Delhi District Court
Cbi vs . Avinash @ Avinash Kumar on 9 October, 2012
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IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No. 40/08 RC : 46(A)/94
PS :CBI/ACB/ND
U/s : 7 & 13(1) (d) of P.C. Act
CBI Vs. Avinash @ Avinash Kumar
S/o. Late Sh. Hari Chand,
R/o. 339, Gali No. 6, Shankar Marg,
Mandawali, Fazalpur,
Delhi110 092.
Date of Institution : 20.03.2002
Judgment Reserved : 06.10.2012
Judgment Delivered : 09.10.2012
J U D G M E N T
1. CBI filed the present charge sheet against the accused Avinash Kumar, Scientific Assistant, National Test House. In brief case against the accused as per charge sheet is that Mr. R.S.Guleria, Proprietor M/s Suntex Enterprises was authorized by M/s Bharat CC No. CBI Vs. Avinash pg 1 of 58 2 Engineering Company to look after their interest at Regional Test Center, Okhla and National Test House at Ghaziabad on their behalf relating to testing of PVC Cables. Cables of M/s Bharat Engineering Company had been sent by DGS&D to National Test House, Ghaziabad for various types of test, as per IS:1554(pt.I). Complainant alleged that accused had demanded Rs. 7500/ for favouring the party in test report.
2. On 16.7.1994 complainant gave a complaint to CBI at their office. Complaint revealed that accused had been contacting him for a few days prior to 16.7.1994 and was demanding Rs. 7500/ as bribe from M/s Bharat Engineering Co. and told him that he could keep Rs. 2500/ for himself also. Complainant arranged Rs.5000/. Since he did not carry the said sum to office of CBI and the same was lying at his office, he went to his office alongwith trap team. So pre trap proceedings were completed at the office of the complainant. Complainant produced 100 GC notes of Rs. 50/ each. Shadow witness Sh. Avtar Singh was directed to over hear the conversation CC No. CBI Vs. Avinash pg 2 of 58 3 between complainant and the accused and also watch transaction of bribe. He was further directed to give signal to the trap party by wiping his hands on his pagdi. Complainant was directed to dial phone no. 301612 of the accused. The conversation was tape recorded. The cassette was replayed and the original was sealed and signatures of witnesses were obtained thereon.
3. The trap party left the office of the complainant at 6.30 pm and reached near flat of the accused at Mandir Marg. Accused opened the door upon knocking. Shortly thereafter Sh. Avtar Singh gave the signal and raiding party rushed inside and caught the accused by his wrists. The GC notes were recovered from the bed. They had been kept in an envelop. Solution of sodium carbonate was prepared and his fingers were dipped therein of each hands separately. In another solution the envelope was washed. All the three solutions turned pink. They were transferred to clean glass bottles and marked as RHW, LHW and PW. Other post trap formalities were completed and the bribe money was seized. It was prayed that accused be summoned, CC No. CBI Vs. Avinash pg 3 of 58 4 tried and punished for the offences committed.
4. After accused appeared in the Court, my Ld. Predecessor framed the following charge against him:
" That you while being employed as a Scientific Assistant in National Test house, Ghaziabad, and as such a public servant, on some days prior to 16.7.94, demanded illegal gratification of Rs. 7500/ from one R.S. Guleria, representative of M/s. Bharat Engineering Company. G.T. Karnal Road, New Delhi, as a motive or reward for giving positive report in respect of sample cables submitted by M/s. Bharat Engg. Co. with DGS&D from where those samples were sent to National Test House, Ghaziabad for testing, and thereby committed an offence punishable under section 7 Prevention of Corruption Act, CC No. CBI Vs. Avinash pg 4 of 58 5 1988, and within my cognizance.
Secondly, that on 16.7.94, at your house no. J11/711, Mandir Marg, New Delhi, at about 7.15 pm. being public servant employed as aforesaid by corrupt or illegal means or by otherwise abusing your position as such public servant, obtained Rs. 5000/ from the complainant R.S. Guleria and thereby committed an offence of criminal misconduct as specified under section 13(1)(d) and punishable u/s 13(2) Prevention of corruption Act, 1988, and within my cognizance."
5. Accused did not plead guilty and claimed trial. CBI examined nine witnesses in support of its case, while accused examined seven witnesses in his defence.
6. PW1 was Sh. Atul Krishna Dutta. He deposed that on 4.3.02, CC No. CBI Vs. Avinash pg 5 of 58 6 he was posted as Director General, Alipur, Calcutta in National Test House (wrongly typed as National Guest House). He deposed further that he was competent to remove the accused who was working as Scientific Assistant. He had passed sanction order Ex. PW1/A after going through statement of witnesses, FIR, CFSL report etc. Upon being cross examined, he admitted that Ex. PW1/DA was inter lab slip file no. DGS&D/E/14 pertaining to sample no. D/E/19. He claimed that he was not aware that test report had already been given on 28.6.94. He admitted that he did not possess any legal qualification and went through advise of Vigilance Officer of National Test House and Dy. Director Administration, National Test House. He denied the suggestion that he had granted sanction for prosecution mechanically without application of mind.
7. The second witness to be examined by the prosecution was complainant R.S. Guleria. He committed few flip flops after entering the witness box. In his testimony dt. 30.5.05, he claimed that he was Proprietor of M/s Suntex Enterprises and was also doing liaison work CC No. CBI Vs. Avinash pg 6 of 58 7 for many companies but was not doing any liaison work for M/s Bharat Engineering Co. He could not remember if he was given any authorization letter by M/s Bharat Engineering Co. to look after their work in Government departments. He claimed that the complaint dt. 16.7.94 was on his letter head and in his own handwriting and also contained his signatures. He had filed anonymous complaint with CBI against various agencies which were responsible for maintaining quality and standard. He wanted to break the nexus between testing agencies and suppliers who were supplying sub standard goods. The facts mentioned in complaint Ex. PW2/A were according to the circumstances prevailing in those days. He then claimed that he could not say if the complaint is true or false. The handing over memo Ex. PW2/B and annexure Ex. PW2/C and memo Ex. PW2/D were signed by him.
8. He further claimed that he could not recollect having seen accused earlier. On his complaint an employee of National Test House was arrested in his presence after he had accepted money CC No. CBI Vs. Avinash pg 7 of 58 8 from him for manipulating test results. He did not remember the company to which the cables belonged. He had telephonic conversations in past with that individual but met him for the first time on the day he was arrested. Remaining examination of the complainant was deferred and he again entered the witness box after a gap of almost four years on 27.2.09. In his subsequent testimony, he claimed that he had an office at Karampura and he was a scientist. He remained as Chairman of All India Cable Conductor manufacturer of India (Technical). He tried to expose malpractices during that period. He claimed that he received telephone call from the accused, who asked him if he knew M/s Bharat Engineering Co. He told the accused that he did not know them personally but by virtue of office held by him, he could come to know about them. He had good relations with many honest CBI officers and informed them about the call received by him. He had also recorded the conversation between him and the accused. On 16.4.94 at about 3.00 or 4.00 pm, 3 or 4 persons had come to his office at Karampura. Formal complaint Ex. PW2/A was taken from him. He handed over GC notes to them of Rs.
