Delhi District Court
State vs . Ajay Mann on 30 January, 2020
1
IN THE COURT OF SH. DIG VINAY SINGH : SPECIAL JUDGE (PC ACT)
(ACB)-02, ROUSE AVENUE COURTS, DELHI
In re :
CC No. 145/2019
State Vs. Ajay Mann
FIR No. 37/2009
P.S Anti Corruption Branch
U/s 7 & Sec. 13(1)(d) r/w Sec. 13(2) of PC Act, 1988
CNR No. DLCT11-000630-2019
State
Vs.
Ajay Mann
S/o Late Sh. Salekh Singh
R/o C-36, West Jyoti Nagar,
Shahdara, Delhi.
Date of institution : 10.04.2018
Date of arguments : 28.01.2020
Date of judgment : 30.01.2020
JUDGMENT
1. The sole above named accused was sent for trial u/s 7 and Section 13 of Prevention of Corruption Act 1988, for allegedly demanding Rs. 50,000/- and accepting Rs. 15,000/-.
2. Prosecution claims that on 18.11.2009, complainant Gopal Krishna Sharma came to Anti-Corruption Branch of Govt. of NCT C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 1 | 65 2 Delhi and gave a written complaint in which he alleged that HC Ajay Mann (Accused) was demanding bribe. At the relevant time the accused was Head Constable in Delhi police, posted in PS Vivek Vihar. In the complaint, it is alleged that one Nirmala Choubey lodged a complaint in PS Vivek Vihar against the complainant, Sh. Sapan Kumar Jain (friend of complainant) and few others, and the accused was inquiring / investigating the said complaint. Initially, Sapan Jain told the complainant that the accused was demanding bribe. The complainant also came to know that the accused told Sapan Jain that in the complaint by Nirmala not only Sapan was named but also the complainant, one Ajay Bhaduria and, one Mukesh Jain had been named. The accused allegedly demanded Rs.50,000/- each from the offenders named in that complaint of Nirmala. The complainant took mobile number of the accused from Sapan Jain and spoke to the accused telephonically on 17.11.2009 and told the accused that he had no concern with the complaint given by Nirmala. Upon it, the accused allegedly told the complainant that he was involved in that case and until the complainant pays Rs.50,000/- to the accused, he cannot escape from the case. When the complainant expressed his inability to pay that much amount, the accused finally agreed to accept Rs.15,000/-.
2.1. The complaint was assigned to Insp. Nand Kishore. A panch witness namely Arun Kumar was called in the ACB office and a raiding team was organized. The complainant had carried along C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 2 | 65 3 cash Rs.15,000/- in the denomination of seven notes of Rs.1000/- each and 16 notes of Rs.500/- each. The number of those currency notes were noted down in the pre-raid proceedings. The raid officer Insp. Nand Kishore (RO) demonstrated the characteristics of phenolphthalein powder after applying the same on the notes and instructed the panch witness to remain with the complainant at the time of demand and payment of bribe. Initially, the accused had called the complainant for payment of bribe in the factory of Sapan Jain. The raiding team comprising Insp. Nand Kishore, Insp. MC Meena, SI Karnail Singh, SI Anil Kumar, HC Krishnadasan, Ct. Jaya Krishnan, Ct. Mohanan along with the complainant and panch witness left for the spot, in two private vehicles DL-1YA-1033 and DL-1YA-0089. The raiding team decided to go to office of complainant located at 488/5, Dilshad Garden Delhi and wait there for call from the factory of Sapan. The raiding team reached the office of complainant at 1.15 p.m. 2.2. At about 2.50 p.m., the complainant received two calls on his mobile No. 9213632824 from the mobile of his friend namely Sapan Jain No. 9818298278, in which Sapan told the complainant that the accused had told Sapan that he would not accept money directly from the complainant. But the complainant, under guidance of the investigating agency, insisted that he would pay the amount to the accused himself. Sapan then called the complainant to his factory after 15-20 minutes. Thereafter the raiding team started proceeding towards the factory of Sapan. The C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 3 | 65 4 complainant also took along his own Wagon-R Car no. DL-2C AF 3987, along with two other vehicles of the raiding team. In the car of the complainant, the panch witness, the complainant and, SI Karnail Singh traveled and at that time SI Karnail was carrying one voice recorder. Rest of the raiding team left in other two vehicles. While on way to factory of Sapan Jain, the complainant told the Raid officer (RO) that Sapan has telephonically told complainant that accused does not wish to meet them in the factory of Sapan and he want to meet near a Fast Food Vehicle at Surajmal Vihar Park. At 03.35 p.m., SI Karnail handed over the voice recorder to the panch witness after turning it on and SI Karnail left the car of the complainant and sat in the vehicle of RO.
