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Delhi District Court

Cbi vs . V.K. Sirohi, Cc No. 07/12, Case Id No. ... on 11 September, 2015

                           IN THE COURT OF SH AJAY KUMAR JAIN,
                              SPECIAL JUDGE (PC ACT)/ CBI - 01,
                         NEW DELHI DISTRICT, PATIALA HOUSE COURT,
                                        NEW DELHI


In re :


CC No. 07/12
Case ID No. 02403R0098252010
RC No. 26(A)/09/CBI/DLI
U/s 7, 13(2) r/w 13 (1) (d) of PC Act, 1988


          Central Bureau of Investigation



                               Versus


          V.K. Sirohi
          S/o Sh Om Vir Singh Sirohi
          R/o B­1/100, Aravali Apartment,
          Sector - 34, Noida, UP




Date on which charge sheet was filed :                                      26.03.2010
Date on which charge was framed      :                                      01.10.2010
Date on which arguments concluded :                                         01.09.2015
Date on which judgment pronounced :                                         11.09.2015


APPEARANCES:

Sh. J.S. Wadia, learned Spl. PP for CBI
Sh. Lalit Kumar, Ld. counsel for accused V.K. Sirohi




  CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI,   Page No. 1 to 60
 JUDGMENT

1. The present case presents the pathetic state of affairs of government departments dealing with public. The public is invariably harassed for giving bribes even for their legitimate work which the government officials are duty bound to do.

2. The brief background of prosecution story is that M/s Alt Energy India Ltd. dealing in exporting goods approached Central Excise Department for obtaining CT­1 certificates in order to avoid the payment of excise duty to the manufacturer. For claiming said benefit company submitted bonds of Rs. 4 lacs alongwith bank guarantee of Rs. one lac drawn on Nainital Bank pursuant to which CT­1 certificates were issued by the department. On the basis of CT­1 certificates, the company got excisable goods directly from the manufacturer for export without payment of excise duty. After exporting goods, company submitted the proof of export in the form of Shipping bill, ARE­1 (application for removal of excisable goods), bill of lading and bank realisation certificate etc.

3. The said company decided not to export further therefore, vide letter dated 15.05.2009 (Ex.PW4/X­1) requested for cancellation of the bond and discharge of bank guarantee. On basis of the said letter a note dated 15.05.2009 (Ex.PW4/B) was initiated by accused V.K. Sirohi wherein he noted that as proof of exports in respect of all CT­1's issued to the party has been accepted, the bonds may please be cancelled CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 2 to 60 and sent this note for perusal and approval to Superintendent, then to the Assistant Commissioner. The said note was accepted by the Superintendent and Assistant commissioner on 20.05.2009.

4. But according to prosecution story, accused V.K. Sirohi demanded a sum of Rs.

8000/­ from the complainant for release of bank guarantee pursuant to which on the direction of MD of the company Sheetal Prasad Singh, complainant PW5 Manoj Saini lodged a complaint dated 20.05.2009 in the CBI office. On receipt of the said complaint, concerned SP ordered SI Nikhil Malhotra (PW9) to verify the complaint, thereafter PW9 SI Nikhil Malhotra arranged independent witnesses as well as digital voice recorder, and on the direction of SI Nikhil Malhotra, PW5 Manoj Saini complainant called accused V.K. Sirohi on his mobile no. 9811344451 from the mobile of Sheetal Prasad Singh bearing No. 9810409181 at around 12:05 am. The said conversation was recorded in the said DVR, also heard by the independent witness. During conversation accused was found to be demanding bribe money of Rs. 8000/­, consequent to which FIR was registered.

5. Thereafter, on the direction of SP, a trap team was constituted under Inspector Anand Swaroop (TLO) consisting of two independent witnesses Rama Shankar Singh, D.K. Singh, Inspector Prem Nath, SI Yogesh Kumar, SI Nikhil Malhotra and SI Pankaj Vats etc., thereafter, complainant produced Rs.8000/­ and Inspector Prem Nath explained the effect of phenolphthalein powder reaction on the GC notes and details CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 3 to 60 of pre trap proceedings were recorded in handing over memo.

6. During trap, accused V.K. Sirohi was caught red handed on 20.05.2009 from his office while demanded and accepting tainted GC notes in presence of the shadow witness Rama Shankar Singh. Hand washes of his hands and pant pocket were taken and the resultant solutions were prepared in the bottles which were duly sealed then the recovered notes were tallied and the conversations were played. The conversation recorded during pre trap proceeding were sealed in cassette Q­1 and conversation recorded during trap proceeding were sealed in cassette Q­2. The cassettes as well as solution were sent to the experts for examination and the sanction was sought from the competent authority for prosecution of the accused V.K. Sirohi.

7. On completion of investigation, the charge­sheet was filed against accused disclosing commission of offence u/s 7 and 13 (2) r/w 13(1)(d) of Prevention of Corruption Act 1988. Thereafter, vide order dated 07.04.2010, cognizance of the offences was taken and accused was summoned.

8. Vide order dated 01.10.2010 the charges u/s 7 & Sec. 13(2) r/w Sec. 13(1)(d) of the Prevention of Corruption Act 1988 were framed against the accused to which he not pleaded guilty and claimed trial.

9. Prosecution for substantiating its case examined 11 prosecution witnesses. The Investigating officer Inspector Raj Singh who filed the charge­sheet could not be examined as not available being proceeded to UN Mission to Liberia on deputation CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 4 to 60 and on the request of Ld. senior Public Prosecutor, prosecution was granted opportunity vide order dated 06.04.2015 by this court to lead the secondary evidence with regard to role of IO Raj Singh.

10. On 05.06.2015, statement of accused u/s 313 Cr.P.C was recorded. Accused opted to lead defence evidence and examined DW1 Someshwar Thakur on 08.07.2015. Prosecution witnesses

11. PW1 VB Ramteke Senior Scientific Officer examined the three sealed bottles containing liquid, and on analysis found positive for the presence of phenolphthalein in all three bottles and prepared report (Ex.PW1/A)regarding the same.

12. PW2 Pawan Singh, Nodal Officer Idea Cellular Ltd. produced the call detail record dated 20.05.09 (Ex.PW2/B) of Mobile no. 9811344451 of accused V.K. Sirohi showing a telephonic call at 12:07:04 pm of 50 seconds durations received from the mobile no. 9810409181 (ie, of PW11 Sheetal Prasad Singh [MD]). He also produced the customer application form, driving license and Identity card of the accused.

13. PW3 Dr. Anup Kumar Shrivastav, Commissioner Central Excise deposed regarding grant of sanction for prosecution of accused vide sanction order (Ex.PW3/A).

14. PW4 Ram Kishan, the Superintendent in Excise Department, found to be immediate senior official of the accused, sitting in the same room where accused VK CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 5 to 60 Sirohi was sitting and witnessed the bribe amount recovery, and the consequent post trap proceedings conducted at the room.

15. PW5 Complainant Manoj Saini deposed regarding the demand of bribe of Rs.

8000/­ prior to trap of the accused, during trap and acceptance, and recovery of of bribe amount from the accused.

16. PW6 Rama Shankar an independent witness arranged from the Education department for conduct of the raid and entrusted the role of shadow witness. He deposed about the recovery of bribe amount from the pocket of the accused and subsequent post trap proceedings.

17. PW7 Dhirender Kumar Singh (DK Singh) another independent from Education department and deposed about the pre­verification recording as well as demand, acceptance and recovery of money from the accused.

18. PW8 Inspector Anand Swaroop Trap Laying Officer, (TLO), constituted the trap team on the directions of SP and laid trap at the office of accused, and witnessed the trap proceedings conducted recovery proceedings, prepared recovery memos,handing over memos etc.

19. PW9 Inspector Nikhil Malhotra conducted pre trap verification recording consequent to which FIR was registered and being a trap team member also witnessed the trap proceedings.

CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 6 to 60

20. PW10 Dr. Rajinder Singh, Director CFSL examined Q1 (the cassette prepared of the conversation between PW5 and the accused on mobile phone), Q2 (cassette prepared for recording the conversation during the trap proceedings) and also specimen voice recording S1 of the accused. In his report Ex.PW10/B. He mentioned that recording in Q2 cassette was found indiscernible due to highly interfering background noise, hence same could not be considered for auditory and voice spectrographic examination.

21. PW11 Sh. Sheetal Prasad Singh, Managing Director of M/s Alt Energy who stated that the accused demanded bribe amount of Rs. 8000/­, and he with Manoj Saini (PW5) lodged a complaint before the CBI in this regard.