CC No. CBI Vs. Avinash pg 8 of 58
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5000/ on which some powder was applied. There were two Sikh gentleman independent witnesses, whose name he could not remember. Accused in his telephone call had told him that samples of M/s Bharat Engineering Co. were failing and if he (complainant) wanted them to pass, he should get some money from M/s Bharat Engineering. There were 3 or 4 tests and demand was made for each test. He could not remember the exact figure of the money so demanded.
9. The team then reached Mandir Marg as accused had invited him at his residence. The witness claimed further that one independent witness was instructed to remain with him and give pre assigned signal by keeping his hand on the turban and the witness was to introduce himself as Manager of M/s Bharat Engineering Co. He alongwith independent witness reached flat of the accused and accused met them. Brother and children of the accused were present in the house who were asked to go. Accused enquired about the independent witness and he was told that he was Manager of M/s CC No. CBI Vs. Avinash pg 9 of 58 10 Bharat Engineering Co. To avoid suspicion he started negotiating with the accused. Accused agreed to accept Rs. 5000/ then and remaining amount lateron. GC notes which were in an envelope were extended towards the accused, who accepted them. He then asked the accused to count the GC notes with a view to get his hands touch the GC notes. Accused did so. Independent witness then gave the signal and within seconds CBI team reached the spot and apprehended the accused. Thereafter hands of the accused were washed and the solution turned pink. The solution was transferred to two bottles. Recovery memo Ex. PW2/E contained his signatures on all the four sheets. GC notes produced in the court Ex. P1 to P100 were the same which had been handed over in the envelope Mark X. Cassette Ex P2 was played in which voice of complainant and accused had been recorded prior to 16.7.94. Thereafter another cassette P4 was played which complainant identified as his voice and that of accused. Ex. P6 was transcription of the conversation. Further examination of the witness was deferred as transcription of pre trap conversation had not been provided to the accused.
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Thereafter complainant entered the witness box on 12.8.10. Complainant was shown copy of the letter Mark X. After reading it, complainant claimed that he had received the letter 23 days before the raid alongwith Rs. 5000/. It had been left at his residence and it authorized him to look after government department works including National Test House. The job was to get sample cleared as they were failing in the laboratory. Remaining examination of the witness was again deferred as Ld. PP required assistance of IO. The witness then entered the witness box on 3.01.2011. He deposed that in second week of July 1994, accused had contacted him on his telephone. He did not know the accused earlier. Accused introduced himself as Scientist in National Test House. He told him that they had received samples of cables from M/s Bharat Engineering Co. and they were failing in the test. He had recorded the calls since he felt that they were against interest of the country. Letter Mark X purported to have signatures of Sh. Sanjay, Manager of M/s Bharat Engineering Co.
10. In his cross examination he claimed that he had deposed CC No. CBI Vs. Avinash pg 11 of 58 12 truthfully and whatever documents he had signed were at asking of CBI and he signed them with open eyes and open mind. He had invented device to prevent death by electrocution. He had also invented medicine for various diseases and had obtained patents and certificates. Though he knew some officers of CBI, but he did not know Sh. S.K. Peshin before this case. He also knew few people in DGS&D but did not remember knowing Sh. K.L. Garg. Complaint Ex. PW2/A had been written in presence of CBI officers, but he could not remember if the same was delivered in CBI office at CGO Complex or at his own office at Karampura. He had recorded conversation with the accused 4/5 times on a single cassette. He did not remember if 16.7.94 was a Saturday, but he had received a call on the day of trap from CBI telling him that they would come to his office and so he should keep recording the conversation. On the day of raid another cassette was prepared in which independent witness had recorded their introductory voice. He further claimed that on 16.7.94, six people including independent witness had come to his office and they told him to write formal complaint Ex. PW2/A. After handing over of the CC No. CBI Vs. Avinash pg 12 of 58 13 complaint, they conducted some procedures. He had handed over authority letter of M/s Bharat Engineering Co. alongwith the complaint. Money Rs. 5000/ alongwith authority letter had been left with his wife at his house 23 days prior to 16.7.94. The authority letter had been given to get the failed sample passed. His statement had also been recorded at National Test House during course of departmental proceedings against the accused. His supplementary statement Ex. PW2/DA had also been recorded. He then admitted that he had lodged only single complaint with CBI, but had lodged complaints with other police organizations against other people. He then volunteered that accused had contacted M/s Frexton Cables regarding failure of samples of M/s Bharat Engineering Co. They refuse to mediate and told the accused to contact him (complainant) because he was Chairman of All India Cable Manufacturer Association. Certificate from National Test House was essential for M/s Bharat Engineering Co. to get order for Indo Pak border flood lighting. Representatives of DGS&D take the sample in the factory of manufacturer and seal it. One part is left in the factory, while other CC No. CBI Vs. Avinash pg 13 of 58 14 part is sent to National Test House, sometimes by the manufacturer and sometimes by DGS&D. In his further cross examination witness admitted that whenever he meets a person, he shakes hand with them and admitted as correct that he did not shake hands with the accused on the spot. He alongwith CBI team had gone in two vehicles. House of the accused was not on the ground floor. Door of his flat was already open and accused was visible from outside. Upon introduction he invited them inside. He denied the suggestion that he was extorting money from people after making complaints. He also denied the suggestion that he tried to extort money from the accused.
11. PW3 was Mr. Dwijendra Nath Roy, Scientist from National Test House, Ghaziabad. He deposed that in June 1994, he was working as Assistant Director (RPT) at National Test House, NR, Ghaziabad. Ex. PW3/A was file no. NR/DGS&D/E/94/14. It related to testing of PVC Sheathed cable. The file had been opened on 18.5.94. Thereafter an interlab slip requesting nine test parameters to be tested in RPT laboratory was received by him on 13.6.94 from Electrical laboratory.
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He identified signatures of Sh. S.B. Nand Kumar, Scientific Officer (Elect.) on note Ex. PW3/B1. After seeking clarification, he marked it to SO (RPT) on 15.6.94. SO (RPT) was Mr. Nagender Singh who has now expired. SO (RPT) conducted test and generated the data on 27.6.94. He identified handwriting and signatures of Mr. Nagender Singh. After receipt of test data, he (PW3) offered his technical remarks on note Ex. PW3/D. Subsequently the interlab slip was endorsed to Assistant Director (Electrical). RPT stands for Rubber Plastic and Textiles. Besides himself, Nagender Singh, accused also used to work with them during the period 1994. For conducting tests, file used to be alloted by him (PW3) to either of those two people. In this case it was alloted to Nagender Singh. Normally in a laboratory, scientist are free to seek assistance from their colleagues and subordinates. Both used to share the same room and used to sit side by side on separate tables. Individual register of Nagender Singh was kept in his drawer and at times was left on the working table in the laboratory.
