Raajinama/ compromise after putting his signature on the same. Accused Shekhar called accused SI Amit telephonically to his office. After some time, accused SI Amit came at the office of accused Shekhar. PW14 gave cash amount of Rs.50,000/- to accused Shekhar. Accused SI Amit told them to sign the Raajinama/compromise which was prepared on 16.05.2018 and they signed the same. After some time, the Vigilance team entered the office of accused Shekhar. Vigilance official told PW14 to go outside the office of Shekhar and he bolted the office from inside. After some time, Vigilance team came outside downstairs alongwith accused SI Amit and Shekhar. PW14 was standing outside. PW14 was directed by Vigilance officials to reach the Vigilance office. PW14 went to Vigilance office by Metro train. After some time, the Vigilance team alongwith accused SI Amit and Shekhar reached in their office. At the office of Vigilance, PW14 was asked to sign on paper slips affixed on two bottles containing some liquid. One more person namely Ramesh Chand also signed the paper slip whose name PW14 came to know later on. After that, PW14 and Ramesh Chand were asked to sign some blank papers. Mobile phone of PW14 was taken by Vigilance officials. Later on at about 01:00 am in the intervening night of 23/24.05.2018, PW14 was asked to leave the office of Vigilance and was instructed to reach Tis Hazari Court on that day in the afternoon. PW14 reached Tis Hazari Court in the afternoon where he met Insp. Dharambir Gautam. PW14 was taken to chamber of Ld. Judge. PW14 was directed by Insp. Dharambir Gautam to state whatever was CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 58 of 94 written in his complaint to the Ld. Judge. His statement was recorded by the Ld. Judge vide Ex. PW14/A(colly).
21) PW14 identified his signatures on the complaint dated 23.05.2018 Ex.PW6/A and stated that the said complaint was written by him at Vigilance office at the dictation of Vigilance official.
22) 25 currency notes of denomination of Rs.2,000/- each were shown to PW14 and their serial numbers were compared with the serial numbers mentioned in the pre-raid report and the seizure memo and found to be correct. The GC notes and the envelop are Ex. PW14/Article-1. PW14 identified his signatures on paper slip pasted on one sealed glass bottle containing pink colour liquid Ex.P1. He also identified his signatures on one compromise in Hindi language Ex. PW14/B.
23) PW14 was cross-examined by Ld. Addl. PP for the State as he was resiling from his previous statement given to the police. In his cross-examination PW14 affirmed that on 07.05.2018 due to some reason half the goods loaded in his canter was unloaded and the remaining goods were transported to Madras where his canter was stopped at the instance of accused Shekhar, owner of the New Green Transport. PW14 further affirmed that he had also returned the goods which were unloaded to accused Shekhar. PW14 affirmed that Shekhar had made complaint at PS Punjabi Bagh against him and accused Shekhar had retained his canter and had also not paid the freight CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 59 of 94 of the Canter. PW14 denied that accused SI Amit Kumar threatened to implicate him and also put him behind bars for disappearance of goods of accused Shekhar and had also demanded Rs. 5 Lakhs from him (PW14) for the above purpose. PW14 further denied that on 17.05.2018 i.e. next day he was sent to police station alongwith Ashok by accused Shekhar where IO/SI Amit Kumar had taken Rs.2.5 lakh from him and that IO/SI Amit had further told him to give the remaining amount the next day and that on 18.05.2018 again PW14 had paid Rs.30,000/- to accused SI Amit Kumar, who again asked for the remaining amount of Rs.2,20,000/- to be paid by 21.05.2018 or that he had threatened to put him behind bars if he did not pay the aforesaid amount or that PW14 will be deprived of his vehicle. PW14 also denied that he telephonically contacted accused Shekhar and requested him to get his vehicle released or that accused Shekhar replied and asked to pay the remaining amount to accused SI Amit Kumar or that PW14 was asked to come to PS Punjabi Bagh, the next day, or that accused SI Amit Kumar had called accused Shekhar several times for the said purpose. PW14 also denied that he had made statement Mark-Z, to the police u/s 161 Cr.P.C.
24) PW14 deposed that he was asked to write the complaint by the Vigilance officials. PW14 had also taken one typed complaint against accused Shekhar with him and had handed over the same to the Vigilance officials. PW14 denied that he stated to the police that he had given complaint against SI Amit Kumar for demanding of bribe from him. PW14 denied CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 60 of 94 that he went to Vigilance office alongwith Rs.50,000/- i.e. 25 GC notes of Rs.2,000/- denomination, which was to be given to accused SI Amit Kumar. PW14 denied that he in his presence the panch witness namely Ramesh Chand Kesarwani also read the complaint and enquired from him and after satisfying himself, he had also signed the complaint. PW14 further denied that the RO Insp. Ajay wrote the serial numbers of the GC notes in the raid report or that Insp. Ajay applied phenolphthalein powder on the aforesaid notes or that RO asked the panch witness to touch the GC notes with his right hand or that the right hand wash of the panch witness was taken in sodium carbonate solution which turned pink or that specialty of phenolphthalein powder was explained to them by the RO or that the powder smeared notes were handed over to him or that he kept the aforesaid notes in the right pocket of his pant or that he and panch witness were directed by the RO to pay the bribe amount when demanded by the accused or that the panch witness was directed to see and hear the entire process or that after satisfying that the accused had accepted the bribe amount the panch witness should give signal to the raiding party by waving his right hand over his head two times or that RO threw the pink colour solution and the bottle and glass were cleaned with the help of soap or that the panch witness also cleaned his hands or that the remaining phenolphthalein powder was handed over to DO of PS Vigilance or that he telephonically contacted accused SI Amit from his mobile no. 8168961034 on his mobile no. 9911456545 or that accused SI Amit asked him to meet accused Shekhar. PW14 further denied that he alongwith panch witness and raiding CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 61 of 94 party left in a government vehicle no. DL1CJ5549 for PS Punjabi Bagh or that RO again briefed them at outside PS Punjabi Bagh or that he along with panch witness was directed to proceed or that he received call from Ashok on his mobile phone or that Ashok directed him to talk to Shekhar or that PW14 telephonically contacted Shekhar or that Shekhar directed PW14 to come to his office or that the panch witness also heard the conversation between him and accused Shekhar on the speaker of his mobile phone. PW14 further denied that they all left in government vehicle and reached at the office of accused Shekhar situated at 2/10, Office New Green Transport Service near Ashok Park Metro Station, Phool Bagh, Rampura, Delhi or that he alongwith panch witness went to the first floor where the office of accused