Material Exhibits

22. Ex.PW1/A (D12) chemical examination report dated 06.10.09 prepared by V.B. Ramteke, Sr. Scientific Officer showing the positive test for presence of phenolphthalein powder over exhibits LHW, RHW and LSPPW. Ex.PW1/DA (D11) is the forwarding letter of SP Sumit Saran sent to Director, Central Forensic Science Laboratory alongwith the three sealed bottles. Ex.PW2/A(D13) is letter sent by nodal Officer Idea Cellular Ltd. in compliance to notice u/s 91 Cr.PC. Ex.PW2/B is the call detail record of mobile no. 9911344451 of accused VK sirohi dated 20.05.09. PW2/C (D15) is the customer application form of accused VK Sirohi showing the CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 7 to 60 allotment of mobile no. 9911344451. Ex.PW2/D is the driving license of VK Sirohi. Ex.PW2/E is Identity card of accused VK Sirohi, Inspector, issued from Commissionerate, Custom and Central Excise, NOIDA. Ex.PW3/A (D­14) sanction order dated 25.03.2010 accorded by Dr. Anup Kumar Shrivastav, Commissioner of Central Excise under section 19 of PC Act for prosecution of accused VK Sirohi. Ex.PW4/A is the file relating to the case of M/s Alt Energy maintained at the office of Excise Department. Ex. PW4/B is the note dated 15.05.2009 written by the accused V.K.Sirohi wherein he made noting of cancellation of bonds. Ex.PW4/X­1 is the letter dated 15.05.2009 of M/s Alt Energy with request for cancellation of bond and discharge of bank guarantee. Ex.PW4/X­2 is the guarantee bond. Ex.PW4/X­3 is the bond executed by Sheetal P Singh for M/s Alt Energy. Ex.PW4/D (D5) is the recovery memo prepared after the trap proceedings. Ex.PW5/A (D­1) is the complaint dated 20.05.2009 lodged by complainant Manoj Saini (Ex.PW5) alleging the demand of bribe of Rs. 8000/­ for release of the bank guarantee by accused VK Sirohi. Ex.PW 5/B (D2) is the verification report regarding the verification of the bribe amount of Rs. 8000/­ through conversation on mobile phones. Ex.PW5/C (D4) is the handing over memo prepared by Inspector Anand Swaroop containing the details of proceedings conducted by Inspector Anand Swaroop before conducting CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 8 to 60 trap at CBI Office. Ex.PW5/E (D8) is the specimen voice recording memo dated 20.05.09 regarding recording of specimen voice of the accused. Ex.PW5/F (D6) is the office cum seizure memo dated 20.05.09 of the file from accused VK Sirohi related to Alt Energy (complainant company). Ex.PW5/G (D3) is the FIR. Ex.PW5/H is the transcription of the voice recording in cassette Q1 and Q2. Ex.PW5/J (D10) is voice identification memo cum transcription memo regarding the conversation recorded in audio cassette Q1 and Q2. Ex.PW6/D (D9) is the site plan dated 20.05.09 of the place of occurrence i.e. room n. 241, Central Revenue Building, ITO. Ex.PW10/A is the forwarding letter dated 25.05.09 sent by Sumit Saran SP to Director, CFSL to examine the audio cassette Q1, Q2 and S1. Ex.PW10/B is the report over examination of audio cassette Q1, Q2 and S1. Ex.PW10/C is the intimation letter dated 25.03.10 written by PW10 to the SP, CBI regarding collection of report. Ex.PW10/C1 is the photocopy of the relevant entry of dispatching of letter bearing no. 209/L.431 to the Superintendent of Police, CBI. Ex.PW10/D is the letter dated 16.02.2012 written by PW10 Dr. Rajinder Singh to SP for collection of reports exhibits alongwith its report. Ex.PW10/E is the letter authorising Suresh Chand Singh constable. CBI, for collection of the report from the Director CFSL.

23. Ld. Spl. PP for the CBI submits that prosecution able to prove the factum of demand, CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 9 to 60 acceptance and recovery of bribe amount from the possession of accused during raid. Ld. Spl. PP submits that the testimony of the independent witnesses alongwith the complainant and CBI officials clearly established the demand and acceptance of bribe by the accused. Ld. Spl. PP submits that some minor contradictions, variations and inconsistencies are bound to happen in these cases, however, none of the contradictions, variations and inconsistencies hit the core of the case. The prosecution case at the core is credible and prosecution able to prove its case beyond reasonable doubt. There is no mala fide motive on the part of IO to falsely implicate the accused. Even the accused could not place any material to suggest that investigating agency or other witnesses have any grudge against him.

24. Ld. Defence counsel submitted that the accused is falsely implicated in the present case. Ld. Counsel also submitted that prosecution not able to prove the factum of demand, acceptance and recovery of bribe amount from the possession of the accused. Ld. Counsel submits that present case was registered against accused because PW11 have connections in CBI and accused was falsely implicated in connivance with CBI and the other officials of his office. Ld. Counsel submits that the verification cassettes (Q1) and audio cassettes made during the trap (Q2) cannot be read in evidence being inadmissible. Ld. Counsel further submits that as per the report of Voice Analyst Expert PW10 (Q2) was found inaudible. Ld. Counsel also submits that on this basis alone the prosecution case is liable to be dismissed. Ld. CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 10 to 60 Counsel further pointed out the various discrepancies in the statement of complainant over prior meeting with the accused and demand of bribe amount by the accused. Ld. Counsel also stated that the CDR record over the conversation of demand is also inadmissible, and accused never talked or met the complainant (PW5) prior to 20.05.09. Ld. Counsel submits that the independent witnesses PW6 and PW7 are from the same department and thus, cannot be held to be independent witnesses. Ld. Counsel also submits that sanction accorded is without application of mind and do not fall in the category of valid sanction. Ld. Counsel further submits that the material witnesses are withheld from examination and there are various defects in the investigation relating to the proceedings conducted at the spot, preparation of site plan etc. Ld. Counsel submits that there are apparent contradictions in the statement of witnesses over the allegations of demand, acceptance and recovery of bribe amount from the accused. Ld. Counsel submits that the bribe amount was thrusted in the pocket of the accused by the CBI officials in some other room and this fact was duly proved by the accused through independent witness DW1. Besides oral arguments, Ld. Counsel for the accused filed detailed written submissions and 50 points short synopsis.

25. Arguments heard, record perused.

26. The approach of the court in appreciating evidence must be integrated and not truncated or isolated meaning thereby inferences should not be drawn by picking up CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 11 to 60 isolated statement from here and there; rather the evidence on a particular point should be examined in the background of remaining statement of witnesses as well as the evidence. The finding to be based on objective assessment of the evidence. Apex court in "Dalbir Singh & Ors. Vs. State of Punjab AIR 1987 SC 1328", observed that no hard and fast rule can be laid down about appreciation of evidence and every case has to be judged on the basis of its own facts.

27. The skill of appreciation of evidence itself demands disengaging truth from falsehood therefore wholesome rejection of testimony of a witness because some or other part of his statement had not been found to be true, may lead to injustice. While appreciating the evidence of a witness the approach must be whether evidence of witness read as a whole appears to have ring of truth, thereafter the court to scrutinize the evidence more particularly keeping in view the deficiency, drawbacks and infirmities pointed out in evidence as a whole. In "Bhagwan Tana Patil Vs. State of Maharashtra, AIR 1974 SC 21", apex court held that a function of court is to disengage the truth from falsehood and to accept to what is true and reject the rest. In "State of UP VS. Shankar, AIR 1981 SC 897", apex court observed that mere fact that witness has not told the truth in regard to peripheral matter would not justify the wholesome rejection of his evidence.

28. There is misconception regarding the effect of declaring a witness hostile. It is perceived that evidence of such witness is wholly washed off from the record and CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 12 to 60 that it cannot be acted upon by the court. However, this notion is totally misconceived. As expressed by apex court in "Khujji Surender Tiwari Vs. State of MP, AIR 1991 SC 1853", the evidence of the prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him, however, the same to be accepted to the extent his version is found to be dependable on careful scrutiny thereof. In "Rabinder Kumar Dey Vs. State of Orissa, AIR 1977 SC 170", it has been held that by giving permission to cross examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground entire testimony cannot be excluded from consideration. In appropriate cases, the court can rely upon that part of the testimony of such witnesses which are found creditworthy. Latest amendment in section 154 of Evidence Act carried out by way of criminal law (amendment )Act 2005 also provides that nothing in section 154 shall disentitle the person so permitted under sub­section (1) to rely on any part of the evidence of such witness. Hon'ble Delhi High court in case titled "Mahipal Singh Vs. State, Crl. Appeal no. 241/2008 dated 20.04.2015", observed the legal position with regard to the admissibility of the evidence of hostile witness. The para 22 of the said decision is reproduced as under:

"22. the decision in Sat Paul (supra) was followed by the Supreme court in Koli CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 13 to 60 Lakhmanbhai chanabhai Vs. State of Gujarat, AIR 2000 SC 210. The Surpeme Court, inter alia, held as follows:

"It is settled law that evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version. Evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base his conviction upon his testimony if corroborated by other reliable evidence. [Re:Bhagwan Singh v. State of Haryana (1976) 1 SCC 389: (AIR 1976 SC 202: 1976 Crl. LJ 203) and Sat Paulv. Delhi Administration (1976) 1 SCC 727: (AIR 1976 SC 294: 1976 Crl LJ 295)]"

29. To sum up, the art of appreciation is to be carried out in holistic perspective and not in isolation or mechanical manner. In this background, the various facts and circumstances and contentions are to be appreciated.

30. The relevant circumstances to be appreciated in the present case is the factum of demand of bribe, acceptance of bribe and recovery of bribe amount from the accused.

Admissibility of pre trap conversation recorded in audio cassette Q1 and conversation recorded during trap in audio cassette Q2

31. According to prosecution case, pre trap and during trap conversation were recorded in digital voice recorder (DVR), thereafter with the help of some devise the conversation transferred into the audio cassettes marked Q1 and Q2. Admittedly, original DVRs were not produced before the court during evidence, therefore, the audio cassettes prepared falls into the category of secondary evidence as per section CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 14 to 60 65 B (1) of the Evidence Act, and for admissibility of the same a certificate in terms of section 65B (4) is required. But there is no compliance of such procedure. Thus, keeping in view the judgment of Hon'ble Supreme Court in case titled, "Anwar P.V. Vs. P.K. Bashir & Ors., 2014 (10) SCC 473, Sanjaysinh Ram Rao Chavan Vs. Dattaraj Gulab Rao Phalke & Ors, 2015(3) SCC 123 and of Hon'ble Delhi High Court in case titled "Jagdeo Singh @ Jagga Vs. State, Crl. Apl. No. 5277/2014 dtd 11.02.2015", the audio cassettes Q1 and Q2 are found inadmissible, hence cannot be read in evidence. Consequently, the transcriptions (Ex.PW5/H) made from the cassettes also cannot be read in the evidence. In these circumstances the prosecution case is to be appreciated on the basis of oral testimony of the witnesses and other documents on the record.

Admissibility of the call detail record of accused produced by PW2 Pawan Singh, Nodal Officer, Idea Cellular Ltd.