2.3. At 03.40 p.m. Insp. M.C. Meena was left with both vehicles of raiding team, a little distance away from the designated meeting spot, and rest of the raiding team took position. After about 10-15 minutes, two persons came on a scooter and spoke to the complainant. They were Sapan Jain and Ajay Bhaduria. Both of them were known to the complainant and also named in that earlier complaint of Nirmala. At 04.05 p.m., accused called on the mobile of Sapan and told Sapan that he was present at Jhilmil chowk and asked Sapan to send someone to pick him up. Ajay Bhaduria went and brought the accused on his scooter, but the complainant was signaled by Ajay Bhaduria to come little distance ahead and accordingly the complainant and Sapan started proceeding forward in the car of the complainant. The raiding team C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 4 | 65 5 also followed them in their two vehicles by maintaining some distance.
2.4. The complainant stopped his Wagon-R car at Vigyan Vihar Bus Stand (Road going towards Ramprasth, Ghaziabad). There, one person came and sat on the front passenger seat in the car of complainant. The raiding team, after parking their vehicles, took position and started waiting for pre-determined signal from the panch witness. The panch witness gave the signal at 05.00 p.m. The vehicle of the complainant was surrounded by the raiding team and the accused apprehended. Panch witness told the raiding team that accused demanded and accepted Rs.15,000/- from the complainant with his right hand and then kept it in the front left side pocket of his shirt. After introducing the raiding team and informing the accused about the complaint, the accused was offered that he can search the raiding team members before he is searched, but the accused declined the search offer. Panch witness recovered Rs. 15,000 from the accused, which were same currency notes. The hand wash and shirt pocket wash of the accused were obtained with the help of sodium carbonate solution, which turned pink. The pink liquid substance was kept in bottles, which were sealed, as also the shirt of the accused was sealed separately and were taken into possession vide separate seizure memos. The currency notes were also seized vide separate seizure memo.
2.5. Thereafter, RO made endorsement on the complaint and got the C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 5 | 65 6 FIR registered by sending the rukka through HC Krishandasan. Further investigation was marked to Insp M.C. Meena, who prepared unscaled site plan of the spot; recorded the statement of witnesses and; deposited the case property in the malkhana. During investigation, the call details of the accused, the complainant and Sapan were collected. The audio recording as to the conversation between the accused, complainant and Sapan at the time of transaction was sent to the FSL for comparison with the sample voices of these persons. The pink liquid substance was also got examined at FSL. The FSL result was positive for the pink liquid substance as well as the voice comparison. During investigation the copy of earlier FIR No. 214/09, which was registered on the complaint of Nirmala was also collected. Sanction u/s 19 of POC Act was obtained on 18.06.2015. On completion of investigation, charge sheet was filed.
3. Accordingly, after compliance of provision of 207 Cr.P.C., charge was framed against the accused under section 7 and section 13(1) (d) r/w section 13(2) of POC Act, 1988. The accused pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined total 30 witnesses.
4.1. PW-1 Jitender Singh, PW-2 Ashwini Kumar & PW-22 Surender Kumar are witnesses as to the voice samples taken during investigation at FSL Rohini. PW-1 witnessed obtaining of voice samples of Ajay Bhaduria and the complainant on 22.03.2012 vide memos Ex.PW-1/A & B. PW-2 witnessed the obtaining of consent C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 6 | 65 7 of accused for his voice sample vide consent memo Ex.PW-2/A. PW-22 witnessed the obtaining of voice samples of accused and Sapan Jain on 18.07.2011 vide memo Ex.PW-22/A and Ex.PW- 22/B, respectively.
4.2. PW-23 Sh. L. R. Yadav is a witness as to preparation of transcription Ex.PW-23/A of the audio recording dated 18.11.2009.
4.3. PW-4 ASI Kartar Singh handed over copy of FIR no. 214/09 PS Vivek Vihar (Ex.PW-4/B); copy of complaint of Smt. Nirmala Choubey dated 03.11.2009; Duty roaster of accused dated 18.11.2009 and; a letter regarding no arrival and departure entry of accused in PS Vivek Vihar (Ex.PW-4/C) on 18.11.2009. These documents were handed over to Insp. Rajender Kumar, the further investigating officer of this case, on 04.05.2010 vide seizure memo Ex.PW-4/A. It would be pertinent to mention here that in the cross examination this witness stated that above mentioned FIR no. 214/09 PS Vivek Vihar was got registered by the accused and then its investigation was marked to HC Raj Kumar. The witness also deposed that in that FIR the named accused were Mukesh Jain, Shatrughan Singh, Ajay, Sapan Kumar Jain, Gagan Jain and Shripal. Meaning thereby that the complainant of the present case was not an accused in that case.