Shekhar was situated or that after 35-40 minutes, accused SI Amit also came there and demanded Rs.50,000/- from him and accepted the amount or that earlier accused Shekhar had informed him that accused SI Amit Kumar was coming to his office within 10-15 minutes or that accused Shekhar asked about the identity of panch witness and PW14 introduced him as his nephew or that accused SI Amit Kumar wrote a statement on a plain paper and obtained signature of accused Shekhar and PW14. PW14 further denied that after that accused SI Amit asked for the remaining bribe amount and PW14 told him to pay the balance amount in 2-4 days or that the panch witness gave the pre-determined signal to the raiding party after accused SI Amit accepted the bribe money or that the RO alongwith his team came in the office of accused Shekhar and apprehended accused SI Amit or that the amount of Rs.50,000/- was recovered from CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 62 of 94 the right hand palm of accused SI Amit or that accused SI Amit disclosed his name and address and place of posting to the RO or that the RO gave the introduction of the raiding party to accused SI Amit or that accused SI Amit was offered to take the search of the raiding party members, which he refused or that the serial numbers of the GC notes were tallied with the serial numbers mentioned in the pre-raid report and found to be correct or that the recovered currency notes were taken into police possession after keeping them in a brown colour envelope and sealed with the seal of AK. PW14 further denied that the right hand wash of accused Amit was taken in solution of sodium carbonate which turned pink and pink liquid was transferred in two separate clean glass bottles and were marked as RHW-I and RHW-II after sealing them with the seal of AK with the help of cap and cloth or that paper slip was pasted on both the sealed bottles and he alongwith the panch witness and RO signed the said paper slips or that the exhibits were taken into police possession through seizure memo. PW14 further denied that the panch witness was interrogated or that RO prepared a tehrir and sent to PS Vigilance through HC Kanwar Singh for the registration of the case or that the IO/Insp. D.V. Gautam came at the spot and took over the investigation or that IO interrogated the panch witness, RO/Insp. Ajay and also made enquiries from PW14 or that thereafter, accused was arrested and his search papers were prepared or that site plan was prepared at the instance of PW14 or that they all returned alongwith the case property to PS Vigilance or that in the office of PS Vigilance two mobile phones of accused SI Amit and two mobile phones of accused Shekhar were seized and CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 63 of 94 sealed with the seal of DBG separately in two envelopes and seizure memo was prepared in this regard or that accused Shekhar was arrested and his search papers were prepared which were signed by PW14, panch witness and IO or that the agreement prepared in the office of Shekhar was also seized by the IO through seizure memo which was also signed by PW14.
25) PW14 identified his signatures on the raid report Ex.PW14/C (colly), seizure memo of GC notes Ex. PW6/B and seizure memo of hand wash and sample seal Ex.PW6/C, seizure memo of mobile phones of accused Amit Kumar Ex. PW14/D and Shekhar Ex. PW14/E. PW14 also identified his signatures on arrest memo of Amit Kumar Ex. PW14/F, arrest memo of accused Shekhar Ex. PW14/G and personal search memo of accused Amit Kumar Ex. PW14/H and personal search memo of Shekhar Ex. PW14/I. PW14 also identified his signatures on the seizure memo of agreement Ex.PW14/J and seizure memo of his mobile phone Ex.PW8/A. PW14 affirmed that his statement was recorded by Ld. MM on 24.05.2018 at Tis Hazari Court, however, he voluntarily stated that he had given his statement as per the dictation of Insp. D.V. Gautam. PW14 denied having made statement dated 25.05.2018 Mark-Z1 to the police.
26) PW14 denied that on 25.05.2018, he visited the office of Vigilance and handed over his mobile phone make 'Gionee' Company light golden colour having SIM of JIO no. 8168961034 and Vodafone no. 9813878402 through which he had contacted accused SI Amit Kumar and accused Shekhar CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 64 of 94 between 21.05.2018 to 23.05.2018 and recorded the conversation. PW14 voluntarily stated that his phone was taken by officials of Vigilance on 23.05.2018. PW14 further denied that the phone was connected to the computer and the CD of the recordings was prepared after hearing the recordings. PW14 denied that there were 17 audio files in the said recording between 21.05.2018 to 23.05.2018 or that his mobile phone alongwith the recordings contained in the CD was taken into police possession after putting his mobile phone in a sealed envelope sealed with the seal of DBG, vide seizure memo Ex.PW8/A.
27) PW14 denied having made statement dated 14.06.2018 Mark-Z2 to the police. PW14 denied that on 14.06.2018, he reached FSL, Rohini as instructed by the IO where his voice sample was recorded in an audio cassette and a copy thereof was prepared or that the original cassette was marked 'O' and the copy was marked as 'C' or that both the cassettes were kept in separate CD mailer and were sealed with the seal of DBG and taken into police possession through seizure memo. PW14 deposed that he had signed the cassettes and the CD mailer in the office of Vigilance. PW14 identified his signatures on the seizure memo Ex.PW8/B of his voice sample. PW14 admitted that on 02.07.18, he joined the investigation of present case and visited the office of vigilance where his specimen handwriting/signatures were taken on some pages for comparison purpose and he identified his specimen handwriting/signatures Ex. PW-14/K and Ex. PW-14/L. CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 65 of 94
28) PW14 affirmed that on 07.05.18, his driver Jasbir had loaded goods in vehicle no. HR46D5396 make canter from New Green Transport, Punjabi Bagh, Delhi and departed for Madras. PW14 affirmed that there was some disputes regarding freight and he deloaded some goods. PW14 affirmed that the owner of New Green Transport Punjabi, Bagh had sent one of his person alongwtih bilty. PW14 affirmed that the bilty was not given to his driver and when the canter reached Madras and some shortage of goods were detected, his canter was halted there and after 30 days, he received his canter. PW14 affirmed that on 17.05.18, he returned all the goods. PW14 affirmed that he had taken the amount of Rs.2,80,000/- from his friend Dharambir on credit, who had withdrawn the amount from the bank and handed to him. PW14 denied that the aforesaid amount was to be given as bribe. PW14 voluntarily stated that he had handed over the amount to Ashok of Anshu Roadways to get release his canter. P14 affirmed that canter number HR46D5396 was registered in the name of Dharambir, one of his co-villager. PW14 affirmed that he had also handed over the copy of papers of vehicle i.e. aforesaid canter to the IO and promised to give the documents related to withdrawal of the aforesaid amount from the bank to the IO. PW14 identified his signatures on the seizure memo of document vehicle no. HR46D5396 Ex. PW-14/M and photocopies of documents of vehicle Mark Z-4 (colly).