32. It is the case of the prosecution that for ascertaining the authenticity of the complaint (Ex.PW5/A) of PW5, a DVR was arranged, then complainant made a call on the mobile phone of the accused from the mobile phone of his MD (PW11) and during conversation it was found that accused demanded the money pursuant to which verification report was prepared, consequently FIR was registered.

33. PW2 Pawan Singh, Nodal officer o Idea Cellular Ltd. produced the call details of CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 15 to 60 mobile no. 99113 44451 of the accused. Accused do not dispute his mobile number and also the documents of identification, i.e. application form (Ex.PW2/C), Driving License (Ex.PW2/D), and his Identity Card (Ex.PW2/E), but disputed the CDR (Ex. PW2/B) showing a telephonic call duration of 50 seconds from mobile no. 9810409181 (of PW11) to mobile no. 98112344451 (admittedly of accused). Indisputably, no certificate u/s 65B(4) was filed by PW2 Pawan Singh for proving CDR which is secondary evidence in terms of sec. 65B(1) Evidence Act, therefore, the CDR Ex.PW2/B cannot be read in the evidence being inadmissible in view of the judgments referred above.

34. Apex court in case titled "B Jayraj Vs. State of Andhra Pradesh 2014(13) SCC 55", held that it is settled position in law that demand of illegal gratification is sine qua non to constitute offence u/s 7 of the PC Act, and mere recovery of currency note cannot constitute an offence unless it is proved beyond all reasonable doubt that the accused voluntary accepted the money knowing it to be bribe. Apex court in another case titled, "State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede , 2009(15) SCC 200", also held that demand of illegal gratification is a sine qua non for constitution of offence under the provisions of the act and for arriving at the conclusion as to whether all the ingredients of the offence viz. demand, acceptance and recovery of amount of illegal gratification has been satisfied or not, the court CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 16 to 60 must take into consideration the facts and circumstances brought on record in their entirety. However, before raising the presumption against accused u/s 20, the foundational facts must be established by the prosecution. Even while invoking the provisions of section 20, 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 reasonable doubt. Apex court in "C.M. Girish Babu Vs. CBI, 2009 (3) SCC 779" reiterated, mere recovery of payment of money by itself is not enough, in absence of evidence to prove the payment of bribe or to show that the accused voluntary accepted the money knowing it to be bribe. Apex court in "C. Sukumaran Vs. State of Kerala, 2015 (3) LRC 60 (SC)", held that demand by appellant u/s 7 should have been proved to sustain the charge u/s 13(1)(d) of the P.C. Act. Ld. Defence counsel also placed reliance on these cases.

35. Apex court in "Narender Champak Lal Trivedi Vs. State of Gujarat 2012 (7) SCC 80" also held that mere recovery of tainted money was not sufficient to record conviction unless there was evidence that the bribe has been demanded or money was paid voluntarily as bribe. Apex court in "Gurgant Singh Vs. State of Punjab, 2015 IX AD (SC) 137", held that presumption u/s 20 is obligatory where the public servant accept gratification other than legal remuneration. It is presumption of law and casts an obligation on the court to apply in every case brought u/s 7 of the Act. However, CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 17 to 60 presumption is a rebuttable one.

36. Thus, for proving the offence u/s 7 of PC Act, prosecution has to prove demand, acceptance and recovery of the bribe amount from the possession of the accused as foundational facts before invoking presumption u/s 20 PC Act. Accused is liable to rebut the said presumption only after proof of foundational facts by the prosecution that too on the touchstone of preponderance of probability. The circumstances of demand, acceptance and recovery of bribe amount are appreciated as under. Demand of bribe

37. As per deposition PW5 Manoj Kumar Saini (complainant) MD Sheetal Prasad Singh (PW11) received a telephonic call from accused V.K. Sirohi regarding the fact that bank guarantee submitted by their company was going to expire therefore, they may get it released, thereafter, one Anand Bisht, employee of company was sent with authorisation letter for release of bank guarantee, but when he visited the department, accused V.K. Sirohi told him that last forms of the company was not filed, thereafter PW5 visited the department and met accused V.K. Sirohi, and showed him the acknowledgment receipt of the last forms. On this accused states that though he had receipt but last forms were not available on their file but lateron in the evening accused V.K. Sirohi on phone told him that last form had been traced and also told him to come on next date for release of bank guarantee, then he again visited the department on 16th or 17th September but V .K. Sirohi told him that though the last CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 18 to 60 forms were traced but he has to make the back date entries and demanded Rs. 8000/­ for release of bank guarantee of Rs. One lac. PW5 he told this demand to his MD who refused, but accused V.K. Sirohi insisted for fulfilling his demand and even refused to reduce the demand of Rs. 8000/­. Thereafter, he alongwith his MD went to CBI office and lodged the complaint Ex. PW5/B.

38. PW9 conducted the verification of complaint in presence of independent witnesses.

For verification, PW5 made a call on mobile of accused from the mobile of his MD, and the said conversation was recorded in DVR.

39. PW7 D.K. Singh, an independent witness in his testimony stated that he was posted as UDC in the Directorate of Education and on the instructions of his seniors visited CBI office where he was told by some CBI inspector that he would be taken as a witness as somebody was asking bribe and has to witness the proceedings. Thereafter, his introductory voice was recorded in one instrument then on loud volume from the mobile phone of the person, a telephonic conversation was heard and from the telephonic conversation, he can understand that other side person is demanding certain amount and also stated it cannot be reduced. The testimony of this witness appears to be natural and deposed in natural words. There is nothing in cross examination which could suggest that no such demand of conversation was heard by this witness when complainant talked to the accused on mobile phone.

40. PW9 Inspector Nikhil Malhotra in his testimony also stated that PW5 Manoj Saini CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 19 to 60 called from phone of PW11 Sheetal P Singh as the mobile phone of PW5 Manoj Saini do not have speaker facility and the conversation was recorded and a verification memo was prepared. As per verification memo, Ex. PW5/B, it was found that accused was demanding Rs.8000/­ and thereafter FIR was registered. The factum of demand of bribe is also corroborated by the testimony of PW11 Sheetal P Singh. Sheetal P Singh also stated that PW5 informed him that Rs.8000/­ will be paid to the concerned officer for release of bank guarantee, thereafter he approached with Manoj Saini to CBI and from his mobile phone, Manoj Saini called the concerned officer, and during conversation he demanded the money.

41. Thus, from the testimony of PW5 Manoj Saini, PW7 D.K. Singh and PW9 Nikhil Malhotra and PW11 Sheetal P Singh the factum of bribe as demanded by the accused appears to be reliably established. But there appears to be variations in explaining the timing of prior visits of PW5 to the office of accused and timing of telephone calls in that regard. PW5 could not particularly tell on which dates and timings he met accused V .K. Sirohi prior to demand on 20.05.2009. However, in present case, the defence taken by the accused during cross examination and in his statement u/s 313 Cr.P.C also reinforces the allegation of demand made by him to PW5.

42. Accused V.K. Sirohi in his statement u/s 313 Cr.P.C stated that he never met Sh Anand Bisht or any other representative of M/s Alt Energy India Ltd., New Delhi and it was only the Superintendent Sh Ram Kishan (PW4) who used to deal with them. CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 20 to 60 He also stated in his statement that he dealt with this file of M/s Alt Energy on 10.02.2009 and 15.05.2009. On 10.02.2009, he was directed by the Superintendent Ram Kishan to check the documents if in order, and he made a noting on 10.02.2009 that proof of exports are put up for perusal and acceptance, then file never came back to him till 15.05.2009, and on 15.05.2009 Superintendent Ram Kishan (PW4) again sent the file to him after looking at the status of bond, bank guarantee, the proof of exports and the CT­1 forms of the party. PW4 also directed him that photocopies of 8CT­1 forms may also be taken issued previously to the party for immediate perusal.

43. According to this statement, he had dealt the file on 15.05.2009 on the direction of Superintendent Ram Kishan, who also directed him that photocopy of 8CT ­1 forms may also be taken issued previously to the party for immediate perusal. Thus, according to accused, Ram Kishan (PW4) directed him to ask from the party the photocopy of 8CT­1 forms. It is pertinent to mention here that accused had not asked even a single question in cross examination in this regard to PW4 Ram Kishan. Furthermore, the non asking of question over the collection of 8CT­1 form from the party to PW4 is not due to any inadvertent omission but deliberate because PW4 could certainly explain that there is no need of 8CT­1 forms at that stage, and this can also be inferred from the fact that in case there were no 8CT­1 forms on record, the accused would not be in position to prepare the note dated 15.05.09 for cancellation of bond.

CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 21 to 60

44. PW4 Ram Kishan stated that the note dated 15.05.2009 of accused was put up before him on 20.05.2009 and thereafter, before the Assistant Commissioner on 20.05.2009 for approval. PW4 categorically denied the suggestion that it was put up before him on 15.05.2009, there is not even a suggestion to PW4 that he asked accused to collect the photocopy of 8CT­1 forms from the party. Thus, the stand of accused that he demanded 8 CT­1 forms on the direction of PW4 got falsified, on the other hand his stand of demand of 8 CT­1 forms from complainant appears to be made for the purpose of demanding bribe, thus goes against accused.

45. Accused did not insist in cross examination of PW4 over the fact that he had placed the file before the superintendent on 15.05.09 itself after preparation of note and given only a suggestion in this regard which was denied by PW4. This itself suggests that despite making of note on 15.05.09, accused kept file to himself till 20.05.09, till the bribe demand was accepted by the complainant. The possession of file till 20.05.09 in the custody of the accused even after his noting on 15.05.09 itself also suggests that accused kept it for the purpose of realising bribe amount.