4.4. PW-6 Ct. Krishan Kumar and PW-9 ASI Jai Krishnan collected the FSL results in this case separately on 11.02.2011 and on 19.07.2013, respectively.
C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 7 | 65 8 4.5. PW-7 HC Anand Prakash and PW-11 HC Jitender carried the exhibits of this case to the FSL from the malkhana on 03.02.2010 and 15.01.2013, respectively, vide RC No. 173/21/10 & RC No. 146/21/12.
4.6. PW-13 HC Jai Prakash was the malkhana Moharrir in the police station at the relevant time. He deposed that on 18.11.2009 one sealed parcel sealed with the seal of MCM containing a CD; currency notes worth Rs.15,000/-; four sealed bottles containing hand wash and shirt wash and; one parcel containing shirt, were deposited in the malkhana by Insp. M.C. Meena vide entry in Register no. 19. He also deposed that on 03.02.2010 two sealed bottles were sent to FSL through Ctr. Anand Prakash vide road certificate no. 173/21/10, Ex.PW-13/A. 4.7. PW-14 HC Jai Prakash (same name as PW-13, but another official) was also malkhana moharrir on 19.07.2013 and he deposed that FSL result was received on that day through Ct. Jai Krishnan along with 5 parcels and a sample seal regarding which entry was made in register no. 19 Ex.PW-14/A. 4.8. Similarly, PW-15 ASI Ram Kumar deposed that when he was posted as MHC (M) on 11.02.2011, the FSL result along with the remnants of RHW-I and FSSPW-I were received in the malkhana from FSL through Ct. Krishan Kumar vide entry in the register Ex.PW-15/A. He also deposed that on 18.07.2011 the IO deposited four sealed parcels in the malkhana sealed with the seal of RKJ, which parcels bore Mark No. SK-1, SK-2, AMI and C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 8 | 65 9 AM2, which were taken into malkhana vide entry Ex.PW 15/B. He also deposed that on 22.03.2012 the IO deposited four sealed parcels in the malkhana sealed with the seal of RKJ, which parcels bore Mark No. GK-1, GK-2, ABI and AB2, which were taken into malkhana vide Ex.PW-15/C. 4.9. PW-16 Rajeev Ranjan, Nodal officer from the Telecom Provider of mobile no.9250131353, proved the customer application form Ex.PW-16/A and the call details of this mobile for the period 01.11.2009 to 18.11.2009 as Ex.PW-16/B along with cell ID chart Ex.PW-16/C and its certificate u/s 65 B of The Evidence Act as Ex.PW-16/D. This mobile was in the name of Dharambir Singh and at the relevant time, as per case of prosecution, this mobile was used by PW3 Ajay Bhaduria.
4.10. PW-18 Vinod Kumar, Nodal officer from the Telecom Provider of mobile no.9868378848 (used by the accused), proved the customer application form Ex.PW-18/A. He deposed that the call details of this mobile for the period 01.10.2009 to 18.11.2009 could not be provided as it was already weeded out.
4.11. PW-19 Surender Kumar, Nodal officer from the Telecom Provider of mobile no. 9818298278 (used by Sapan Jain), proved the customer application form Ex.PW-19/2. Even this witness deposed that the call detail of mobile could not be provided because of expiry of one year.
4.12. PW-10 Dr. Madhulika Sharma was Assistant Director (Chemistry) in the FSL Rohini at the relevant time. She examined C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 9 | 65 10 the right-hand wash and pocket wash of shirt of accused, numbered as RHW-I and FSSPW-I and gave her report Ex.PW- 10/A, according to which, on chemical, TLC and HPTLC examination, both the substance was found containing phenolphthalein and sodium carbonate.
4.13. PW-12 Dr. C. P. Singh was Assistant Director Physics in FSL Rohini, Delhi, who examined the questioned audio recording with the sample voices of the accused; Sapan Jain; complainant Gopal Krishnan and; Ajay Bhaduria. He proved his report Ex.PW- 12/A. He deposed that the CD containing the questioned recordings and the audio cassettes containing sample voices did not indicate any alteration and, on comparison the questioned audio Ex.Q1 matched with sample voice of Ajay Mann; the questioned audio Ex.Q2 matched with sample voice of complainant Gopal Krishan; the questioned audio Ex.Q3 matched with sample voice of Ajay Bhaduria; the questioned audio Ex.Q4 matched with sample voice of Sapan.