29) PW14 correctly identified his smart phone make 'GIONEE' Ex.P-9. PW14 also correctly identified his signatures CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 66 of 94 on the CD mailer on which original voice sample cassette of complainant Surender Singh was written Ex.PW14/N. From inside the CD mailer Ex. PW14/N, one audio cassette of make 'Maxell' was taken out alongwith its cover Ex.PW22/Article-2 on which PW14 identified his signatures and when the said audio cassette was played in the cassette player and after listening the contents of the audio cassette, PW14 stated that this was his voice which was recorded at FSL by the FSL authorities.
30) PW14 identified the CD i.e. CD-1 which was played on the court computer and after listening to the contents thereof, PW14 stated that the same was the conversation between him and accused Shekhar on the mobile phone. The said CD-1 is Ex.PW22/Article-1.
31) PW14 also identified another CD i.e. CD-R which was played on the court computer and after listening to the contents thereof, PW14 stated that the same were the auto recordings of his mobile phone Ex.P9. The CD-R is Ex.PW14/Article-X.
32) PW14 denied that he was won over by the accused persons and that is why he was intentionally and deliberately not disclosing the true facts of the case and deposing falsely on oath.
33) Accordingly, perusal of the testimony of complainant PW14 reveals that he has supported the prosecution version as regards dispute between him and accused Shekhar CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 67 of 94 regarding delivery of goods of accused Shekhar at Chennai in the vehicle/canter of PW14. In his cross-examination by ld. Addl.P.P. for the State, PW14 affirmed that on 07.05.2018 his driver Jasbir had loaded the goods in the vehicle no. HR-46D- 5396, canter from New Green Transport, Punjabi Bagh, Delhi, and it departed for Chennai. The dispute arose as the complete goods of Shekhar were not sent to Chennai and shortage of goods was detected which were found lying at the office of the complainant. The canter of the complainant was stopped there and it was returned after 30 days. In his cross-examination by ld. Addl.P.P. for the State, the complainant further affirmed that on 17.05.2018 he had returned all the goods. PW14 also deposed that accused Shekhar blamed the complainant for delay in delivery of goods and also asked the complainant to give Rs.1 Lakh as penalty for the delay and that Shekhar also filed a complaint at PS Punjabi Bagh against the complainant. He also deposed that when he and accused Shekhar visited PS Punjabi Bagh, there was altercation between him and accused Shekhar over undelivered goods and payment of cartage in respect of the goods which had reached Chennai. PW14 deposed that at that time accused SI Amit came there and asked them as to why they were shouting. PW14 further affirmed in his cross-examination by ld. Addl.P.P. for the State that the canter bearing registration no. HR-46D-5396 was registered in the name of one Dharamvir, who used to reside in his village and further that he had taken an amount of Rs. 2.8 Lakhs from his friend Dharamvir on credit, who withdrew the said amount from the bank and gave it to him. PW14 denied that the said amount was to be given as bribe and CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 68 of 94 volunteered that he had handed over the said amount to Ashok of Anshu Roadways to get his canter released.
34) As regard the allegations of demand of bribe, PW14 stated that accused SI Amit told them to compromise the matter otherwise legal action would be taken. At this PW14 and accused Shekhar compromised the matter for an amount of Rs. 80,000/- and accused Shekhar asked the complainant to bring the said amount. PW14 deposed that accused SI Amit prepared the Compromise Deed/Razinama and wrote the same. PW14 requested for 4-5 days to arrange the amount of Rs. 80,000/- at which accused Shekhar refused to sign the compromise deed and insisted that he would sign it only after receiving the said amount. The said compromise deed was left with accused SI Amit and the complainant and accused Shekhar left the PS.
35) Hence, the testimony of PW14/complainant reveals that he has not supported any allegation of initial demand of Rs. 5 Lakhs from him by accused SI Amit. The complainant has also turned hostile regarding the obtainment of Rs. 2,50,000/- on 17.05.2018 and Rs. 30,000/- on 18.05.2018 and further demand of Rs. 2,20,000/- to be paid by 21.05.2018. Though the complainant stated that he had taken Rs. 2.8 Lakhs on credit from his friend Dharamvir and handed over the same to Ashok of Anshu Roadways to get his canter released, however, he denied that the said amount was to be given as bribe.
36) The complainant was cross-examined at length by CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 69 of 94 ld. Addl.P.P. for the State regarding the same and he was also confronted with his initial complaint Ex. PW6/A wherein the said facts were mentioned, however, the complainant denied the suggestions regarding the same. Though the complainant admitted his signatures on the complaint Ex. PW6/A, however, he stated that after compromise with accused Shekhar, the complainant was unable to arrange the compromise amount of Rs. 80,000/- and could arrange only Rs.50,000/-. He spoke to Shekhar in that regard but he insisted on the amount of Rs. 80,000/-. The complainant PW14 deposed that he was advised by one of his acquaintance namely Raju to make a complaint against accused SI Amit and Shekhar in the vigilance department and he got a complaint typed from a typist. The complainant went to the Vigilance Office on 23.05.2018 and he met the Vigilance officials and gave his typed complaint and he was told that they do not take action against civilians and therefore he should mention the name of SI Amit that he was demanding money and then action could be taken. PW14 deposed that he told them that SI Amit was not demanding money and Shekhar was demanding money. Thereafter he was handed over a paper and asked to write the complaint on the dictation of that vigilance official. Accordingly, even though the complaint Ex. PW6/A is in the handwriting of the complainant and bears his signatures, however the complainant stated that the same was written by him at the instance of a vigilance official. The complainant therefore disowned the allegations of demand of illegal gratification of Rs. 5 Lakhs by accused Amit or subsequent obtainment of the amount of Rs. 2,50,000/- or Rs. 30,000/- or further demand of CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 70 of 94 remaining amount of Rs. 2,20,000/- by accused SI Amit.
37) The complainant has also turned hostile regarding the pre-raid proceedings and has not deposed regarding the same and during his cross-examination by ld. Addl.P.P. for the State, he denied all the suggestions regarding the pre-raid proceedings including meeting the panch witness or handing over of Rs. 50,000/- to the Raiding Officer Insp. Ajay by the complainant or noting down of the serial numbers of the said GC notes or smearing of Phenolphthalein powder on GC notes of Rs. 50,000/- or that he proceeded with the raiding party to PS Punjabi Bagh. The complainant was also confronted with his statement Mark-Z and he denied the suggestion to the contrary regarding the facts mentioned therein.