46. This stand of accused that he demanded the 8CT­1 forms from the complainant is also corroborated by the statement of PW5 who in his examination in chief categorically stated that on meeting, accused told him that office has not received the 8 CT­1 forms, then PW5 shown the receipt, and on this the accused lateron admitted that last forms were traced by him. This circumstance itself also provide genuinity to CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 22 to 60 the statement of PW5 wherein he stated that accused asked bribe of Rs. 8000/­ to make back date entries of the record on tracing the last forms.

47. This stand of the accused in cross examination also confirms his prior meeting with the complainant which contradicts to his stand that he never met Anand Bisht or any representative of the company. In cross examination, PW5 stated " it is wrong to suggest that accused was asking for 8 CT­1 forms from our company to show the compliance of quota regulations". "It is wrong to suggest that our MD and myself were bent upon to teach the lesson to accused because accused did not succumb to our demand of making back date entries of submission of documents by us and denied to release the bank guarantee to me". These suggestions itself suggests that accused met the complainant prior and asked him for 8 CT­1 forms, and then demanded money for making back date entries. This also reinforces the stand of the complainant that the money was demanded for back date entries. PW5 in cross examination also stated " I never asked the accused for back date entry but it was the accused who told that he had to make the back date entry as the documents submitted by us were not traceable". This all clearly suggests that accused met the complainant prior to 20.05.2009 (ie, date of trap) and asked for bribe on the pretext of making back date entries of 8 CT­1 forms. PW5 in cross examination also categorically stated that there is no question of deposit of 8 CT­1 forms and he had also shown the CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 23 to 60 acknowledgment of the same to the accused. Thus, in present facts and circumstances, despite the inability of PW5 to tell the exact dates and time of his meeting with accused in cross examination, it can clearly be inferred that PW5 met the accused prior to trap and accused made the demand on false pretext for making back date entries.

48. It is vehemently argued by Ld. Defence Counsel that accused has no authority to release the bank guarantee therefore he cannot make any demand. At this point, it is necessary to reproduce the note dated 15.05.2009 (Ex.PW4/B) prepared by the accused "the party vide their letter dt. 15.05.2009 has requested for cancellation of their bond No. 120/04­05 and release of BG for Rs. 1 lac. As the POEs in respect of all CT­1's issued to the party has been accepted, the bond may please be cancelled. Put up for perusal and approval.

        Initial of V.K.Sirohi ,                      Initial of Superintendent              initial of AC

          (15.05.2009, P­2)                                     (20.05.2009 P­3)            (20.05.2009, P­4)

49. Defence counsel submitted that as per this note accused only recommended cancellation of bonds and has no authority for release of bank guarantee. However, PW4 Ram Kishan in cross examination stated that cancellation of bond automatically means release of bank guarantee and it was not suggested to him that he is stating this fact wrongly, therefore, the stand of accused that he had no role in release of the bank guarantee is not tenable.

CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 24 to 60

50. The stand of the accused that he never met the complainant or any other official of the company got falsified as discussed above, and his consistent stand of asking questions in cross examination over 8 CT­1 forms to the complainant and other witnesses also suggests that he had met the complainant prior to trap proceedings. PW7 in cross examination stated "it is wrong to suggest that I was further told by the complainant that the office of accused had informed that the company of the complainant had not shown the proof regarding the obligation met in respect of earlier 8CT­1 forms issued". This suggestion to PW7 again reinforces the fact that complainant already met the accused.

51. At this stage it is pertinent to discuss that without 8 CT­1 forms submissions, the accused could not make the noting (Ex.PW4/B) of cancellation of bonds. Thus, from the consistent stand of the accused that complainant has not shown the 8 CT­1 forms also establishes the ground of the accused to make the demand for illegal bribe of Rs. 8000/­ for releasing of bank guarantee on the pretext that on receiving the same, he could say that now he has to make the back date entry.

52. Accused in his statement u/s 313 Cr.PC categorically stated that he has never met Anand Bisht or any other representative of M/s Alt Energy and it was only his Superintendent Ram Kishan who used to deal with them. The defence of the accused is that the complainant or other officials of M/s Alt Energy used to deal with PW4 Ram Kishan not with him, however, PW4 in his testimony nowhere stated that he CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 25 to 60 dealt with the officials of the complainant company. In cross examination, it is specifically put to PW4 by the accused that "it is correct that the complainant never met him in relation to letter Ex.PW4/X1 or for the release of bank guarantee." Though the stand of the accused is that only Ram Kishan (PW4) dealt with the complainant or officials of the company but this suggestion itself suggests that Ram Kishan never met the complainant, thus accused contradicting his own stand. This also reinforces the fact that PW4 is reliable and truthful witness. Furthermore, it is only accused who met PW5 not PW4 Ram Kishan and demanded bribe from him.

53. Ld. Defence counsel during arguments submitted that PW 5 improved in his testimony in court by stating that the accused demanded money for making back date entry of receiving of 8 CT­1 forms, whereas the said fact is not mentioned by PW5 in his complaint Ex.PW5/A. The complainant categorically stated in the complaint Ex.PW5/A that the accused demanded Rs. 8000/­ for release of bank guarantee, but in statement before the court he also stated that this demand of Rs. 8000/­ was made to make back date entry of 8 CT­1 forms, though 8 CT­1 forms were already on record. This in no manner could be set to be material improvement. This submission of PW5 only suggests ground over which the demand was raised. Furthermore, this ground fortified by the defence of the accused as taken in cross examination as well as in his statement u/s 313 Cr.PC.

CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 26 to 60

54. The depositions of PW 5, PW7, PW9 and PW11 categorically establishes the factum of demand of bribe of Rs. 8000/­ for releasing bank guarantee made by the accused, and the said fact was also reinforced by the defence of the accused as raised in cross examination as well as in his statement u/s 313 Cr.PC, despite the non admissibility of the tape recorded conversation recorded in audio cassette Q1.

55. Ld. counsel for the accused stated that accused could not demand the bribe of Rs.

8000/­ for releasing bank guarantee as accused has no authority to release bank guarantee. Furthermore, the bank guarantee cannot be released personally to the complainant or its company and it could be released only by the concerned bank. Ld. Counsel further submits that there is no question of release of bank guarantee because it was already expired. PW 4 Ram Kishan, Superintendent in his cross examination categorically stated that bank guarantee is to be released on the basis of the request of exporter after acceptance of proof of export by the Assistant Commissioner, and without compliance of the above mentioned condition the bank guarantee cannot be released even though expired. He also deposed that note Ex.PW4/B put up before him for release of bank guarantee by accused and accused was duty bound to put up the note for release of bank guarantee in accordance to the procedure being the Excise Inspector. Thus, as per cross examination of this witness the accused is duty bound to put up the note in accordance with procedure for release of bank guarantee. In view thereof, the stand of the accused that he is not in a CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 27 to 60 position to release bank guarantee is falsified.

56. The submission of Ld. Defence Counsel that there is no occasion for bribe of Rs.

8000/­ as the bank guarantee cannot be released personally to the complainant and same could be released only trough the concerned bank, has no force because the release of bank guarantee do not necessarily means the physical hand over of the bank guarantee but the direction to the bank to release the same.

57. It is again pertinent to discuss the defence of the accused regarding this 8 CT­1 forms. Accused in his statement u/s 313 Cr.P.C raised the plea that PW4 Ram Kishan asked him to call for copy of 8 CT­1 forms from the complainant company, however, as discussed above this plea was not found tenable and even not put to PW4 in his cross examination.

58. Another angle of bringing the plea of 8CT­1 forms into picture by accused also clear from the cross examination of PW8. The relevant cross examination in this regard is reproduced: "it is incorrect to suggest that I deliberately restricted the bribe amount currency upto the limit of Rs. 8000/­.

Q. I say that the bribe money was set to Rs. 8000/­ only to confuse the figure of '8' with 8CT­1 forms?

A. It is incorrect."

59. The genesis of these questions in cross examination has to be traced from the CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 28 to 60 verification conversation held between the accused and the complainant (PW5) wherein instead of Rs. 8000/­ the word '8' is mentioned. By raising this plea accused tried to set up the case that '8' mentioned in the conversation is meant for 8CT­1 forms and not Rs. 8000/­. At this juncture though the conversation is not found to be admissible but as factum of transcriptions incidently brought in cross examination by accused for his benefit, thus for proper appreciation of evidence, transcription of verification recording is reproduced as under:

Ex.PW5/H (25.01.2012) Transcription "Witness Mai D.K. Singh, UDC, Education Department, Old Secretariat Establishment Branch­01, AAj 20.05.09 Ko CBI Office, New Delhi se Bol Raha Hun.

         A:         Hello
         C          Hello Sirohi Sahab Namaskar. (Hello Sirohi Sir Namaskar)
         A          Namaskar
         C          Namaskar Sir Manoj bol raha hun Alt Energy se. (Namaskar sir Manoj speaking from Alt
                    Energy.)
         A          Alt Energy
         C          Manoj Bol Raha hun Alt Energy se (Manoj Speaking from Alt Energy.)
         A          Han Ji Han Ji. (Yes, Yes)
         C          Aya Tha na bank guaranteee ke lie ( I Came to you for bank guarantee.)
         A          Han Han Yad hai Yad hai. (Yes, Yes, I remember.)
         C          Boss aa gae hai bahar se, Monday ko bola tha, mai monday ko aa nhi paya.(Boss has

come from out side, told me to monday, I could not came on Monday) A Koi Bat Nhi (No issue) C Maine unko bataya jo apne Aath ki demand ki thi naa.(I have told him about your demand of eight ) A Han C Wo bole yar ye to bahut jayada he thoda kam karao. (He said demand is too high and try to make it down) A Nahi Yar C To maine unhe bataya sir, aath ke lie bola hai, aath se kam nahi ho rahe hai. (so I told him that sir, asking for eight and may not be less than eight.) A Han.