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12. Upon being cross examined, he claimed that when he joined NTH Ghaziabad in 1991, Narender Kumar, Nagender Singh and the accused were working under him. After promotion of Narender Kumar, Nagender Singh and accused used to sit in a room jointly with individual tables side by side. This arrangement was made before 1994. He could not tell as to when the test reports were communicated to DGS&D. He admitted that after seeing concerned file of the relevant samples particular of the manufacturer firm could be determined as per embossed marking on the product. He further admitted that he did not know R.S. Guleria or M/s Bharat Engineering Co. He denied the suggestion that he was annoyed with the accused because of his hobbies of trekking and other outdoor activities and so he made adverse entry in his ACR.
13. The next witness to be examined was Sh. R. Ramakrishna. He deposed that in 1994 he was working as Dy. Director (Electrical), National Test House, Ghaziabad. File Ex. PW3/A related to PVC Sheathed Cable. DGS&D had sent a test request alongwith sample CC No. CBI Vs. Avinash pg 16 of 58 17 cable size 3 ½ x 240 sq. mm12 mtrs. to the test house for testing and report. The same was received by the sample clerk on instructions of Sh. Narenjan Shah, Dy. Director (Electrical). He identified writings and signatures of Narenjan Shah on the request letetr sent by DGS&D Ex. PW4/A. He further deposed that after receipt of the sample, file was opened. Request and sample were sent with the file to ADE on 7.6.94. The sample slip was Ex. PW3/B and contained his signatures. On 7.6.94, he marked the file to Sh. N.K. Roy ADE who inturn entrusted the sample to Sh. Nand Kumar SOE. Mr. Nand Kumar sent part of sample to Mechanical, RPT and Chemical laboratory on 9.6.94 for laboratory test. RPT passed the sample and signatures of Mr. Nagender Singh were at point C on Ex. PW3/C. The sample had also passed mechanical and chemical test. It was also passed by electrical division. The draft test certificate was prepared and put up by Sh. Nand Kumar before him on 12.7.94. He then sent the draft for typing on 12.7.94 to ADA Chandra Mohan. The witness was cross examined by Ld. PP as he was resiling from his previous statement. He admitted that his statement had been recorded by CBI, CC No. CBI Vs. Avinash pg 17 of 58 18 but he could not remember if the sample had been brought to the test house by representative of M/s Bharat Engineering Co. He also admitted that he called for the file on 20.7.94 after coming to know that accused had been trapped. Till then test certificate was not typed. The witness was cross examined by advocate for the accused wherein he claimed that he had received oral intimation about arrest of the accused and sample had been sent to RPT section on 9.6.94 and report received on 28.6.94. He could not tell if accused had ever dealt with the sample or not. He also informed the court that normally samples were brought by the private persons. He also admitted that all the four sections in the test house had passed the sample by 12.7.94. He also admitted that the cables used to bear manufacturer's marking and name.
14. CBI thereafter examined Sh. S.C. Sharma. He testified that on 11.8.04 (there is a typing error, it should be 11.8.94), he was posted as Dy. Director Incharge, National Test House, Ghaziabad. Letter dt. 11.8.94 contained his signatures. The same was Ex. PW5/A. Vide this CC No. CBI Vs. Avinash pg 18 of 58 19 letter he had forwarded DGS&D sample register Ex. PW3/A, which contained entry dt. 18.5.94 of sample no. DGS&D/E/19.
15. CBI thereafter tendered in evidence report of CFSL Ex. PA given by Mr. N.K. Prasad. Mr. Prasad suffered from paralysis and was unable to appear in the Court.
16. Inspector Mridula Shukla was a next witness to be examined by CBI. She deposed that the case was entrusted to her after investigation was complete. She obtained sanction for prosecution Ex. PW1/A and filed the charge sheet. Upon being cross examined, she claimed that she had gone through case diaries after investigation was entrusted to her. CBI had filed closure report previously and she had gone through it. She did not investigate regarding demand of bribe nor she carried out any further investigation. She also denied the suggestion that she had filed false charge sheet.
CC No. CBI Vs. Avinash pg 19 of 58
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17. Superintendent of Police Mr. S.K. Peshin was the next witness to be examined by the CBI. He claimed that he was entrusted with investigation of the case on 16.7.94 by S.P. Mr. V.S.K. Kumudi. Complaint Ex. PW2/A bore endorsement of Mr. Kumudi. He interrerogated the complainant and satisfied himself with the replies given and thereafter two independent witnesses Avtar Singh and Gursharan Singh from Lodhi hotel were called. A trap party was constituted comprising of Mr. Lohmar, Sh. A.K. Sunil, Sh. R.S. Tokas and others. A trap bag was arranged. Complainant had not brought the bribe amount with him so it was decided to conduct pre trap formalities in the office of the complainant. Memo Ex. PW2/D was in his handwriting and was signed by Avtar Singh and Gursharan Singh. They reached office of the complainant around 5.00 pm. There the cassette was played and heard. Its copy was also prepared and the original was sealed. Complainant produced Rs. 5000/. Inspector Lohmar treated the notes with phenolphthalein powder. Gursharan Singh was asked to touch the notes and on washing his fingers in solution of sodium carbonate, the solution turned pink. Personal CC No. CBI Vs. Avinash pg 20 of 58 21 search of the complainant was taken and he was directed to hand over the bribe amount at residence of accused upon his demand at J11/711, Mandir Marg, New Delhi. Avtar Singh was to act as shadow witness and over hear the conversation and watch the transaction. He was to pose as Manager of M/s Bharat Engineering Co. and give signal by touching his hands on the pagdi. An audio cassette was fixed in telephone recording device in the office of the complainant and he was asked to talk to the accused. Whatever conversation took place, got recorded in the cassette in which formal voices of both the witnesses had been recorded. The cassette was sealed and other formalities were carried out. The witness further deposed that they reached residence of the accused at about 7.00pm Complainant and Avtar Singh shadow witness were directed to go to the residence of nd the accused at 2 floor. Rest of the team members took position. Thereafter on receipt of signal, he (S.K.Peshin) alongwith rest team members rushed towards the flat. They found complainant sitting on a three seater sofa opposite accused Avinash. Bribe amount was lying on the bed on an envelope. Inspector Sunil and Tokas caught the CC No. CBI Vs. Avinash pg 21 of 58 22 accused from his both the wrists. Gurcharan Singh was directed to pick up the GC notes. Upon comparison, the number tallied. Colourless solution of sodium carbonate was prepared and accused was made to wash fingers of his both hands one by one. The solutions turned pink and they were poured into glass bottles and sealed. Envelope was also washed in another solution which too turned pink. The said solution was also poured in a bottle sealed and labeled. Personal search of the accused was conducted vide personal search memo Ex.PW7/B. Site plan was prepared. The same was Ex. PW7/C. Other formalities were completed. Accused was taken to CBI office and after interrogation, was kept in lock up of PS Vasant Vihar. He had recoded statement of complainant and independent witnesses. The case was then transferred to inspector S.K. Sinha.