In the cross examination this witness stated that he has done PhD in Speaker Identification and he has undergone training on the subject in India and abroad. He admitted that in his report he did not mention common audible words picked up by him or identified by him from the questioned voice and specimen voice for the purposes of comparison. The witness also admitted that on 28.06.2013 i.e. at the time of examination of the questioned voice/s the FSL, Rohini was not notified U/s 79-A of C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 10 | 65 11 Information Technology Act. The witness also admitted that transcription of questioned recording was also received by him along with the samples and that in the said transcription the names of all the speakers were mentioned and also that the queries raised by the investigating agencies through forwarding letter revealed the name of speakers in abbreviation. The witness also admitted that the sample voices supplied had words and sentences from the questioned voices and that he did not demand from the IO sample voices by asking the IO to frame independent sentences after picking common audible words or specific words from the questioned voices. He stated that it was usual practice that the sample voice was taken from the speaker by asking the speaker to read the transcription of questioned conversation qua that relevant speaker. The witness also admitted that he did not place on record the sound wave chart along with his report when he examined the recording by way of spectography, critical listening and wave form analysis. The witness also admitted that his report Ex.PW12/A was a typed report except the date, however, he denied that he signed the report mechanically which was prepared by his sub ordinates and because of that reason only the date was hand written whereas the rest of the report was a typed one.
4.14. PW8 ASI Krishna Dasan; PW24 Karnail Singh and PW25 Inspector Anil Kumar were members of the raiding team. All of C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 11 | 65 12 them supported the case of prosecution qua the fact that the raiding team left the ACB in two private vehicles along with the complainant and the panch witness on 18.11.2009; they reached office of complainant at Dilshad Garden from where the complainant took his Wagon R car; then the raiding team reached near a Fast Food Van at Surajmal Vihar where Sapan Jain and Ajay Baduria came on a scooter; subsequently, Ajay brought the accused on his scooter and then the accused also sat in the car of the complainant in which complainant, panch witness and Sapan were already sitting; Ajay also sat in the car and after receiving the pre-determined signal from the panch witness, the accused was apprehended; from the possession of the accused, the panch witness recovered bribe amount of Rs. 15,000/- from his pocket of shirt. These witnesses also deposed about the procedure and proceedings conducted thereafter at the spot; arrest of accused; getting the case registered etc. 4.15. Additionally, ASI Krishna Dasan deposed that the RO prepared a detailed rukka which was handed over to him for registration of case and he took the rukka to ACB from the spot at 7.55 PM and he was also directed by the IO Inspector M. C. Meena to deliver copy of FIR and rukka to him at Aruna Asaf Ali Hospital. After getting the case registered, he handed over FIR and rukka to Inspector M.C. Meena in the said hospital where the accused was taken for medical examination. The witness also deposed that upon return to the ACB office, SI Karnail Singh furnished two C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 12 | 65 13 CDs containing audio recording of the conversation which occurred within the Wagon R car at the time of demand and acceptance of bribe and out of those two CDs, one was sealed by the IO and another was kept in open condition.
When PW8 ASI Krishna Dasan was cross examined on behalf of the accused, he deposed that he reached ACB with rukka at 9.00 PM and it took one hour in recording the FIR. The witness admitted that he did not sign any document or exhibit as a witness at the spot. To most of the questions asked by the accused in cross examination, the witness expressed ignorance, including to certain important questions viz., whether any departure entry was made as to the departure of this witness to the hospital after registration of FIR; whether duty officer instructed him to hand over copy of FIR to IO at the spot and not at the hospital; mode of transport used by the witness; whether the subsequent IO Inspector M.C.Meena was called by the raid officer at the spot; whether accused signed the exhibits and seizure memos; whether any cloth was given to the accused for wearing after seizure of his shirt at the spot; exact address of complainant's office; at what time the audio recorder was taken by the raid officer and from whom, after apprehension of the accused; to whom the seal was handed over after use at the spot or whether it was handed over to someone or not; at what time the raiding team reached the office of the complainant; what was the locality like at the place of apprehension of C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 13 | 65 14 accused; time of apprehension of accused; the exact place where hand wash, shirt wash was conducted and seizure memos were prepared; whether proceedings were conducted under street light or natural light; whether the recovered currency notes were kept in a sealed Pulinda or not or whether they were kept in an envelope or not; who conducted the wash proceedings; whether signatures of Sapan, Ajay, SI Karnail Singh and SI Anil were taken by the IO on any document at the spot; whether the CD produced by SI Karnail Singh were played and heard by the IO or not.