C To wo bole thik hai, fir wo khud hi mere sath milne ke lie apke pas aa rahe hai. Kis time tak aa jae apke pas? (So he said ok then he himself including me coming to you to meet CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 29 to 60 you) A Thodi der, abhi ke abhi aa jao ( After some time..... come now.) C Aap batao kab tak available hai, to mai fir aa jata hun. (you tell till what time you are available, then I will come.) A Aa jao sham tak, aa jao ( come till evening ) C To ek ghante mai aate hai sir aapke pas. (so sir will come to you within one hour) A thik hai, koik baat nahi. (Ok, no issue) C Thik hai OK A OK.

..................."

60. Thus, even from above conversation it cannot be held that accused was asking 8 CT­1 forms. The word 'Aath' here categorically denotes the demand which can be interpreted as Rs. 8000/­. However, it in no manner could be interpreted as 8 CT­1 forms. Thus, this defence of the accused of demand of 8 CT­1 forms is not at all tenable, on the other hand this infact reinforces the complainant case that accused demanded Rs. 8000/­.

61. From the evidence on record, it appears to be the explicit case of the accused that he never demanded the money but demanded 8CT­1 forms from the accused and this plea as already discussed is afterthought and false. However, at this stage it is pertinent to refer the cross examination of PW9 in which he stated, "It is wrong to suggest that the entire conversation was not transferred to audio cassette and only the part of the same was transferred. It is incorrect to suggest that the portion relating to the 8CT­1 forms was intentionally not transferred to the cassettes". This suggestion also has twofold implications, firstly that the defence of accused regarding demand of CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 30 to 60 8CT­1 form was not supported by any witness nor found support from any document ie, the relevant file seized in this case. On the other hand, this suggestion suggests that accused had a talk with the complainant which accused alleged to be for the purpose of 8CT­1 forms not for demand of bribe of Rs.8000/­. This infact, goes against the case of the accused because it is his explicit defence u/s 313 Cr.P.C that he had never talked to PW5 on mobile/telephone and denied the CDR record (Ex.PW2/B). Accused is blowing hot and cold in the same breath on the one hand he is stating that he never talked with PW5 complainant but on the other hand giving suggestions that portions of conversation relating to 8 CT­1 forms were intentionally not transferred in the cassettes which were prepared out of the conversation between him and PW5.

62. On overall appreciation of evidence, prosecution able to prove that accused demanded bribe amount of Rs. 8000/­ from complainant.

Acceptance of bribe

63. After recording of conversation of demand and preparation of verification report FIR in the present case was registered. Consequent to this trap team was constituted headed by PW8 Inspector Anand Swaroop (TLO), Inspector Prem Nath, SI Nikhil Malhotra, SI Pankaj Vats, SI Yogesh Kumar, Rama Shankar, DK Singh and other subordinate staff of CBI. The complainant produced Rs. 8000/­ of denomination of Rs. 500/­ (14 GC notes) and one currency note of Rs. 1000/­ denomination. A CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 31 to 60 demonstration of phenolphthalein powder was conducted on the notes, PW6 Rama Shankar was entrusted the duty of shadow witness and PW 7 DK Singh directed to remain out side with the trap team party, then trap team left to the office of accused V.K. Sirohi at ITO and before entering the building the DVR was in on position was handed over to PW5. Thereafter, PW5 with shadow witness Rama Shankar entered in the room of the accused at around 04:20 pm.

64. PW5 in his deposition stated that he kept the digital voice recorder in his front pocket and entered in the room no. 241 of the accused alongwith shadow witness Rama Shankar, thereafter wished the accused VK Sirohi who then came on his seat and asked him what his boss decided, then PW5 told him that he said his boss the amount cannot be reduced and one senior of accused VK Sirohi asked Rama Shankar from where he had come to which he replied he was from Education department then thereafter, VK Sirohi called the file, and by gesture demanded the money which was received by him under the table by his left hand and after counting the trap money stated "poore hai" and he replied "poore hai".

65. This witness has stated that at that time the senior of the accused is also present in the office. According to prosecution case PW4 Ram Kishan, superintendent, senior to the accused was also present. PW4 also examined before this court. Thus, in present facts and circumstances PW4 is found to be most natural and independent witness. PW4, in his examination in chief not stated the circumstance of entering of CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 32 to 60 complainant with shadow witness Rama Shankar however, stated that at around 04:15 pm CBI Inspector came in the office and caught accused VK Sirohi, and on his search an amount of Rs. 8000/­ was recovered from his pocket but in cross examination, he stated that "I formally asked the two persons sitting in our room from where they had come but at that time he was not aware that one person was the shadow witness and another was the complainant of the case. It is correct that shadow witness told that he had come from Education department but at that time I was not aware about the trap or he was the shadow witness." Thus the testimony of PW4 also supports that complainant entered with shadow witness Rama Shankar in the room. Though, he stated that he had not heard about any demand made by the accused but supported the prosecution case on the recovery of Rs. 8000/­ from the left side pant pocket of the accused.

66. PW6 Rama Shankar in his examination in chief categorically stated that he alongwith the complainant reached in the office of VK Sirohi where the 7­8 officials of CBI and DK Singh remained out side, and at that time apart from VK Sirohi, Superintendent Ram Kishan was also present and he told the Superintendent on asking that he was from Education department and accompanying the complainant. This witness in examination in chief, before being declared hostile not stated anything about the demand and acceptance of money by the accused, however, stated before being declared hostile that on the search of accused currency notes CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 33 to 60 were recovered from the pocket.

67. Both PW4 Ram Kishan and PW6 Rama Shankar not stated about the demand after entering, furthermore on being declared hostile PW 6 stated that he reached with the complainant in room no. 241 and conveyed his wishes to the accused and sat alongwith complainant on the chair, and complainant asked the accused for his work however stated that he do not remember whether the complainant asked the accused to reduce the demand, and also do not remember whether accused refused to reduce the demand, and also do not remember that complainant took out the money from the pocket of his pant, and gave to the accused. Further stated that he could not observe the complainant while giving the bribe amount as his attention was diverted towards the Superintendent present in the office. Thus both PW4 Ram Kishan and PW6 Rama Shankar are not found to have heard the factum of demand by the accused in the room, whereas PW5 categorically stated that he handed over the amount under the table on demand through gestures, however PW4 and PW6 confirms the presence of accused and the complainant, and recovery of the money from the pocket of the accused.

68. In the present circumstances, the question arose whether this court can rely upon the testimony of PW 5 complainant that he handed over the money on the demand of the accused. To resolve this issue the overall facts and circumstances including defence of the accused are to be appreciated.

CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 34 to 60

69. For the purpose of defence, accused examined DW1 Someshwar Thakur who deposed that in May 2009, he was posted at Import and General Commissionerate of New Custom House near IGI Airport and went to meet Ram Kishan Superintendent and met him around 03:45 pm, and at that time accused was also sitting in the same room and he do not know the accused prior to 20.05.09. It is pertinent to note that this witness stated to came to meet Ram Kishan however, no question was asked in cross examination of PW4 Ram Kishan that this person came to meet him. This DW1 stated that 2­3 people came in the room and one spoke to Ram Kishan and two sat down in the room and name of said person he later came to know as Manoj Saini, and he went out side with Ram Kishan and after speaking for 2­3 minutes came back and tried to give some papers to Ram Kishan, however Ram Kishan (PW4) directed him to give these papers to accused VK Sirohi, and while accused was flipping these papers some currency notes fell on the table. However, this fact was not put to PW4 and PW6 in their cross examination.

70. It is also the stand of the accused in his statement u/s 313 Cr.PC that accused on the direction of Ram Kishan given photocopies of 8CT­1 form to him and while flipping the same the currency notes fell on the table, but no question in this regard was asked from PW4 Ram Kishan and PW6 Rama Shankar, who were present in the room at that time as discussed above. This in itself create a severe doubt on the story of the accused that complainant handed over him the 8 CT­1 forms smeared with the CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 35 to 60 phenolphthalein powder and while flipping the 8 CT ­1 forms the notes fell down. This further created dent on the testimony of DW­1 Someshwar Thakur.

71. In cross examination, PW5 complainant categorically denied that he took copies of CT­1 forms on 20.05.2009 to the office of the accused, "it is wrong to suggest that I took the copies of CT forms on 20.05.2009 to the office of the accused". In cross examination, PW5 stated that he took out the trap money from his pocket and gave to accused which he accepted with hands. Accused made the signal to ask for the money from his hand. Accused asked "poore hain" then he told "poore hain". Three relevant questions in cross examination of PW5 are pertinent to be re­produced as under:

"Q. Is it correct that accused never asked for "8000 rupees" from me nor did he made any sign of gesture demanding the said money? A. It is correct to say that accused did not ask for "8000 rupees" but he asked for the money by signal as stated by me and further asked "poore hain" and I told "poore hain".

Q. What was the signal of the accused for the money/rupees?

A. As stated above, accused made the signal from his eyes and hands and it I understood that it was the signal about the demand of Rs. 8000/­ as earlier I had talked to accused over the phone and told him that I was coming to pay Rs. 8000/­. Q. I say that the signal you are showing to the court is not for demanding money but it was to show the gesture by the accused as to why you are here which you wrongly interpreted that he is demanding the money?

A. It is wrong to say that accused gave the signal to convey that why I was there. As I had gone to the office of accused after talking to him over the phone to pay amount of Rs. 8000/­. In the circumstances the meaning of the signal was only in respect of the money and I correctly understood the signal".

72. This witness PW5 categorically stated that accused has not asked Rs.8000/­ but asked the money by signal and further asked poore hain which he told poore hain, CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 36 to 60 further stated that the signal was given by eyes and hands, and it was understood that signal was about the demand as he had earlier talked to him. The next question is very pertinent wherein the accused stated that the signal is not for demanding money but it was to show the gesture by the accused as to why he was here and which he wrongly interpreted that accused is demanding money. By asking this question, the accused atleast have admitted that he had made gestures. However, PW5 categorically stated that he had gone there after talking on phone and signal was given only in respect of the money and he correctly understood the signal.