38) As regards the raid proceedings, the complainant PW14 deposed that the Vigilance Official directed him to meet them outside PS Punjabi Bagh after 02.00 pm on 23.05.2018 and the complainant reached there by Metro train. When he reached there he was asked by the Vigilance Officials to make a call on the mobile phone of accused SI Amit, who told him not to talk to him but to talk to Shekhar. At this PW14 called Shekhar, who asked him to come to his office. Hence, the complainant turned hostile as regards the fact that he had gone to PS Punjabi Bagh alongwith the raiding party or the fact that the RO briefed them on reaching there or that panch witness heard any conversation between him and Ashok, who directed him to talk to Shekhar or that they all left for the office of Shekhar in Govt. vehicle.
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 71 of 9439) PW14 further deposed that he visited the office of Shekhar at Rampura Road by e-rickshaw and the vigilance officials reached there in a van. He sat at the office of accused Shekhar, who came there after some time and PW14 told him that he could arrange only Rs. 50,000/- which accused Shekhar agreed to accept. PW14 asked Shekhar to hand over the Razinama/Compromise Deed after signing the same. Accused Shekhar telephonically called accused SI Amit to his office. After some time accused SI Amit came to the office of accused Shekhar and PW14 handed over Rs. 50,000/- to accused Shekhar. Accused SI Amit asked them to sign the compromise deed which was prepared on 16.05.2018 and they signed the same. Subsequently, the Vigilance Team entered office of accused Shekhar and asked the complainant to go outside and the door was bolted from inside. After some time Vigilance Team came downstairs alongwith accused SI Amit and Shekhar. Hence, as per the version of the complainant, he went separately to the office of accused Shekhar and denied suggestions to the contrary. He also denied suggestion regarding being accompanied by the panch witness when he went to the first floor office of accused Shekhar. He also denied that accused SI Amit reached the office and demanded and accepted an amount of Rs. 50,000/- from him. PW14 also denied that accused SI Amit asked for the remaining bribe amount to be paid in 2-4 days. He also denied that an amount of Rs. 50,000/- was also recovered from the right hand of accused SI Amit. Hence, the complainant PW14 was hostile regarding the allegation of demand and acceptance at the spot.
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 72 of 9440) PW14 identified his signatures on the pre-raid report Ex. PW14/C, seizure memos of mobile phone of accused Amit Kumar Ex PW14/D, seizure memos of mobile phone of accused Shekhar Ex PW14/E, arrest memo and personal search memo of accused Amit Kumar Ex. PW14/F and PW14/H respectively, arrest memo and personal search memo of accused Shekhar Singh Ex. PW14/G and PW14/I respectively, seizure memo of agreement Ex. PW14/J, seizure memo of his mobile phone Ex. PW8/A, seizure memo of his voice sample Ex. PW8/B, his specimen handwriting/signatures Ex. PW14/K and Ex. PW14/L, seizure memo of documents of vehicle no. HR46D5396 Ex. PW14/M, photocopy of documents of vehicle no. HR46D5396 Mark Z-4 (colly). However, in this respect he stated that he went to Vigilance Office by metro. After some time the Vigilance Team alongwith SI Amit and Shekhar reached there. At PS Vigilance, he was asked to sign on paper slips affixed on two bottles containing some liquid. One Ramesh Chand also signed the paper slips. Thereafter, PW14 and Ramesh Chand were asked to sign some blank papers. He was asked to leave the Vigilance Office at about 01.00 am in the intervening night of 23/24.05.2018 and was instructed to reach Tis Hazari Court on the next afternoon where he met Insp. Dharamvir Gautam, who directed him to tell the Ld. Judge whatever was written in his complaint. The complainant also identified his signatures on his statement recorded u/s 164 Cr.P.C. Ex. PW14/A. Accordingly, though the complainant has admitted his signatures on the aforesaid documents including the pre-raid report Ex. PW14/C, CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 73 of 94 however, he stated that his signatures were obtained on certain blank papers at PS Vigilance.
41) Perusal of testimony of PW16 Ashok of Anshu Roadlines also reveals that he denied any allegations of demand of bribe by accused SI Amit and stated that a settlement was arrived at between complainant and accused Shekhar for Rs. 80,000/- to be paid by Surender to accused Shekhar. It is not stated by him that he was present at the time when the settlement was entered into, hence his testimony in that regard is hearsay. PW16 was also cross-examined in detail by the Ld. Addl.P.P. for the State but he denied all the allegations against accused persons including allegations regarding demand of bribe. PW16 also failed to identify accused SI Amit before the court.
42) It is also the case of prosecution that on 16.05.2018 accused SI Amit visited Bahadurgarh alongwith complainant and PW18 HC Bhagirath. It is alleged that accused SI Amit got the goods of accused Shekhar, which were loaded in the truck of complainant, recovered from Bahadurgarh. It is noticeable from a perusal of complaint Ex. PW6/A that there is no allegation regarding the incident dated 16.05.2018 in the complaint Ex. PW6/A made by the complainant. Additionally the complainant PW14 has not deposed regarding the said incident dated 16.05.2018 before the court. The allegations regarding the said incident as contained in the statement of the complainant u/s 164 Cr.P.C. were not put to the complainant during his cross- examination by ld. Addl.P.P. for the State and he was not CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 74 of 94 confronted with those allegations. Hence, the incident of 16.05.2018 remained unsubstantiated through the testimony of PW14 i.e. the complainant.
43) The prosecution also examined PW16 Ashok Kumar of Anshu Roadlines as regards the incident of 16.05.2018 when SI Amit alongwith accused Shekhar, Surender, driver Jasbir, Const. Bhagirath and other persons reached Bahadurgarh and the truck containing the goods i.e. liquor was recovered at the instance of the complainant and was brought at the office of accused Shekhar.
44) In his examination-in-chief PW16 deposed that after about one week of the goods leaving for Chennai, he received the call from Shekhar who told him that only half of the goods had reached Chennai. At this PW16 called Surender i.e. the complainant who told him that the vehicle got overloaded and therefore some goods were unloaded. PW16 conveyed that message to Shekhar and also told him that the unloaded goods were at Bahadurgarh. PW16 deposed that thereafter Shekhar alongwith his staff went to the address given by Surender at Bahadurgarh and collected the un-dispatched goods. Shekhar told PW16 that Rs. One Lakh had to be given to the party at Chennai, whose entire goods were not transported. Shekhar talked to Surender but Surender refused to give Rs. One Lakh.