18. Upon being cross examined, witness claimed that he came to know of the complainant only on the day of complaint. He had brought with him an audio cassette. He further admitted that he had not contacted owner of the firm on whose behalf complainant was acting.
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He also admitted that he had not prepared transcription Ex. P13, nor he could admit or deny its correctness. He further claimed that complainant had not brought money and had claimed that recording device was available in his office. In the pre trap conversation accused had invited complainant to his house. Site plan Ex.PW7/C had been correctly prepared. In the site plan point D indicates the main door, while 'D' indicated the spot from where the signal was given to the trap team by the witness. He denied the suggestion that no bribe money had been recovered and the same was planted by them. He further admitted that he did not seize authorization letter but had seen it on the day of trap in the CBI office. He had not examined any person in connection with the said authorization letter. He also denied the suggestion that accused was not handed over cables of Bharat Engineering for testing. He also denied having knowledge that the cables had already been tested by somebody and passed. He claimed that memo Ex.PW2/D had been prepared in CBI office and remaining documents were prepared in the office of complainant. It was decided to go to the office of the complainant because recording CC No. CBI Vs. Avinash pg 23 of 58 24 and hearing device was not available with them. Finally, he denied the suggestion that the trap was preplanned and managed by him. He also denied that to obtain credit the case was wrongly foisted on the accused.
19. The next witness to be examined by the CBI was Mr. Avtar Singh. He deposed that in 1994 he was working in Lodhi Hotel. On 16.7.94 he went to CBI office along with Gursharan Singh on instruction of HRD Manager. They met CBI officers and also complainant Mr.Guleria. They were made to read the complaint which had mention of demand of Rs.10,000/. Complainant informed the CBI officers that money was kept at his office at Karam Pura . The team then went to his office at about 5.00 p.m. The number of GC notes of Rs.5000/ were noted down. They were treated with powder and Gursharan was asked to touch them. Thereafter, his hands were washed and the solution turned pink which was thrown away. The notes were put in an envelop and kept in pocket of Mr. Guleria. Gursharan dialled telephone number of the accused and CC No. CBI Vs. Avinash pg 24 of 58 25 complainant was made to talk to the accused. Accused asked the complainant to come to his house. The conversation was recorded and the cassette was sealed. Both he and Gursharan signed on the cassette. Complainant had also produced a cassette which contained earlier conversation between him and the accused. The team then left for house of the accused at Mandir Marg. Complainant was instructed to hand over the money on specific demand made by the accused. He (PW Avtar Singh) was instructed to accompany the complainant and give signal by rubbing his turban with his hands. He was to pose as Manager of Bharat Engineering Company. Upon knocking, accused opened the door and invited them inside. Complainant introduced him (PW Avtar Singh) as Manager. Accused told complainant that all the four samples had failed and he would have to pay Rs.2500/ for each sample. On request, accused scaled down the demand to Rs.2000/ per sample. Complainant agreed to it and requested accused to accept Rs.5000/ then and balance later on. Envelop was then handed over to the accused by the complainant. Complainant asked the accused to count the money.
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Accused did so and kept it on side corner table. He (PW Avtar Singh) then came out and gave signal. CBI team rushed in and caught the accused from his wrists. His hands as well as envelop were washed in separate solutions which turned pink. They were poured in bottles and sealed. The bottles containing hand washes and envelop wash were Ex.P8/A, P8/B and P9. The cloth wrappers were Ex.P10, P11 and P12. Witness then identified his signatures on the bottles, wrappers, envelop, rough site plan and various memos. Cassette Ex.P4 was played in the court. Witness identified introductory voices of Gursharan Singh and himself. He also identified voices of complainant and the accused. Cassette Ex.P2 was then played. Witness recalled having heard the cassette in the office of complainant at Karampura. On being crossexamined, witness claimed that he had received telephone call from HRD Manager. The demand probably was of Rs.9000/. He admitted that in the complaint amount might have been written as Rs.10,000/. The cassette had been played and it was blank. Thereafter their introductory voices had been recorded. Complainant had delivered a prerecorded CC No. CBI Vs. Avinash pg 26 of 58 27 cassette to CBI officers in his office. It was played in his office. From CBI office they had gone to Karampura area. He did not remember what was transacted on arrival in complainant's office, but complainant produced Rs.5000/ on which some chemical was applied and demonstration was also explained. A speaker had been attached to the recording machines and when conversation was recorded, they had also heard it. But he could not admit or deny that person on the other end was accused or not. In the first instance he and complainant had gone upstairs, but he could not remember if there was any bed in the room where they were sitting. His statement had also been recorded in the departmental enquiry which was Ex.PW8/DA. He denied the suggestion that he had not gone inside the house of the accused with the complainant and had gone only with CBI team later on. He did not remember whether in CBI office apart from the complaint any other document was shown to him or not. He admitted that he had signed Ex.PW2/E and Ex.PW7/C which are recovery memo and site plan with open eyes and open mind.
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20. The next witness was Sh. S.K. Sinha. He deposed that in
1994 he was working as Inspector in ACB, CBI New Delhi. This case was entrusted to him for investigation by the SP. He recorded supplementary statement of the complainant, members of the trap party and other witnesses. On 17.8.94 in presence of independent witnesses, he prepared copy of the cassette . After preparing copy, the original cassette was resealed and seal was given back to independent witnesses Avtar Singh. He was then transferred from the branch and the case was handed over to Inspector P.K. Sharma. In his crossexamination he claimed that he had recorded further statement of the complainant and officials of National test House, Ghaziabad. He did not remember having summoned any official from the firm. He expressed his ignorance about the closure report filed in 2001. He denied the suggestion of having recorded statement of Sanjay of Bharat Engineering Company.
21. After closure of the evidence, statement of accused was recorded u/s. 313 Cr.P.C.
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22. In his statement u/s 313 Cr.P.C. accused denied case of the prosecution. He claimed that he had no knowledge of recording of conversation between him and the complainant. He denied having made calls to the complainant seeking money for getting samples passed of M/s Bharat Engineering Co. He also denied having contacted complainant and introducing himself as Scientist in NTH Ghaziabad. Regarding CFSL report, he claimed that the expert was not examined in the court and the expert opinion submitted in the case by prosecution did not tally with the charge sheet CFSL opinion. Regarding transcripts, he claimed that there was no expert opinion on record. He claimed that a false case had been imposed on him. He was a textile engineer having been appointed as Scientific Assistant and had nothing to do with electrical samples.