73. Ld. defence Counsel during arguments submitted that the accused in his statement u/s 161 Cr.P.C and in examination in chief not stated anything regarding demand by gestures, however improved this in cross examination. On considering the totality of the facts and circumstances, it cannot be inferred that accused had not demanded the money by gestures, especially in the circumstances when in cross examination accused himself stated the signal/ gestures is only for the purpose, why PW5 was there in the office. In these facts and circumstances, a little improvement here and there do not create the dent on the prosecution story that on the demand of accused money was handed over to him by PW5. On the other hand, accused defence found to be complete false over the scenario of handing over of 8 CT­1 forms and money falling out of the 8 CT­1 forms.

74. Prosecution thus able to prove beyond reasonable doubt that accused accepted bribe CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 37 to 60 money from PW5 after demand.

Recovery of tainted money from the pocket of the accused

75. PW4 Ram Kishan and PW6 Rama Shankar categorically stated that a sum of Rs.

8000/­ was recovered from the pocket of the accused. PW4 stated that it was recovered by one D.K. Singh. PW5 also stated in cross examination that immediately after entering the room one of the officials of the trap team caught the wrist of accused and told that he is from CBI and accused V.K. Sirohi could not put his hand in the pocket. This witness in cross examination again stated that tainted money was recovered from left side of pocket of pant of the accused. PW6 Rama Shankar in his examination in chief before being declared hostile has also stated that after signal of the complainant CBI officials came inside and recovered the money from the pocket of the accused however, not specifically stated that it was recovered by D.K. Singh but stated that CBI officers recovered the same. PW7 D.K. Singh stated that he took out the GC notes from the left side pocket of pant of the accused. PW8 and PW9 also stated that the notes were recovered from the left side pocket of pant of the accused. Thus, on overall consideration of the testimonies of PW's, it is established that currency notes were recovered from the left pocket of pant of the accused.

76. Now, it is pertinent to discuss the stand of the accused. Accused as already discussed stated that while flipping the 8 CT­1 forms currency notes were fell on the table and 8 CT­1 forms were smeared with the phenolphthalein powder. Accused in his CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 38 to 60 statement u/s 313 Cr.P.C stated that after currency notes fell on the table, then some other CBI officers barged into the room and commotion was created. This explanation appears to not plausible if the CBI officers already present then how the others will barge without their signal and this in itself suggest that no CBI officers were present at the time of demand. Furthermore, at this stage the accused must have known the names of CBI officers but has not opted to give the name of CBI officers either in his statement u/s 313 Cr.P.C or in the cross examination who were alleged to be present in the room. He further stated in his statement u/s 313 Cr.P.C that he was scared as CBI officers caught hold his hands, fingers and by neck and asked him to come to another room, thereafter in another room they beat him and asked to hold the tainted currency and white powder in his hands and then asked him to take off his trousers and gave him one track pant to wear.

77. Thus, the stand of the accused is that the tainted money was thrusted into his pocket in another room by the CBI officers, however he has not put this question in cross examination of PW4, PW5 and PW6 or PW7. PW4 Ram Kishan who is associated in the recovery proceedings categorically stated that the notes were recovered from pocket of accused in the room where he and accused were sitting and nowhere stated that the money was thrusted by CBI officers into his pocket. It is not suggested to this witness, who appears to be most natural witness to the incident that accused was taken to another room where the money was thrusted. It was not suggested even to CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 39 to 60 PW5, PW6 and PW7 that he was taken to another room where the money was thrusted in the pocket by the CBI officials.

78. However, in cross examination, it was suggested to PW5 that CBI officials planted Rs.8000/­ upon the accused and when he objected and protested commotion took place during this period but this suggestion was denied by PW5. As per this suggestion, the rupees 8000/­ was planted by the CBI officials in the room from where he was apprehended, whereas as per the stand taken in statement u/s 313 Cr.P.C accused submitted that the rupees 8000/­ were planted in another room. This itself creates doubt over the version of accused over his allegation of planting of Rs. 8000/­ and reinforces the prosecution story that it was recovered from the left side pocket pant of the accused after acceptance of same.

79. Furthermore, another stand was also taken by the accused, in cross examination.

PW5 stated "it is wrong to suggest that GC notes recovered from the possession of the accused during the trap were not the same currency notes as were used for the trap and the said currency notes belongs to the accused but were falsely shown as trap money". This suggestion gives another version of the accused that the trap money recovered was his own money. Furthermore, this suggestion was not put by the accused to PW4 or any other witness. However, from this suggestion, two things can be inferred that the money was not thrusted, secondly it was recovered from his pocket. PW7 categorically denied that complainant had handed over certain CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 40 to 60 documents/ papers to the accused as he was required to hand over 8 CT­1 forms and re­affirmed that currency notes were recovered from the pocket of the accused. It is nowhere suggested to this witness or PW4 or PW6 that the money was thrusted into the pocket of the accused by CBI officials. Hence, on considering the overall facts and circumstances, prosecution able to prove that bribe amount of Rs. 8000/­ was recovered from the pant of accused.

80. Thus, on overall appreciation of evidence, prosecution able to prove the factum of demand, acceptance and recovery of bribe money from accused.

Motive

81. Accused in his statement u/s 313 Cr.PC categorically stated that he was falsely implicated in present case by PW11, PW5 and Anand Bisht in collision with some of his colleagues due to professional jealousy. However, accused could not substantiate this fact either though his statement u/s 313 Cr.PC or through defence evidence. PW4 Ram Kishan was throughly cross examined by the accused however, no question was put to him that PW 4 trying to implicate him due to any professional jealousy in connivance with the complainant and other persons. It was also not suggested to PW4 that accused was falsely implicated due to professional jealousy of some other officials of the Excise Department. Nothing came on record also, which could throw light over the motive of the complainant or any other police officials to falsely implicate the accused for present bribe case. From the evidence on record, no motive CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 41 to 60 could be attributed to PW5 or PW11 to go to CBI for false implication of the accused. There is nothing to suggest why the accused is particularly chosen from the entire excise department. On the other hand as already discussed the complainant cogently explained the circumstances and purpose of the bribe, as demanded by the accused. Phenolphthalein powder

82. It has come in the testimony of witnesses that after recovery of Rs. 8000/­ from the pocket of the accused, hand washes of the accused as well as trouser wash of the left side pant pocket was taken and the solution was turned pink. PW 4 in his cross examination also stated that hand washes were also taken at the spot. Nothing suggested to this witness that hand washes were not taken at the spot/ room from where the accused was apprehended. Thereafter the bottles were sealed and sent for chemical examination. PW1 V.B Ramteke, Senior Scientific Officer categorically stated that he analysed the contents of the bottles and the contents gave positive test for the presence of phenolphthalein in all three bottles. Ld. Defence Counsel raised the plea that accused in his report ExPW1/A nowhere stated that he has prepared the report himself. The report bears the signature of PW1. PW1 in his cross examination also stated that he prepared the report himself, therefore there is no force in the submission of Ld. Defence counsel that this report was not prepared by PW1. PW1 after through examination categorically denied suggestion that the presence of phenolphthalein powder is doubtful. Nothing substantial came in cross examination CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 42 to 60 to discredit the report of PW1. The report Ex.PW1/A and the testimony of PW1 clearly establishes the presence of phenolphthalein powder on the tainted currency notes recovered from the left side pant pocket of the accused, thus prosecution able to fortify its case that money was recovered from his pocket.

Sanction for prosecution

83. PW3 Anoop Kumar Srivastava deposed that being Commissioner Central Excise he was competent to grant sanction in cases of Inspector, central excise for prosecution u/s 19 of PC Act. Accused V.K. Sirohi was working as Inspector, central excise, at relevant time, therefore PW3 is competent to grant sanction for prosecution against him. He further stated that after going through the copies of FIR, statement of witnesses, recorded conversations and other documents, he accorded sanction. Sanction order Ex. PW3/A dated 25.03.2010 categorically shows that this witness considered the contents of FIR, pre verification recordings, pre trap and post trap proceedings and thereafter, upon considering the material placed before him granted the sanction.

84. Ld. Defence counsel submitted that this witness neither called the original file with which the accused was dealing as Excise Inspector in office neither stated anything regarding the competency of the accused for return of bank guarantee. Nor stated anything about the transcripts and even does not remember exactly how many tapes were sent to him by the CBI, thus it can be inferred that the has not applied his mind CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 43 to 60 correctly in granting the sanction order.

85. PW3 is found to be competent to grant the sanction and considered the relevant material collected by the investigating agency during investigation before granting sanction. Neither from his testimony nor from the sanction order it can be inferred that he has not applied his mind. The factum of not calling of file dealt by the accused or the service record of the accused do not mean that he had not applied his mind. Though, there is no typed date mentioned in the sanction order, however with signature he duly mentioned the date of sanction order i.e, 25.03.2010, therefore the plea of defence counsel that the sanction order do not bear even the date is of no value. Considering the statement of PW3 and the sanction order Ex.PW3/A, the prosecution able to prove the valid sanction for prosecution u/s 19 PC Act obtained from the competent authority for prosecution of the accused in present case. Inaudible Audio cassette Q­2

86. Ld. Counsel for the accused raised a plea that PW10 in his report Ex.PW10/B categorically stated that "no common clearly audible sentences/words of Sh V.K. Sirohi could be detected in the questions cassettes marked Q­2 with respect to the specimen voice of V.K. Sirohi recorded in the cassette mark Ex. S­1 as the question recorded conversation contained in audio cassette marked Ex. Q­2 is indiscernible due to highly interfering background noise, hence the same could not considered for CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 44 to 60 auditory and voice spectographic examination " Ld. Defence counsel submits that as Q­2 is not audible, therefore the entire base of the prosecution case goes and prosecution thus not able to prove its case. To substantiate his plea he relied upon the case titled "Sanjaysinh Ram Rao Chavan Vs. Dattatray Gulabrao Phalke & Ors, 2015 (3) SCC 123".