45) However, PW16 denied the prosecution version in respect of incident of 16.05.2018 which was put to him during CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 75 of 94 his cross-examination by ld. Addl.P.P. for the State. PW16 denied that in the evening of 16.05.2018, SI Amit alongwith Shekhar, Surender, driver Jasbir alongwith other persons at the instance of Surender reached at Bahadurgarh in two private vehicles or that one truck which was parked in front of a hotel loaded with liquor was recovered at the instance of Surender or that Ct. Bhagirath also accompanied SI Amit Kumar to Bahadurgarh. PW16 further denied that the truck no. HR-55Q- 6228 alongwith loaded liquor was brought at the office of Shekhar alongwith them. Hence, PW16 denied the factum of recovery of the goods contained in truck bearing no. HR-55Q- 6228 from Bahadurgarh by accused Shekhar with the assistance of accused SI Amit Kumar, even though he stated that the said goods were taken by accused Shekhar alongwith his staff at the address given by Surender at Bahadurgarh and Shekhar had collected the un-dispatched goods. Hence, no incriminating role is attributed to accused Shekhar or SI Amit Kumar in collecting the goods of accused Shekhar from Bahadurgarh.
46) The prosecution has also examined HC Bhagirath PW18 regarding the said incident dated 16.05.2018. From the testimony of PW18 it emerges that on 16.05.2018 he had accompanied SI Amit to Bahadurgarh where one truck bearing no. HR-55Q-6228 was parked outside a restaurant. PW18 stated that talks were going on between public persons and SI Amit Kumar from which he concluded that there was a quarrel between two transporters and that the truck contained boxes of liquor. Subsequently, they left and the truck proceeded for Delhi.
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 76 of 94Hence, PW18 did not reveal the identity of the public persons he met at Bahadurgarh. He did not even state in his examination-in- chief that he enquired about the identities of those persons or that he was aware of their identities. PW18, HC Bhagirath, who is a police official, merely affirmed the suggestion of Ld. Addl.P.P. for the State that it was revealed to him at Bahadurgarh that the goods were of Shekhar who got it sent to Chennai and they were detained by one Surender due to some dispute between them, however, the manner in which he came to know about the said fact is not deposed by him as to whether he heard the persons present there talking about it or through accused SI Amit or someone else would be thus in the nature of hearsay. Additionally accused Shekhar was not got identified by PW18 while recording of his testimony.
47) From the examination-in-chief of PW18 it is not manifest as to whether the incident of 16.05.2018 as mentioned therein is the same incident whereby the goods of accused Shekhar were recovered by him or if it was another incident and PW18 has deposed that it appeared to be a quarrel between two transporters, however, in the present case, only the complainant was the transporter. Even the truck bearing no. HR-55Q-6228 has not been indicated to be connected with the complainant in any manner. Moreover, PW18 in his cross-examination also deposed that he was on patrolling duty from 07.00 pm to 12 mid- night on 16.05.2018 and vide DD No. 54B Ex. PW18/DB he left PS Punjabi Bagh at 05.45 pm. He also stated that arms were CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 77 of 94 issued to him as he was on patrolling duty. He had not taken any permission for outstation from area ACP as it was the duty of IO and he did not enquire the accused about the same. PW18 had not informed the Duty Officer regarding his visit to Bahadurgarh with accused SI Amit. PW18 came to know for the first time that accused SI Amit had gone to Bahadurgarh unofficially. As such there is no documentary evidence to corroborate the testimony of PW18 HC Bhagirath that he had visited Bahadurgarh on 16.05.2018. Moreover, from his testimony it is not discernible that on 16.05.2018, it was the truck containing goods of accused Shekhar, that was got recovered at the instance of complainant Surender by accused SI Amit from Bahadurgarh. Hence, the incident of 16.05.2018 is not proved through the testimony of PW18/HC Bhagirath, who was a police official and had merely affirmed the suggestion regarding dispute between accused Shekhar and complainant and even otherwise his testimony remains uncorroborated.
48) Now coming to the testimony of PW 24 Insp. Ajay, the Raid Officer, who deposed regarding the fact that the complainant wrote the complaint in Hindi and signed the same on 23.05.2018 in the presence of panch witness, who went through the complaint and also signed it. PW24 also deposed regarding the pre-raid proceedings, handing over of Rs. 50,000/- to him by the complainant, application of Phenolphthalein Powder on the GC notes, demonstration of the specialty of Phenolphthalein powder to the panch witness and complainant, CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 78 of 94 and the directions to the complainant and panch witness as to how to proceed during raid. Pertinently, PW24 deposed that a raiding team was constituted comprising HC Rakesh, HC Tarachand, HC Kanwar Singh and they left PS Vigilance at around 12.45 pm in a government vehicle alongwith the raiding team, complainant, panch witness and the driver for PS Punjabi Bagh.
49) Perusal of testimony of HC Rakesh who was examined as PW25, who is stated to be a member of raiding team by PW24-Raid Officer, reveals that PW25 has not made any statement that he had joined the raid proceedings on 23.05.2018 and he has deposed regarding the fact that on 24.04.2019 and 26.04.2019 he went to FSL Rohini and brought the FSL result and deposited the sealed exhibits with the MHC(M). Additionally, perusal of testimony of PW21 ASI Tara Chand, who is also a raiding team member according to PW24-Raid Officer, reveals that PW21 had joined the investigation on 20.12.2018, when he had collected the documents vide RC no. 26/21/18 and deposited them at FSL Rohini. Hence, neither PW25 HC Rakesh nor PW21 HC Tara Chand have deposed regarding joining of the raid proceedings on 23.05.2018. Moreover, there is no statement on record of PW25 or PW21 recorded by the IO u/s 161 Cr.P.C. on 23.05.2018 or immediately thereafter or otherwise in context of the raid proceedings. Accordingly, the assertion of RO/PW24 Insp. Ajay Kumar that HC Tara Chand and HC Rakesh Kumar were part of raiding team CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 79 of 94 is not established on record.
50) Pertinently, it is also deposed by PW24 Raid Officer that HC Kanwar Singh was a member of raiding team and PW24 handed over the Tehrir to HC Kanwar Singh with directions to get the case registered at PS Vigilance. However, HC Kanwar Singh has not been arrayed as a witness to show that he had joined the investigation and had infact taken the rukka to Police Station Vigilance from the spot. HC Kanwar Singh was a material witness, to prove the raid proceedings and registration of FIR on the basis of rukka prepared by PW24.