23. He examined seven witnesses in his defence including himself. The first witness was Sh. Jiya Lal from National Test House, Calcutta. He deposed that he was posted in NTH Ghaziabad from 13.10.83 to CC No. CBI Vs. Avinash pg 29 of 58 30 29.6.09 as LDC, UDC, Office Assistant and Superintendent. Mr. K.L. Garg was Director between 1989 and 1993. K.L. Garg belonged to general/forward caste. He used to harass officials of SC/ST & OBC. He had come on deputation from DGS&D. Accused had made a complaint dt. 30.4.91. The same was received in the office and copy of the receipt was Ex. DW1/A. The complaint was against K.L. Garg and it was sent to Home Ministry by Registered Post. Home Ministry summoned K.L. Garg and harassed him for 15 days. K.L. Garg then told him (DW1 Jiya Lal) that Bhatia has instigated him to file complaint. Subsequently in 1995 or 1996 K.L. Garg met him and asked well being of the accused by said the following words "Aap ke guru Avinash ka kya haal hai? Maine usko tho accha sabak sikh diya jo zindagi bhar nahin bhoolega".
24. Upon being cross examined by Ld. PP, he admitted that he had been tutored by Ld. Defence counsel. He also admitted that he had not accompanied K.L. Garg to the Ministry. Rather he did not have any evidence with him regarding summoning of K.L. Garg by the CC No. CBI Vs. Avinash pg 30 of 58 31 Ministry. He could not recall the date, month or even year in which he had met K.L. Garg.
25. The second witness to be examined by the accused was Sh. Chander Menon, Assistant Director, Administration, NTH Ghaziabad. He deposed about file (D10/2) which contained 15 copies which were Ex. DW2/A. Mark DW2/1 was photocopy of an order exonerating the accused, while photocopy of the service book was Ex. DW2/B and certificate issued by him was Ex. DW2/C.
26. Upon being cross examined by Ld. PP he claimed that he had no personal knowledge of the present case.
27. The third witness to be examined in defence was Sh. Anurag Bhalla. He deposed about exoneration order Mark DW2/1. He identified signatures of K.B. Subramanium. The said order was exhibited as Ex. DW3/A. He too in his cross examination claimed that he had no personal knowledge of the case.
CC No. CBI Vs. Avinash pg 31 of 58
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28. The next witness to be examined was Mr. K.K. Saxena. He produced original service book of K.L. Garg. Photocopy of the relevant page was Ex. DW4/B. He also claimed that he had no personal knowledge about the case.
29. DW5 was Sh. Sanjay Sharma from MTNL. He deposed about original of reply dt. 4.4.09 Ex. DW5/DA and also original of reply dt. 26.5.11 Ex. DW5/DB and the corrigendum containing signatures of the General Manager Ex. DW5/DC.
30. DW6 was Mr. Jayant Kashmiri from CBI. He deposed that he took charge of the case as holding IO and filed closure report before the Special Judge. The report was Ex. DW6/A.
31. In the end accused himself entered the witness box and deposed. He claimed that on 30.4.91 he made a complaint to Director General, NTH Calcutta against Mr. Kishan Lal Garg of National Test CC No. CBI Vs. Avinash pg 32 of 58 33 House Ghaziabad. The complaint was Ex. DW1/A. He was having degree in Bachelor of Textiles. Copy of the same was Ex. DW7/A, while copy of his appointment letter was Ex. DW7/B.
32. I have heard Ld. PP and Ld. Counsel for the accused. I have also gone through the record. I have also gone through written rebuttal submissions running into 35 pages filed by Ld. Counsel for the accused. In the written rebuttal submissions, he has assailed case of the prosecution on many grounds.
33. It has been claimed therein that complainant in his statement dt. 30.05.05 admitted that he could not say if the complaint was true or false. FIR had been registered at 1.30 pm on 16.7.94. In his testimony complainant had admitted that on 16.7.94 at about 3.00 or 4.00 pm, a formal complaint had been taken from him. He had also claimed that it was written at the instance of CBI officers. So that means that FIR was registered before receipt of complaint. It was further claimed that accused was a Textile Engineer and had nothing CC No. CBI Vs. Avinash pg 33 of 58 34 to do with electrical cable samples. The authorization letter was a fabricated and fictitious document. The trap was fake, managed, baseless and fictitious. Complainant himself had admitted that he was not doing any liaison work for M/s Bharat Engineering Co. Closure report had been filed by Mr. Jayant Kashmiri, the IO of the case. The closure report was not accepted by the court which directed investigating agency to further investigate. It was further claimed that accused had been exonerated in departmental proceedings. He relied upon judgment titled as P.S. Rajya Vs. State of Bihar. There were major contradictions on the point of alleged trap money. Because of coding system, name of firm/supplier cannot be known. Further it was claimed that the sanction accorded for prosecution was defective. Accused relied upon two judgments namely Tirath Prakash (deceased by LR) Vs. State and Mansukh Lal Vittal Das Chauhan Vs. State of Gujrat. It was also claimed that there was no occasion of demand in the case. In support of his case, he relied upon Ram Saran Das Vs. State of U.P., a case decided by Hon'ble Allahabad High Court. It was claimed that since no work of CC No. CBI Vs. Avinash pg 34 of 58 35 complainant was pending with the accused, there was no occasion for demand of bribe. The CFSL report which had been filed alongwith the charge sheet did not pertain to this case and the public prosecutor Mr. Akhilesh had given up the expert witness, as he was suffering from paralysis but no medical certificate had been filed. He then quoted from judgment in Surajmal Vs. Delhi Administration that mere recovery of money divorced from circumstances is not sufficient to convict when substantive evidence is not reliable. Accused referred to case of State of Ajmer Vs. Shivji Lal : AIR 1959 page 847 where it was held that mere receiving of money by a public servant even by corrupt means is not sufficient to make out an offence u/s 5 (2) r/w Sec. 5(1)(d). Telephone no. 301612 on which conversation had taken place was not working in Mandir Marg area. Complainant himself had admitted that he had good relation with many honest officers of CBI and he had informed them regarding telephone calls received by him. Prosecution had not examined Director of M/s Bharat Engineering Co., N.K. Prasad, CFSL Expert and panch witness Gurcharan Singh. Shadow witness Avtar Singh was untrustworthy and fake and lastly it CC No. CBI Vs. Avinash pg 35 of 58 36 was claimed that K.L. Garg, Director DGS&D used to harass the accused and used to threaten him. Mr. Garg belonged to Electrical disciple and could have directed the complainant to implicate the accused in respect of electrical cable sample due to previous enmity. It was prayed in the written submissions that accused be acquitted.
34. I have given my considered through to the submissions. I shall first take up his case that he has been exonerated in departmental proceedings and so he is entitled to be acquitted in the present case.
35. Accused cited case titled as P.S. Rajya Vs. State of Bihar:
(1996) 9 SCC and case titled as Ajay Kumar Tyagi Vs. State : III (2008) DLT Crl. 788 and V.B. Raikar Vs. State of Karnataka: 2004 Crl.L.J. 333.
36. In P.S. Rajya's case accused/appellant was income tax officer and was booked for disproportionate assets. He was exonerated in departmental proceedings in the light of report submitted by Central CC No. CBI Vs. Avinash pg 36 of 58 37 Vigilance Commission. Advocate for the State in that case had argued that notwithstanding findings of the departmental enquiry, CBI was entitled to proceed on basis of material available with it. He had also conceded in that case that charge in the departmental proceedings and criminal proceedings was one and the same and he also did not dispute findings given in the departmental proceedings. Hon'ble Supreme Court referred to its earlier decision in case titled as State of Haryana Vs. Bhajan Lal and held that criminal proceedings against P.S. Rajya could not be pursued.