87. Though, as already discussed Q­2 is inadmissible, but to properly appreciate the submissions of the defence counsel, let me go through the testimony of PW5. PW5 during testimony before the court was confronted with the audio cassettes Q­2. The portion A­26 to A­40 of transcription deals with the conversation recorded in Q­2 cassette. To properly appreciate the relevant testimony of PW5 is reproduced as under :

"Portion A26 to A26 reflects the name of the speaker Sh Rama Shankar, though I am not able to identify his voice.

Portion A27 to A27 reflects the name of speaker Sh D.k. Singh though I am not able to identify his voice.

Portion A28 to A28 is the portion where there is unidentified voices and disturbance. Portion A29 to A29 is in my voice.

Portion A30 to A30 is not identified by the witness, though the audio cassette played twice.

Portion A31 to A31 is in the voice of accused Portion A32 to A32 is in the voice of accused. Portion A33 to A33 is not identified.

Portion A34 to A34 is not identified.

Portion A35 toA35 is not identified.

Portion A36 to A36 is in the voice of shadow witness Rama Shankar. Portion A37 toA37 is not identified.

Portion A38 to A38 is in the voice of Rama Shankar. Portion A39 to A39 8is in my voice.

Portion A40 to A40 is in the voice of accused. Thereafter, there are telephone range and disturbance. It is observed that conversation from portion A26 to A40 is overlapped and lost in disturbance and other voices. This portion of the audio cassette has been played before CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 45 to 60 the witness number of times and then he was able to identify few portion mentioned above whereas other portion could not be identified. Despite playing the audio cassette repeatedly, I could not understand the conversation and its contents clearly in respect of the portion A26 to A40 as the voice of the relevant speakers is lost and overpowered with the other voices and disturbance".

88. From the above testimony of PW5, it can be inferred that with great difficulty he can identify the voices of accused and Rama Shankar to certain extent, however the Ld. Presiding officer observed that despite playing the cassette he could not understand the conversations clearly. Thus, from the report of PW10 and from above observation of the court, it can be inferred that the voices in cassette Q­2 are not clearly audible. However, it cannot be held merely on this basis entire case of the prosecution collapses. The prosecution can prove its case from the oral testimony of the witnesses and through other facts and circumstances. The case of Sanjaysinh (supra) as relied by the defence counsel is to be seen in the particular set of facts and circumstances of that case. In that case, the closure report was filed by the police which was accepted by the Magistrate, however High court reversed the order in revisional jurisdiction. Apex court held that there is no allegation of any demand by the appellant and it was only against the accused no. 2, furthermore, the panch witnesses have not heard the conversations and even the voice is inaudible, therefore the entire crux goes and super structure also falls. In that case there is no demand by the appellant and panch witness also not found to be present at the time of recording , thus the inaudibility of the voice makes the case against the appellant unreliable. CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 46 to 60 However, in present case the prosecution able to prove the allegations of demand, acceptance and recovery despite inaudibility of cassette Q­2, and this judgment do not mandate that in case of inaudibility of cassette, other evidence cannot be relied upon by the court. Thus, in present facts and circumstances, the above mentioned case of Sanjaysinh Ram Rao Chavan (supra) is of no help to the accused. Other pleas

89. Ld. Defence Counsel submitted that there is material inconsistency in the statements of the witnesses over factum of reaching the place of occurrence. Though there found to be minor inconsistencies in the statement of witnesses over the timing of leaving the office of CBI and reaching the spot, further minor inconsistency over the factum whether passes were prepared for entering the CR building etc but these inconsistencies are peripheral in nature and does not hit the core of the allegations.

90. Moreover, these inconsistencies fades into insignificance because of the defence of the accused. In defence, accused do not dispute the occurrence of trap proceedings, and in this regard also examined his own defence witness DW1. Hence, the inconsistency of timings and manner of reaching place of occurrence as deposed by the prosecution witnesses becomes insignificant. DW1 himself stated he reached the office to meet PW4 ram Kishan at around 3.45 pm and witnessed the incidence. As per prosecution case, the incident took place at around 4.15 to 4.30 pm. DW1 in cross CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 47 to 60 examination also stated that he remained there till around 4.30 pm. Thus, no benefit could be accorded to the accused in present facts and circumstances over the inconsistencies in the timing of reaching spot and over the means and the manner how they reached the spot ie, CR building etc.

91. Ld. Defence counsel vehemently argued that PW5 is not at all reliable witness as prosecution not able to prove that he was working as an Accountant in the office of M/s Alt Energy and authorised to deal with the Excise department.

92. PW5 in his statement categorically stated that he worked with Alt Energy as Accountant from year 2002 to 2009 and on the directions of MD went to the Excise department and talked to the accused. PW11 Sheetal Prasad Singh MD of the company also stated that PW5 was working in their company as an Accountant and dealt with accused V.K. Sirohi. From the testimony of PW5 it cannot be inferred that he was not working in the said company. He able to give the details of employees like Anand Bisht and one more Manoj Kumar. Mere non production of any appointment letter has no adverse effect in present facts and circumstances. The submissions of the defence counsel that PW5 working as a liaison officer to extract money from government officials has no basis. This witness duly accompanied with MD of the company conducted the entire proceedings, and in no manner could be held to be not working in the complainant company ie M/s Alt Energy.

93. Ld. Defence counsel submitted that PW7 D.K. Singh in his testimony categorically CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 48 to 60 stated that at the time of demand CBI officials were already present in the room of the accused, therefore entire trap proceedings got falsified. It is settled principle of appreciation of evidence that this court has to appreciate the testimony of the witness in the background of totality of facts and circumstances. Witnesses cannot state the facts in the mechanical manner and the mistake is bound to happen in the testimony of the witnesses. It is natural that minor variations and contradictions bound to happen in the testimony of the witness. This PW7 categorically stated in his statement that he was outside the room when the transaction took place and nowhere stated that the money was thrusted into the pocket of the accused. He also denied the suggestions of false implication of the accused. He further denied the suggestions of the accused that the 8CT­1 forms were presented by the complainant smeared with phenolphthalein powder. Furthermore, PW4 Ram Kishan categorically stated that the police officials came lateron and initially only PW5 and PW6 were sitting in the room. PW6 nowhere stated that CBI officials were present when the money handed over by the accused. In these circumstances, the minor contradiction in the statement of PW7 that CBI persons were sitting with the complainant prior to accused apprehension is of no value. The accused could not be granted any benefit out of this inconsistency. On the other hand, these kind of minor contradictions reinforce the truthfulness of the witness. This witness (PW7) categorically supported the prosecution case from initial to the final stage ie from pre trap to post trap CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 49 to 60 proceedings.

94. Ld defence counsel also took the plea that his stand that accused was taken to the another room was firstly fortified by DW1 then from the statement of PW9 Nikhil Malhotra who stated that the entire proceedings was conducted in room no. 201. This submission do not appear to have any force in the totality of facts and circumstances, firstly DW1 nowhere stated that accused was taken to room no. 201. PW9 Nikhil Malhotra though stated that the room where the trap was conducted is room no. 201 however, he also stated that he do not remember whether it is 201 or 241. Furthermore, he nowhere stated that accused was taken from his room to another room. It is always possible to give the wrong number of the room. These kind of variations are natural and in no manner has any effect considering entire facts and circumstances. The accused cannot claim any benefit of these variations because none of the other witness stated that it was room no. 201 from where the accused was apprehended. All the witnesses are consistent over the factum of apprehension of the accused from his room (ie, 241) not any other room.

95. Ld. Defence counsel also stated that prosecution story also falsified from the fact that site plan do not show the name of the shadow witness and furthermore, PW6 Rama Shankar (shadow witness) is shown to be standing outside the room. PW6 Rama Shankar in his statement before the court categorically stated that he was sitting with the complainant at the time of incident. PW7 D.K. Singh also stated that CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 50 to 60 he was outside the room when the transaction took place. PW4 also stated that PW6 Rama Shankar was sitting with the complainant at the time of transaction and there was conversation took place with him that he was from Education Department. In these facts and circumstances, this kind of mistake in site plan has no bearing on the case of the prosecution. Even otherwise, TLO (PW8) was not specifically confronted over this mistake.

96. Ld. Defence counsel also took the plea that GC notes alleged to be recovered from the pocket of the accused are not produced before the court. However, this plea has no basis because PW5 in his testimony identified the currency notes produced and tallied the distinguished numbers with the numbers of currency notes mentioned in the handing over memo Ex. PW5/C.

97. In this case, PW5 Ram Kishan Superintendent is found to be most natural witness and his entire testimony appears to be natural and credible. Nowhere, it appears that he has any malafide against the accused. In cross examination, he supported the accused over his conduct and his previous record, even explained the entire procedure relating to payment of excise duty by the exporters. His testimony remained unchallenged over the facts he deposed. His testimony supported the prosecution case over the presence of PW5 and PW6 in the room prior to entering of CBI officials. He also supported the prosecution case over the recovery of bribe amount from the pocket of the accused. It was not even suggested to this witness that the amount of CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 51 to 60 thrusted into accused pocket by the CBI. No question was asked to this witness that he was supporting prosecution case due to ill­will with the accused. This witness provide the independent corroboration to the prosecution case which otherwise normally proved through the trap team members including independent witnesses and the complainant, thus provided more credibility to the prosecution case.