51) It is also noteworthy that none of the documents including pre-raid report Ex. PW14/C, seizure memo of GC notes Ex. PW6/B and seizure memo of hand wash and sample seal Ex. PW6/C bear the signatures of HC Rakesh or HC Tarachand or HC Kanwar Singh to indicate that they had joined the raid proceedings. Hence, in view of the aforesaid, serious doubts are raised over the veracity of the raid proceedings. In fact it has been deposed by the complainant PW14 that on 23.05.2018 he had written the complaint at Vigilance office on the dictation of the Vigilance official and thereafter he was asked to meet them outside PS Punjabi Bagh after 2.00 pm and he reached there by Metro Train. He also deposed that at about 02.00 pm the Vigilance Officials reached PS Punjabi Bagh in a van. Hence, the facts regarding raid proceedings as revealed in the testimony of the purported members of the raiding team CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 80 of 94 appear to be in line with the testimony of PW14 that no pre-raid proceedings were carried out at PS Vigilance.
52) PW6 is the panch witness Ramesh Chandra Kesharwani. Perusal of the testimony of PW6 recorded on
30.11.2021 reveals that he reached the Vigilance office at 10.00 am around two years back from the date of recording of his testimony where he met the complainant through one SI, who briefed PW6 about the grievance and his complaint. He stated that the complainant had brought an amount of Rs. 50,000/- as bribe money and the SI applied some chemical on the currency notes, which were handed over to the complainant for giving the same to the accused and nothing else was done prior to that and thus PW6 did not initially depose regarding pre-raid proceedings on 30.11.2021. Further examination-in-chief of PW6 was deferred on that day and thereafter he was examined on 09.05.2022 where he described the pre-raid proceedings in detail about noting down the serial number of the GC notes amounting to Rs. 50,000/-, explaining the specialty of Phenolphthalein powder, washing of hands, money to be handed over to the accused only on demand, the manner in which the signal was to be given to the raiding party etc. In his cross-examination by the accused, PW6 deposed that his statement was firstly recorded in court on 30.11.2021, when he had stated true facts which were in his knowledge. On 30.11.2021 after part recording of his testimony, he obtained copy of his statement given to the police and took it with him. He affirmed that on 09.05.2022 and CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 81 of 94 23.11.2022 his previous statements recorded by the police were read over to him before coming to the witness box. He denied that he was a tutored witness or that he had given a parrot like statement on 09.05.2022 and 23.11.2022 during his examination- in-chief. He denied that he admitted various facts during his cross-examination on behalf of the State, in a mechanical manner. He denied that no such proceedings like applying of powder on notes, noting down the serial number of the currency notes and demonstration etc. had taken place in his presence or that for this reason only he had stated in his examination-in-chief that nothing else was done prior to handing over of notes to the complainant. He denied that he had deposed falsely about pre- trap proceedings as he was tutored to say so.
53) Accordingly, from the reading of the testimony of PW6 it is revealed that on 30.11.2021 when he was examined-in- chief, initially he categorically stated that nothing else was done before powder smeared notes were handed over to the complainant. Further examination-in-chief of PW6 was deferred and thereafter he was examined on 09.05.2022 where he described in detail the pre-raid proceedings, which were again deferred as the witness was not feeling well. On 23.11.2022 the exhibits were put to the witness and he was also cross-examined by ld. Addl.P.P. for the State and ld. Counsel for the accused persons. The testimony of PW6 has to be read in the context of the casual manner in which the raid was conducted, where even the raiding party was not properly constituted and in fact the CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 82 of 94 purported raiding team members also did not depose about taking part in the raid. Hence, the testimony of PW6 has to be read with a pinch of salt in the backdrop of the nature of the raid proceedings.
54) PW6 has deposed regarding the pre-raid proceedings and the fact that the raiding team departed for PS Punjabi Bagh where the complainant received a call from Ashok, who told the complainant to call accused Shekhar as accused SI Amit had made several calls. Thereafter the complainant contacted accused Shekhar, who told the complainant to come to his office. Thereafter the raiding team left for the office of accused Shekhar at Rampura. The complainant PW14 has also deposed regarding the fact that on the date of raid at about 02.00 pm he was asked by the Vigilance Officials to make a call on the mobile phone of SI Amit and when he called SI Amit, he told the complainant not to talk to him and to talk to Shekhar. When the complainant called accused Shekhar, Shekhar asked him to come to his office. Thereafter he went to the office of accused Shekhar in an e- rickshaw. Hence, the complainant PW14 did not mention about any call having been received from Ashok regarding which the panch witness has deposed and PW14 denied the suggestion regarding receiving any call from Ashok. PW16 also denied the suggestion that on 23.05.2018 he received a call from Shekhar, who was asking about the whereabouts of Surender/complainant as Surender had to pay Rs. 2,20,000/- to SI Amit on that day. No suggestion was put to PW16 Ashok by the State that any call was CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 83 of 94 made by Ashok to the complainant on 23.05.2018 asking the complainant to call accused Shekhar. Hence, the statement of PW6/panch witness that a call was made by Ashok to Surender at the time of raid is not proved. Moreover, mobile number 8178569258 that has been ascribed by the prosecution to Ashok, however, as per CAF Ex. PW26/E of the said mobile number, it is registered in the name of one Ranjit Chaudhary. There is no statement of Ranjit Chaudhary to show that he had handed over the said mobile number to Ashok.
55) As discussed, as per the testimony of PW14 he had handed over cash amount of Rs. 50,000/- to accused Shekhar in pursuance of the compromise Ex. PW14/B entered into between him and accused Shekhar, which was prepared by accused SI Amit on 16.05.2018 and the same was signed on 23.05.2018. In view of the FSL result Ex. PW20/A, the portion containing the statement of accused Shekhar in the compromise Ex. PW14/B was in the handwriting of accused Amit and the said compromise bore the signatures dated 23.05.2018 of complainant Surender and accused Shekhar.
56) On the aspect of demand, PW6 i.e. panch witness Ramesh Chand deposed that after Surender and PW6 reached the office of Shekhar, complainant made a call to Shekhar and asked him to come . After 5 minutes Shekhar reached there and he made a call to accused SI Amit, who reached there in 15 minutes. PW6 stated that accused SI Amit wrote a compromise type statement in his handwriting. However, when the said CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 84 of 94 compromise/razinama Ex. PW14/B was shown to PW6 before the court, he expressed his ignorance about the same. PW6 further deposed that thereafter Shekhar told Surender "Jo Laaye Ho Inko De Do". Thereafter the complainant Surender gave powder smeared GC notes to accused SI Amit. Accused Amit kept them in his right hand and thereafter PW6 came down 2-3 steps and gave a pre-determined signal to the raiding party.