37. In second case titled as Ajay Kumar Tyagi Vs. State, Hon'ble Judge of the High Court referred to case of Sunil Gulati Vs. R. K. Vohra wherein Hon'ble Delhi High Court had held that in such a situation Court has to see reasons for exoneration and then decide whether criminal proceedings should continue or not. If accused have been given benefit on technical ground or had been given benefit of doubt or the departmental proceedings were not on same identical facts or exoneration was not on merits, then criminal proceedings CC No. CBI Vs. Avinash pg 37 of 58 38 would continue.
38. In still another case pertaining to this very accused in Hon'ble Delhi High Court which is titled as Avinash Kumar Vs. State through CBI : Crl. MC no. 2796 of 2009 and C.M. Appeal no. 9460 of 2009 decided on 08.09.2010 had an occasion to deal with similar situation. In the said case petition was filed for quashing of the criminal trial. The allegations were of acceptance of Rs. 5000/ by the accused from Suntex Enterprises owned by R.S. Guleria. S.P. CBI send his report to the department concluding that it was not a fit case for launching prosecution. I.O. had concluded that there was no demand of bribe of Rs. 5000/ and accused had not accepted it. Hon'ble Judge referred to an earlier decided case of Sunil Gulati. In case of Sunil Gulati, My Lord Mr. Justice A.K. Sikri referred to judgment of Hon'ble Supreme Court in case of Standard Chartered Bank Vs. Directorate of Enforcement. Hon'ble Surpeme Court had held that both adjudication as well as criminal proceedings could be initiated simultaneously if permissible. It had further held that findings CC No. CBI Vs. Avinash pg 38 of 58 39 of departmental proceedings would not amount to res judicata. (emphasis added)
39. It further held that if accused is exonerated by competent authority in adjudication proceedings, then one must see reasons for exoneration. If exoneration is on technical ground or by giving benefit of doubt and not on merits, it would have no bearing on the criminal proceedings. If the exoneration in adjudication proceedings is on merits and it is found that allegations are not substantiated, then criminal prosecution cannot be allowed to continue. It further held:
"The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as criminal complaint are identical and the exoneration of the concerned person in the departmental proceedings is on merits holding that there is no contravention of provisions of any act. From a perusal of the Sunil Gupta's case (supra), it is apparent that a distinction has been CC No. CBI Vs. Avinash pg 39 of 58 40 drawn where exoneration in an adjudicating proceeding on a given set of facts and evidence is on merits visavis where exoneration in adjudicating proceeding is either not on merits or criminal proceeding is based upon different set of facts and evidence."
40. The Hon'ble Judge in case pertaining to this accused had dismissed his petition for quashing of criminal trial and held that accused had been exonerated in prolonged departmental enquiry for reasons other than merit or the evidence. The witnesses were reluctant to appear and presiding officer was not there. The proceedings were conducted half heartedly and the exonerations was because of non appearance of the witnesses and non consideration of the material.
41. Hon'ble Supreme Court had dealt with this kind of situation in case titled as Superintendent of Police (CBI)Vs. Deepak Chaudhary:
CC No. CBI Vs. Avinash pg 40 of 58
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1996 Cr. L. J. 405. In that case accused was working in a bank. He was charge sheeted. Disciplinary proceedings conducted by the bank resulted in his exoneration. Hon'ble Supreme Court held :
"The second ground of departmental exoneration by the disciplinary authority is also not relevant. What is necessary and material is whether the facts collected during investigation would constitute the offence for which the sanction has been sought for".
42. In a later decision similar situation cropped up in case titled as State Through SPE and CBI, A.P. Vs. M. Krishna Mohan : AIR 2008 S.C. 368. Accused who was Manager of the bank was charge sheeted. Departmental proceedings were initiated only against accused No.2 and in departmental proceedings he was exonerated. The departmental proceedings were completed even before IO had started his investigation. Hon'ble Supreme Court held:
"In a case of this nature where departmental proceeding CC No. CBI Vs. Avinash pg 41 of 58 42 was initiated only as against respondent No. 2, the enquiry officer did not have the benefit to consider all the material which could be brought on record by the Department in the light of the investigation made by a specialized investigating agency, the evidence of experts and deposition of witnesses to show that forgery of document has been committed by forging thumb impression and handwriting, we are of the opinion that exoneration of respondent No. 2 in the departmental proceedings cannot lead to the conclusion that he was not guilty of commission of the offences where for he was charged."
43. Now coming back to the case in hand, if we go through the exoneration order, which is Ex. DW3/A, we find that it was passed by order of the President by Under Secretary to the Government of India. According to para6 of the order, Enquiry Officer in his report held that sub article 1 & 3 had not been proved, while sub article 2 of the CC No. CBI Vs. Avinash pg 42 of 58 43 charge had been proved. I would like to reproduce sub article 2 as follows:
"The C.O. while working as S.A. (RPT) at NTH (NR), Ghaziabad accepted Rs. 5000/ as illegal gratification from Sh. R.S. Guleria, Prop. of M/s Suntex Enterprises, B11/2009, Shivam House, Karampura, New Delhi."
44. So in the departmental proceedings also it was proved that accused had accepted Rs. 5000/ as illegal gratification. The competent authority despite that concluded that the report of Inquiry Officer was not acceptable. The conclusion drawn by the competent authority was perverse and illegal. It deliberately shut its eyes to the findings of the enquiry officer. What further proof was needed when in departmental proceedings it had been established that accused had accepted illegal gratification of Rs.5000/. Despite that it chose to exonerate him. In the above cited judgments duty has been cast upon the court to see if exoneration had been on merits or not. If it had been on merits then certainly accused cannot be tried further. Here in CC No. CBI Vs. Avinash pg 43 of 58 44 case in hand as I have already discussed the competent authority deliberately shut its eyes to establishing of the charge of having accepted illegal gratification. So exoneration in the departmental proceedings will not be of any help to the accused.
45. Ld. Counsel for the accused had also assailed the sanction which had been granted for prosecution of the accused. Sanctioning authority PW1 Sh. Atul Krishna Dutta in his crossexamination admitted that he had no legal qualification and he went through advice of vigilance officer. Ld. Counsel submitted this would indicate that he did not apply his independent mind and went according to the advice given by the vigilance department. I am afraid, it is not so. A person may seek advice of ten people, but ultimately take his own decision. This matter was agitated before my Ld. Predecessor also. He in his order dt. 7.3.05 had held that sanctioning authority was head of National Test House and he was within his right to obtain advice on legal matters from the persons who were conversant with it.