98. Ld. Defence counsel vehemently submitted that as both the independent witnesses ie, PW6 and PW7 are from the same education department, therefore cannot be treated as independent witnesses and prosecution case is liable to be disbelieved on this ground alone. Ld. Counsel for the accused in this regard relied upon he judgment of apex court in case titled, "G.V. Nanjundiah Vs. State, (Delhi Administration) AIR 1987 SC 2402". I have gone through this judgment, in the particular facts and circumstances apex court observed the witnesses from the same department cannot be said to be independent witnesses. However, from this judgment it cannot be inferred that it is the rule of law that the independent witnesses cannot be from the same department. The word 'independent witnesses' is well explained by the apex court in case titled "State of UP Vs. Zakaullah dated 12.12.1997, AIR 1998 SC 1474", wherein it is observed that every citizen of India must be presumed to be an independent person until it is proved that he was dependent upon the police or other officials for any purpose whatsoever. Furthermore, from the testimony of PW6 & PW7 it cannot be held that they do not fall in category of independent witness and CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 52 to 60 were deposing or associated in the proceedings under pressure of CBI officials.

99. Ld. defence counsel also submitted that the crucial trap member ie., Inspector Prem Nath who alleged to have given the demonstration over the effect of phenolphthalein powder on GC notes and SI Pankaj Vats who caught the wrist of the accused were not examined before the court and their non examination is prejudicial to the accused. It is a settled proposition of law that it is a quality of evidence not the quantity of witnesses which matters for appreciation of evidence. There is no statutory obligation over prosecution to examine all the witnesses of the trap, however in a given fact situation if the court finds that non examination of the witnesses have adversely effected the prosecution case then the accused can be given benefit of the same. However, in present case all the relevant circumstances of demand, acceptance and recovery of bribe, presence of phenolphthalein powder on GC notes etc., are credibly proved through the witnesses examined in the court, thus the non examination of the witnesses as alleged by the defence counsel is in no manner held to be prejudicial to the accused.

100. Ld. Defence counsel submits that the entire trap proceedings were malafide because PW11 Sheetal Prasad Singh MD of M/s Alt Energy was known to Inspector Anand Swaroop. Ld. Counsel submits that due to this reason though PW11 Sheetal Prasad Singh remained present during pre trap and post trap proceedings but was not shown as a witness to these stages. He is neither shown the witness in verification CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 53 to 60 recording (Ex.PW5/B) nor in the recovery memo (Ex.PW5/C).

101. Though, from the testimony of independent witnesses it could be gathered that PW11 was also present at the time of post trap proceedings, however in present facts and circumstances not citing him as a witness cannot be held malafide on the part of IO. This in no manner could discredit the evidence produced on record by prosecution regarding demand, acceptance and recovery of money from the accused. These type of defects are part of the investigation and merely on the basis of these defects which in no manner could found to be prejudicial to the case of the accused, no benefit to be accorded to the accused. Thus, despite these lapses the accused cannot be given any benefit, and these lapses themselves do not suggest that CBI is interested in falsely implicating the accused at the instance of PW11, particularly keeping in view the present facts and circumstances of the case as already discussed.

102. Ld. counsel also pleaded that no formal arrest memo was prepared for the arrest of the accused. It is observed in the testimony of PW7 that arrest is made part of the recovery memo Ex. PW4/D. In these facts and circumstances, non preparation of separate formal arrest memo is in no manner appears to have dented the prosecution story.

103. Ld. Defence counsel also submitted that PW5 in his statement stated that MD of their company had received a telephonic call from accused V.K. Sirohi. Ld. Counsel submits neither the CDR (Ex.PW2/B) shows that any call was made by the accused CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 54 to 60 to PW11 nor PW11 could state anything regarding that call. The evidence as already discussed categorically shows that PW5 met prior to the conduct of trap proceedings and a demand was made by the accused for releasing bank guarantee. Thus, in totality of facts and circumstances this kind of exaggeration do not have any adverse effect on the veracity of prosecution case as a whole.

104. Ld. defence counsel also pointed out that there is a discrepancy in the prosecution evidence over the recovery of the notes from the pocket pant of the accused. PW9 in examination in chief stated that the notes were recovered from left pant pocket whereas in cross examination stated that it was recovered from the right pant pocket. Ld. Counsel also submitted that there are contradictions in the statement of witnesses who gave the signal after the acceptance of bribe amount by the accused. Ld. Counsel also submitted that there is a contradiction of handing over of money to the accused, PW5 stated he has given the money under the table whereas PW7 stated that accused was standing when the money was given. On overall appreciation of the statement of the witnesses and the recovery memo, the notes were found to be recovered from the left side pant pocket. In these type of trap cases which are very situational in nature and where the number of witnesses are involved and the examination of the witnesses happens before the court long after the incident, these discrepancies are bound to happen, however in present facts and circumstances these discrepancies itself do not have any impact upon the veracity of prosecution case considered as a whole. Apex CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 55 to 60 court in Zakaullah case (supra), also found these are flippant grounds which should never have merited consideration.

105. Ld. Counsel also raised the contention that prosecution have not even examined IO Raj Singh who presented the charge­sheet. IO Raj Singh in present case found to be not available during the proceedings as proceeded to UN Mission to Liberia on deputation and this court vide order dated 06.04.2015 granted opportunity to prosecution to lead secondary evidence with regard to role of IO Raj Singh. Prosecution examined PW9 regarding the documents prepared by the IO. The non examination of IO in present facts and circumstances is not found to be prejudicial to the accused.

106. Ld. Counsel also raised the plea that PW8 Anand Swaroop (TLO) in examination in chief on 07.08.2013 not stated that he was TLO and heading the trap team, however improved lateron in his examination in chief on 02.02.2015 and stated that he was TLO and headed the trap team. Ld. Defence counsel submits that PW8 Anand Swaroop not proceeded to the spot. This submission has no force. PW8 as TLO prepared handing over memo, recovery memo. Other witnesses also categorically stated that Anand Swaroop was TLO who proceeded to the spot. In examination in chief he nowhere stated that he was not the TLO. The entire evidence on record categorically suggests that PW8 Anand Swaroop acted as a TLO and conducted the entire trap proceedings.

CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 56 to 60

107. As already discussed the variations and the contradictions pointed out above by the Ld. Counsel of the accused are not material and do not hit at the core of the allegations in the case. It is settled law that testimony of the witnesses are required to be considered as a whole in the entire facts and circumstances of the case. Testimony of natural witness is bound to suffer from contradictions and variations every witness of the same incidence cannot narrate the incidence in the same words. Apex court in Sat Paul Vs. Delhi Administrative (1976) 1 Supreme court cases 727 held that "generally trap witnesses are the interested witnesses. Though there is no absolute rule that evidence of interested witnesses cannot be accepted without corroboration, but where witnesses have poor moral fibre and history of bad antecedents with a positive motive to harm accused, it would be hazardous to accept the testimony in the absence of corroboration from independent sources". Even if it is presumed that the trap witnesses are interested witnesses, however on that aspect alone there testimony cannot be thrown over board and even their testimony can be accepted without corroboration. However, in present case there is ample corroboration in the testimony of the witnesses over the factum of demand, acceptance, recovery of bribe. None of the witnesses have any criminal background and found to be respectable citizens and govt officials. Nothing came on record that they were having any kind of animosity towards the accused. On the other hand the CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 57 to 60 complainant company is found to have been harassed by the accused even for doing the legal work. The minor inconsistencies and contradictions are bound to happen in present kind of cases, therefore, as a matter of precaution and rule of prudence, corroboration is required, in present case there is ample corroboration between the testimonies of the witnesses over the factum of demand, acceptance and recovery of bribe amount.

108. It is settled proposition of law that prosecution has to prove the guilt of the accused beyond reasonable doubt and no benefit could be given to the prosecution on mere false defence of the accused. Prosecution has to stand up on its own leg. However, if the defence of the accused reinforce the case of the prosecution then the prosecution can always use it in its favour. The burden of proof always remains on prosecution, but onus of proof keeps on shifting over various circumstances depending upon the explanations of the parties. Accused unable to prove its defence even on the touchstone of preponderance of probability. Accused defence even otherwise as already discussed found to be totally false and imparted impetus to prosecution in strengthening its case.

109. Apex court in "Inder Singh Vs. State (Delhi Admn.), (1978) 4SCC 161", observed that proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human process. In "Shradul Singh Vs. State of Haryana, (2002) 8 SCC 372", the apex court, CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 58 to 60 sounding a note of caution against demand of implicit proof in a criminal case, observed that there cannot be a prosecution case with a cast­iron perfection in all respects and it is obligatory for the Courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. The concept of reasonable doubt was further explained by apex court in "Sucha Singh Vs. State of Punjab, AIR 2003 SC 3617", to the effect that reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. Therefore, in view of the above judgments, this court is obliged to apply the rule of proof beyond reasonable doubt with objectivity and pragmatism. This court cannot discredit the prosecution case on minor inconsistencies and contradictions and has to evaluate the entire case in the totality of the facts and circumstances. Mere embroideries, exaggerations and minor contradictions in the statement of witnesses is no ground to grant the benefit of reasonable doubt to the accused.

110. On overall appreciation of evidence on record, the prosecution is able to prove its case beyond reasonable doubt that accused first demanded then accepted bribe amount of Rs. 8000/­ from the complainant which was duly recovered from his possession during the trap proceedings. Accused miserably failed to rebut the CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI, Page No. 59 to 60 obligatory presumption u/s 20 PC Act.

111. In view of the above findings, it is established beyond reasonable doubt that the accused V.K. Sirohi, Inspector, Excise Department demanded and accepted illegal gratification of Rs. 8000/­ from the complainant for release of bank guarantee. Accused is therefore, found guilty of offences punishable under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act 1988 and is convicted accordingly.

Announced in the open Court
on this 11th day of September, 2015                                         (AJAY KUMAR JAIN)
                                                                          Spl. Judge (PC Act)/CBI­01
                                                                        Patiala House Courts, New Delhi




 CBI Vs. V.K. Sirohi, CC No. 07/12, Case ID No. 02403R0098252010, RC No. 26(A)/09/CBI/DLI,                Page No. 60 to 60