57) Hence, as per the testimony of PW6 the powder smeared GC notes were handed over by the complainant to accused SI Amit. Pertinently, PW6 deposed that SI Amit Kumar wrote a compromise type statement in his handwriting in his presence. As per the prosecution version the said compromise was signed by the complainant and accused Shekhar on 23.05.2018, however, there is no mention about signing of the compromise by the parties in the testimony of PW6. The said compromise Ex. PW14/B bears the signatures dated 23.05.2018 of both the complainant and accused Shekhar. Moreover, PW6 was also unable to identify the said compromise when it was shown to him before the court and he claimed ignorance of the said document, which formed basis of the transaction conducted at the spot. In these circumstances and also in view of the perfunctory manner in which the raid proceedings were conducted, the testimony of PW6 is not free from doubt and does not inspire confidence to base a finding of guilt thereupon.
58) Moreover, the onus is upon the prosecution to establish demand and acceptance of illegal gratification which is CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 85 of 94 a condition precedent for constituting the offences with which the accused persons were charged with. The complainant has turned hostile upon the allegations of demand. The panch witness PW6 has stated in his examination-in-chief that Shekhar asked Surender "Jo Laaye Ho Inko De Do" and thereafter the complainant gave powder smeared GC notes to accused SI Amit, who kept them in his right hand. In his cross-examination by ld. Addl.P.P. for the State the panch witness PW6 has merely affirmed the suggestion of Ld. Addl.P.P. for the State that accused SI Amit Kumar had demanded bribe of Rs. 50,000/- from the complainant and accepted the same from him. PW6 further affirmed the suggestion that accused SI Amit had asked the complainant regarding the remaining bribe which was to be given by the complainant and the complainant had replied that the same would be given within 2-4 days. In his examination-in- chief PW6 has specifically stated that accused Shekhar asked the complainant to give what he had brought and thereafter the powder smeared GC notes were handed over by the complainant to accused SI Amit. Merely by use of words "Jo Laaye Ho Inko De Do", a demand of bribe cannot be inferred. The complainant in his testimony has deposed regarding the background in which the said money was handed over i.e. in pursuance of a compromise arrived at between him and accused Shekhar and not upon any demand of bribe by accused SI Amit. The words "Jo Laaye Ho Inko De Do" pursuant to which money was handed over, can be merely related to handing over of money and nothing further than that and hence, no demand can be inferred by use of the said words. Hence, there is no oral evidence of CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 86 of 94 demand of illegal gratification by accused SI Amit Kumar or that he had conspired with accused Shekhar to commit the offence under section 7/13(1)(d) of PC Act.
59) The prosecution has also relied upon the voice recording of the complainant and the accused persons. It may be noted that during investigation the mobile phones of accused Amit Kumar was seized vide seizure memo Ex. PW14/D on 23.05.2018. As per the seizure memo Ex. PW14/D, the two mobile phones of accused Amit Kumar were taken in police possession and they were the following :
i) Apple I phone, cream and golden colour, having Airtel SIM No. 9911456545 (CAF Ex. PW9/A) and
ii) Vivo phone of white and golden colour having a SIM which was not disclosed.
The identity of the above mobile phones was not disputed by accused Amit Kumar as they were released to him.
60) Two mobile phones were recovered from accused Shekhar and seized vide seizure memo Ex. PW14/E and the details whereof are as follows:
i) Samsung Android mobile phone (Ex. P-12) of metallic blue colour having dual SIM numbers 9910806520 (Airtel) (CAF Ex. PW9/C) and 8368464557 (Jio) (CAF Ex. PW26/D) and
ii) Samsung Duos mobile phone (Ex. P-13) of golden colour having Vodafone SIM bearing no. 9311005650 (CAF Ex.
PW11/A).
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 87 of 9461) Subsequently, on 25.05.2018 the IO seized mobile phone of the complainant of make Gionee (Ex. P-9) of light golden colour and having two SIM numbers 8168961034 (Jio) and 9813878402 (Vodafone) (CAF Ex. PW11/C), vide seizure memo Ex. PW8/A.
62) The aforesaid mobile phones of accused Amit and Shekhar were sent to FSL for extracting the data i.e. audio and video files created between 16.05.2018 to 23.05.2018. As per the FSL result Ex. PW23/A dated 28.02.2019, the data i.e. audio and video files created between 16.05.2018 to 23.05.2018 was retrieved from exhibit MP3 i.e. one mobile phone make Samsung containing two SIM cards (Jio, Airtel) i.e. mobile phone of accused Shekhar and the retrieved data was enclosed in one CD mark CD-1 with folder named 'DATA OF MP3' which was sealed with the seal of 'DOC FSL' and the same was forwarded to physics division for further examination. A certificate u/s 65B of I.E.Act Ex. PW23/B in support of CD1 was also enclosed with the report.
63) No audio and video files could be retrieved from other mobile phones or from the SIM cards in those mobile phones or from the memory card contained in the Vivo mobile phone. The Apple I phone of accused Amit Kumar and the Gionee mobile phone of the complainant were found to be password protected and hence, they were returned unexamined.
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 88 of 9464) During recording of testimony of complainant PW14, CD1 which was prepared by FSL, was played before the court and after listening to the contents of CD1, PW14 stated that it was the same conversation that took place between him and accused Shekhar on mobile phone. CD1 is Ex. PW22/Article-1.
65) It may also be noted that during investigation, on 25.05.2018 IO PW29 seized the mobile phone of the complainant make Gionee Ex. P-9 vide seizure memo Ex. PW8/A. It is deposed by the IO/PW29 that the complainant handed over his mobile phone containing call recording of conversation between him, accused SI Amit Kumar, Shekhar and one another person namely Ashok, owner of M/s Anshu Roadlines. PW29 went to the IT Centre of PS Vigilance situated in the premises of PS Vigilance and after hearing the relevant conversations, the same were transferred in the office computer and thereafter CD was prepared by him. The CD was kept on file for day-to-day investigation. The said CD i.e. CD-R Ex.PW14/Article X on which date 25.05.2018 was mentioned and the same was put to the complainant PW14 during recording of his testimony and the complainant after hearing the contents of the CD stated that same were the audio recordings of his mobile phone Ex. P-9. The said CD-R was not put to the IO/PW29 or PW8 Ct. Ankush during recording of their testimony and there is no certificate u/s 65B of I.E.Act in support of the said CD-R and hence, the same is not admissible in evidence. Moreover, the said CD was never sent to FSL for examination and evaluation of its data.