CC No. CBI Vs. Avinash pg 44 of 58
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46. Ld. Counsel also submitted that sanctioning authority had admitted that he was not aware if the accused was qualified in textiles. Again I am of the opinion that accused cannot derive any benefit. The question in issue is whether accused had demanded and accepted money or not. His academic qualifications do not matter. If the sanctioning authority was satisfied regarding averments of his demanding and accepting money that would be sufficient to hold that sanction had been granted after due application of mind. Accused relied upon Tirath Prakash Vs. State, Mansukh Lal Vitthal Dass Chauhan Vs. State of Gujarat: 1997 (3) Crimes 301 and State Vs. Ravinder Singh : 1995 Cr. L.J. 3428. In the first case Hon'ble Delhi High Court had held that sanction was granted without application of mind because amount of illegal gratification was Rs. 138/ whereas sanctioning authority had mentioned it as Rs.140/. In a recent decision in case titled as Kuldeep Sharma Vs. State of H.P. :
Criminal Appeal No. 1362 of 2003 decided on 04.04.2011, two engineers were involved in fudging of muster roll No. 146 and 230. Sanction for prosecution mentioned only muster roll No. 146. No CC No. CBI Vs. Avinash pg 45 of 58 46 mention was made of muster roll No. 230. Upon conviction, it was argued in Hon'ble Supreme Court that sanction was bad. Hon'ble Supreme Court upheld the conviction holding that conviction cannot be held to be illegal merely because no reference was made to muster roll No. 230 in the sanction order.
47. The second judgment is totally not attracted to the facts of the case in hand. In the said case Hon'ble Gujarat High Court had given directions for granting of sanction. Here no such direction was given by anybody.
48. In the third judgment the sanctioning authority in his testimony had claimed that he did not remember having seen statement of witnesses and documents of the case at the time of grant of sanction. The accused was discharged by the Special Judge. According to Ld. Counsel in the case in hand also sanctioning authority had claimed that he did not remember having seen statement of R. Ramakrishnan and D. N. Roy. But to my mind the above authority does not apply to CC No. CBI Vs. Avinash pg 46 of 58 47 the facts of the present case. In the above cited case, the sanction file had been called for. The statements were not found in it. Here it is not the case. The sanction file was not called for during trial of this case. Moreover, in the above cited case main shadow witness had turned hostile whereas in the case in hand the independent witness did not turn hostile and supported the prosecution case.
49. Ld. Counsel for the accused further submitted that there was no motive for demand of any bribe. He relied upon judgment titled as Ram Saran Dass Vs. State of U.P. of Allahabad High Court. In the said case it was held that mere fact that accused was arrested from his residence while taking bribe was not enough. Further prosecution was not able to prove that there was any occasion for the accused to demand bribe. Hon'ble Supreme Court in B.K. Mandal Vs. State of West Bengal : AIR 2010 SC 3638 had held that absence of proving of motive does not affect evidence of prosecution witnesses. It had also held that motive was best known to the accused himself. Hon'ble Supreme Court in B. Moha Vs. State of Kerala : 2006 VI AD CC No. CBI Vs. Avinash pg 47 of 58 48 (Cri.) 465 had held that where there was voluntary and conscious acceptance of money, there is no further burden cast on the prosecution to prove by direct evidence the demand or motive.
50. Ld. PP on the other hand wanted the court to raise presumption under section 20 of P.C. Act. According to it, if acceptance is proved then it will be presumed that it was accepted as motive or reward. The burden thereafter shifts to the accused that he had not accepted it as a motive or reward. Acceptance can be proved by : 1) recovery, 2) hand washes post recovery and 3) statement of eye witnesses. Hon'ble Delhi High Court in Ram Chander Vs. State : 2009 Cri. L. J. 4058 had held that presumption as to demand of bribe can be drawn if tainted money is recovered from possession of the accused. The presumption, of course, was rebuttable.
51. Ld. PP argued that acceptance had been proved by complainant Mr. Guleria in his testimony, PW Avtar Singh and S.K. CC No. CBI Vs. Avinash pg 48 of 58 49 Peshin. According to PW R.S. Guleria he had extended Rs. 5000/ towards accused who had accepted the envelop in which GC notes had been kept. PW Avtar Singh in his testimony had claimed that accused had asked complainant to pay Rs. 2000/ per sample and thereafter agreed to accept Rs. 5000/ as part payment and balance lateron. TLO S.K. Peshin in his testimony deposed about washing of fingers of both the hands of the accused in colourless solution of sodium carbonate. He deposed that the solution had turned pink which indicated that accused had handled those GC notes. On the other hand, Ld. Counsel for the accused submitted that R.S. Guleria in his complaint had claimed that he was authorized by M/s Bharat Engineering Co. to watch their interest in National Test House, but in his examination in chief he had also admitted that he was not doing any liaison work for M/s Bharat Engineering Co. Further Ld. Counsel for the accused claimed that no work was pending with the accused and he was not in a position to help out complainant or M/s Bharat Engineering Co. with the test results. He relied upon judgment titled as Kanhaiya Lal Vs. State of Rajasthan: 1998 Crl. L. J. 3155 and CC No. CBI Vs. Avinash pg 49 of 58 50 case titled as Babu Lal Bajpayee Vs. State of U.P. : AIR 1994 Supreme Court 1538. He also submitted that accused was on leave when the sample was received in the laboratory and when it was assigned to Mr. Nagender Singh. He had also submitted that CFSL expert had not been examined. Accused was a Textile Engineer and had nothing to do with electrical cables. Moreover, there was no official act to be performed by the accused in respect of samples pertaining to M/s Bharat Engineering Co. He relied upon State of U.P. Vs. Jagdish Singh Malhotra : 2001 (1) Crimes 322 (SC) and State of Ajmer Vs. Shivji Lal : AIR 1959 SC 847. In the last cited case a government teacher was accused of taking money to make appointments in railway running shed. Hon'ble Supreme Court had held therein that there was no misconduct his part in discharging of his duty as a public servant.
52. Section 7 of the PC Act 1988 is almost identical to Section 161 IPC which was since repealed. In case titled as Venkatarama Naidu Vs. Emperor, a man wanted to join police force. Reserve Inspector CC No. CBI Vs. Avinash pg 50 of 58 51 found his height to be less than minimum height prescribed. He rejected the application. The applicant then tendered a five rupee note. Hon'ble Court held that if a man in vain hope of getting public officer to reconsider his decision and he offers bribe, he commits no offence and public officer would also not commit offence by accepting it, because he had become functus officio. In Vishnu Prasad Vs. State of U.P.: 1981 Crl. L. J. 1489, a head constable went to arrest Beni. He was not found. Thereafter head constable forcibly took away his wife Kailashwati and demanded Rs. 500/ to release her. He agreed to accept Rs. 125/. The payment was to be made on Thursday. She got him trapped. It was held that the accused did not demand or obtain or accept illegal gratification as a motive for forbearing to do any official act. It was simple a case of extortion.
53. Ld. Senior PP Sh. Praneet Sharma relied upon very recent decision in case titled as Syed Ahmed Vs. State of Karnataka :
2012 SCW 4389. In the said case there was a dispute between two neighbours and the matter went to police. Syed Ahmed was the police CC No. CBI Vs. Avinash pg 51 of 58 52 officer who inquired into the matter. Thereafter the parties arrived at settlement and few days lateron fresh dispute arose. Complainant again went to police station. For inquiring into complaint, Syed Ahmed demanded gratification. Trial court acquitted the accused while Hon'ble High Court of Karnataka reversed the findings. It held that in view of Sec. 7 (d) of the Act, a public servant who is not in a position to do any favour could also be deemed to commit an offence under the act, if he accepts illegal gratification. So according to Ld. PP even if the public servant was not in a position to do any particular act still he would be covered by Section 7 of the PC Act. He further submitted that even if the sample had not been assigned to the accused, still he can be convicted in the light of said judgment. In the aforesaid case, the evidence led was to the satisfaction of Hon'ble High Court and also Hon'ble Supreme Court. It held that there was no reason to disbelieve Nagaraja or the independent witness Sedeshwara Swamy. The discrepancies were found to be minor and insignificant. Hon'ble Apex Court upheld the findings of Hon'ble High Court.
CC No. CBI Vs. Avinash pg 52 of 58
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54. Now if we come back to the case in hand the discrepancies are prominent and glaring. Complainant in his testimony committed few flip flops as I already noted earlier. He said that on 16.7.94 CBI officers came to his office at about 3.00 or 4.00 pm and took the complaint from him. By normal implication, FIR should have been registered only thereafter. But if we take a look at copy of FIR, we find that it had been registered at 1.30 pm on the same day. Further we find an endorsement made on the complainant Ex. PW2/A by the SP.
It is for "necessary action to lay trap". If complaint itself had been handed over in the office of the complainant, then how could SP make an endorsement thereon. Moreover PW Mr. S.K. Peshin and Mr. Avtar Singh had claimed that they read the complaint in CBI office and then left for Karampura. Complainant R.S. Guleria in his testimony claimed that CBI team members had come to his office where he had handed over the complaint. The story of the complainant and Mr. Avtar Singh and Mr. S.K. Peshin is at variance.
55. Complainant R.S. Guleria claimed that he had never met CC No. CBI Vs. Avinash pg 53 of 58 54 Manager of M/s Bharat Engineering Co. The said manager had left authorization letter and Rs. 5000/ with his wife. If we take a look at the authorization letter which is Mark X, we find that it is a letter authorizing R.S. Guleria to look after work of M/s Bharat Engineering Co. with various government department like NTH, RTC etc. Now if we take a look at the complaint Ex. PW2/A, we find that exact details of the samples is mentioned therein. If R.S. Guleria had never met Manager of M/s Bharat Engineering Co. , then how come those details got mentioned in the complaint Ex. PW2/A because Mark X is silent regarding those details. It indicates that things are not above board and manipulations might have taken place somewhere at some stage. I find myself in agreement with contentions of Ld. Counsel Sh. S. Prasad that details of the samples had been provided by K.L. Garg who had been posted at DGS&D and bore grudge against the accused Avinash and officials of lower caste.
56. Now let us examine the demand which was made by the accused. According to complainant, accused had been telephoning CC No. CBI Vs. Avinash pg 54 of 58 55 R.S. Guleria seeking money. The calls were being made over the telephone. He had not met accused personally before day of arrest. According to S.K. Peshin, public witness was asked to dial telephone no. 301601 which belonged to the accused. However in the charge sheet, the telephone of the accused was mentioned as 301612. After the call materialized the receiver was handed over to Mr. Guleria for conversation. The conversation was then recorded. Accused had examined DW Sanjay Sharma. He also sought information under RTI Act. According to telephone directory, the exchange of Mandir Marg where accused was residing at was 374 and not 301. Exchange 301 was for areas of Udhyog Bhavan, Nirman Bhavan, Taj Hotel, Sunehri Bagh etc. etc. CBI had ample manpower and means at its disposal. They could have easily verified as to whether the aforesaid telephone numbers were installed at the residence of accused or elsewhere.
57. CBI did not examine any witness from Bharat Engineering Co. who could have deposed about their sending of samples to National CC No. CBI Vs. Avinash pg 55 of 58 56 Test House Ghaziabad, where accused was employed. Complainant in his examination in chief claimed that he could not say if the complaint made by him was true or false. If complainant himself was not sure about status of the complaint, then court certainly should look at it with suspicion.
58. There is still another reason for the court not to believe prosecution version. Sample was received in National Test House on 18.5.94. It was received in RPT lab on 13.6.94. It was marked to Mr. Nagender on 15.6.94. Data was generated on 27.6.94 and report was generated on 28.6.94. Accused was on leave from 16.5.94 to 03.6.94. Again from 13.6.94 to 17.6.94 and thereafter on 27.6.94. So on all the dates, when some development took place regarding the sample, accused was on leave. It is thus difficult to believe that he had made some demand regarding testing of those samples.
59. Now let us see the acceptance part as put forth by the prosecution. There are some contradictions in the testimony of CC No. CBI Vs. Avinash pg 56 of 58 57 witnesses. According to Mr. S.K. Peshin the bribe amount was seen lying on bed whereas according to Mr. Avtar Singh it was lying on corner table. If we take a look at the site plan which was admittedly correct, position of Avtar Singh shadow witness is indicated by "D". Door is towards left of his position. One certainly cannot look into the room from the position of "D". Thus it is doubtful as to what Avtar Singh had looked and then given the pre arranged signal. Now if we take a look at CFSL report Ex. PA, we find that the various exhibits gave positive test for phenolphthalein and sodium carbonate. The report at the top gives its number as CFSL94/C859 whereas in the charge sheet it is mentioned as 94/C850. However in the body of the report Ex. PA correct number of the RC finds mention. The scientist Mr. M.K. Prasad who had carried out the examination could not be examined. Ld. PP who was posted in this court at that time had tendered the report in evidence and had claimed that Mr. Prasad was suffering from paralysis and so he could not depose. No medical record of Mr. Prasad was placed on record.
CC No. CBI Vs. Avinash pg 57 of 58
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60. It is no doubt true that accused can be convicted in the light of Syed Ahmed Vs. State of Karnataka: 2012 AIR SCW 4389, even if he was not in position to show any favour in his official acts as the sample had been marked to Mr. Nagender, but atleast the story of the prosecution should be convincing and should generate confidence. Accused was a qualified Textile Engineer and had apparently nothing to do with testing of electric cables, but in the evidence led; flip flops were committed by the complainant himself who was not himself sure whether complaint was true or false lead me to hold that CBI has failed to prove its case u/s 7 of the PC Act beyond all shadows of doubt. Consequently he cannot be convicted u/s 13 (2) r/w sec. 13(1)
(d) of the PC Act. The holes in the evidence were too big and unbridgeable. I give accused Avinash @ Avinash Kumar benefit of doubt and acquit him of both the charges.
Announced in open Court
on October 9, 2012 ( PRADEEP CHADDAH )
Special Judge:CBI01
Central District. Delhi
CC No. CBI Vs. Avinash pg 58 of 58