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 89 of 9466) During investigation, the voice samples of the complainant, Ashok, accused Shekhar and accused Amit were recorded at FSL,Rohini. The voice samples and the CD1 ( Ex. PW22/Article-1) having data retrieved from MP3 i.e. mobile phone of accused Shekhar were sent to FSL for their evaluation and analysis. As per the FSL result Ex. PW22/A on auditory analysis of the relevant audio files in CD marked exhibit CD1 ( Ex. PW22/Article-1) there was no indication of any form of alteration. It was opined that the voice of speaker marked exhibit Q1 and exhibit S1 were similar voice of same person i.e. Surender Singh. It was further opined that the voice of speaker marked exhibit Q3 and exhibit S3 are possible voice of same person i.e. Shekhar Kumar @ Shekhar Singh.
67) Accordingly, no alteration was indicated in CD1 (Ex. PW22/Article-1), however, only the voice of the complainant in the recordings was found to be similar to his sample voice and the voice of accused Shekhar was stated to be only his possible voice. Additionally, no opinion was given regarding voice of accused Amit Kumar or Ashok. Upon hearing the contents of CD1 (Ex. PW22/Article-1) it emerges that it contains conversation between accused Shekhar and complainant, however it does not contain any conversation of demand of bribe. The said conversation between accused Shekhar and complainant (mobile no. 9910806520) which is also a part of the transcript Ex. PW29/DE and though there is a discussion regarding sorting out a matter and arrangement in that regard. However, a demand of bribe is not discernible from the CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 90 of 94 same.
68) It is also relevant to note that the aforementioned transcript Ex. PW29/DE stated to be of the concerned voice calls, was placed on record by Insp. Virender Singh, SHO Vigilance, on 23.11.2019. IO/PW29 Insp. Dharamvir Gautam did not depose regarding preparation of transcript by him in his examination-in-chief. In his cross-examination he deposed that rough transcription was prepared by him vide Ex. PW29/DE. He affirmed that the said transcription was undated and was not counter signed by the complainant or panch witness. He denied that Ex. PW29/DE was not correct and was fabricated. Moreover, as per the testimony of IO/PW29 Insp. Dharamvir Gautam, he had prepared a CD Ex. PW14/Article-X from the mobile phone of the complainant containing audio files of the conversation with accused SI Amit Kumar, accused Shekhar and Ashok. As discussed, there is no certificate u/s 65B of I.E.Act in support of the said CD i.e. Ex. PW14/Article-X. It is stated by PW29 himself that the transcript Ex. PW29/DE was a draft transcript which was typed by him. It is to be noted that the said transcript was not put to the complainant PW14 during his examination. There is no panch witness of preparation of the transcript. Moreover, even IO/PW29 did not depose about preparation of the transcript by him in his examination-in-chief and only stated that he had prepared a rough transcript Ex. PW29/DE. Accordingly, the transcript Ex. PW29/DE does not stand proved.
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 91 of 9469) Accordingly, there is no oral or electronic evidence to prove demand by accused SI Amit Kumar in conspiracy with accused Shekhar Kumar. However, as per the seizure memo Ex. PW6/B the GC notes were recovered from the hands of accused Amit Kumar. The seizure memo of the handwash and the sample seal is Ex. PW6/C. As per the FSL result Ex. PW10/A the sealed glass bottle exhibit RHW-1 i.e. right hand wash of accused SI Amit contained Phenolphthalein and Sodium Carbonate. In this regard, it is deposed by the complainant PW14 that he had handed over Rs. 50,000/- to accused Shekhar at his office in pursuance of settlement arrived at with him. In this context PW6 panch witness deposed that the said amount was handed over to accused SI Amit. It is deposed by PW14 in his cross- examination by ld. Counsel for the accused that when he met accused Amit in the office of accused Shekhar, he greeted him and shook hands with him, thereby indicating that Phenolphthalein Powder from his hand could have rubbed on to the hand of accused Amit, thereby resulting in pink colour hand- wash of accused Amit in Sodium Carbonate solution. Be that as it may, the prosecution has not been able to establish on record any demand for illegal gratification by the accused persons. It is settled law that mere receipt of money by the accused in absence of proof of demand is not sufficient to make out a case u/s 7 PC Act.
70) In the case of P. Satyanarayana Murthy AIR 2015 SC 3549, it was held by the Hon'ble Supreme Court as under:
"21. In State of Kerala and Anr. v. C.P. Rao, CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 92 of 94 this Court, reiterating its earlier dictum, vis-à- vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
22. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence Under Sections 7 as well as 13(1)(d)(i) & (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence Under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence Under Section 7 and not to those Under Section 13(1)(d)(i) &
(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption Under Section 20 of the Act would also not arise.
23. The proof of demand of illegal gratification, thus, is the gravamen of the offence Under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 93 of 94 under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence Under Sections 7 or 13 of the Act would not entail his conviction thereunder." (Emphasis supplied)
71) Accordingly, for the purpose of Section 7 of PC Act there has to be a specific demand of illegal gratification and mere acceptance or handing over of money would not suffice. It is only if the factum of demand of gratification and acceptance thereof is proved that presumption under section 20 of PC Act can be invoked by the Court to presume that the demand was for a motive or reward for doing any official act. In the present case the prosecution has not been able to establish demand of illegal gratification by the accused persons and in absence thereof mere acceptance is not sufficient to hold the accused persons guilty of the charged offences.
72) In view of foregoing discussion, the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Accordingly, accused Amit Kumar and Shekhar Kumar @ Shekhar Singh are given benefit of doubt and they are acquitted of the charged offences. Their bail bond stands cancelled and surety stands discharged.
73) File be consigned to Record Room after due
compliance. DEEPALI Digitally signed by
DEEPALI SHARMA
SHARMA Date: 2024.12.24
16:20:22 +0530
Announced in the open Court ( Deepali Sharma )
on 24 December, 2024
th
Special Judge (PC Act) (ACB-01)
Rouse Avenue Courts Complex
New Delhi
CC No. 335/2019 FIR No. 05/2018 , PS Vigilance, State vs. SI Amit Kumar & Anr. Page 94 of 94