4.16. PW24 SI Karnail Singh also deposed that when the raiding team proceeded from the office of the complainant at Dilshad Garden, he was asked to sit in the car of the complainant with the complainant and the Panch witness and he was carrying one audio voice recorder at that time and that he handed over the voice recorder to the panch witness when they reached near fast food van and there he left the vehicle of complainant and joined the other raiding team members in another vehicle. It would be pertinent to mention here that in his examination in chief, SI Karnail Singh initially deposed that when the raiding team reached near food van, two persons came on a scooter and one of them sat in the vehicle of the complainant and the other one left the spot. He specifically deposed that at that time there were three persons in the vehicle meaning thereby besides complainant and panch C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 14 | 65 15 witness, there was only one more person in the car at that time. He deposed that thereafter the complainant drove his vehicle and the raiding team started following the vehicle and thereafter the vehicle of the complainant stopped and the panch witness came outside the vehicle and gave pre- determined signal and the vehicle was surrounded. Thereafter, the panch witness handed over the recorder to the IO who in turn handed over the same to the witness instructing the witness to prepare the CDs and then the accused was given introduction of the raiding team and he was searched and from his possession money was recovered. The witness specifically deposed that he did not remember as to when the accused came and sat in the vehicle of the complainant and claimed that when the raiding team reached near the car, the accused was found sitting in the car. The witness also additionally deposed that upon reaching ACB office, he copied the audio recording on two CDs which he handed over to the IO and that the CDs were signed by the complainant, the panch witness, this witness and the IO, and out of two CDs one was sealed and seized vide seizure memo Ex.PW5/PX-2. Towards the end of his examination in chief, the witness wanted to refresh his memory and after seeking permission of the Court went through his statement U/s 161 Cr.P.C, particularly with respect to the arrival of the accused at the spot. After going through his statement U/s 161 Cr.P.C, the witness deposed that when two persons initially came on the scooter, one sat in the C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 15 | 65 16 car of complainant and another left with the scooter and brought the accused and then those two subsequently arrived persons including accused also sat in the car and thus there were total five persons sitting in the car before the witness gave pre- determined signal. The witness also deposed in his examination in chief itself that he did not give any certificate U/s 65B of Indian Evidence Act but had brought it at the time of deposition which was taken on record as Ex.PW24/A. In the cross examination, SI Karnail Singh deposed that recording device was available with him prior to the raid as he was custodian of the said device and that he did not get any recording device issued from the malkhana on that day. He claimed that the device always remained with the SO Branch of ACB and not with the malkhana moharrir. He specifically denied the suggestion that he got issued a recording device from MHCM on the date of raid or that no such device was with the SO Branch. When he was questioned as to when he left the spot, he expressed ignorance. The witness also expressed ignorance as to how he travelled to ACB from the spot and when he reached ACB; at what time HC Krishan Dasan left the spot; whether HC Krishan Dasan left the spot before his leaving or thereafter; whether he saw HC Krishan Dasan at the spot when IO reached the spot; how much time was consumed in writing rukka; at what time it was handed over to HC Krishan Dasan; whether the recording device had any SD memory card in it C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 16 | 65 17 or it had built-in memory; when the seizure memo of CD prepared. The witness admitted that he did not lodge his arrival entry at ACB and that the burning (writing) time of CD mentioned on the CD Ex. P1 is 10.10 PM, but he claimed ignorance as to whether it was start time or completion time of the burning of the CD. He admitted that the complainant and panch witness were not present when the CDs were burnt; that he was not a signatory on the cloth parcel Ex. P2 i.e. the cloth parcel containing CD Ex. P1. During cross examination of this witness, the CD was played and its properties were examined and it was found that the date of creation of that file was Wednesday, November 18, 2009 at 9:20:55 PM (21:20:55 hours). The witness also admitted in his cross examination that he did not himself satisfy before signing memo Ex.PW5/PX-2 as to whether particulars were correctly recorded in the said memo and that the date of FIR mentioned is 17.11.2009, which he explained as a clerical error.
This fact is even otherwise clear since it is nobody's case that the accused was apprehended on 17.11.2009 and also Ex.PW5/PX-2 bears hand written date at four places i.e. under the signatures of this witness, IO inspector M.C.Meena, the panch witness and one person who signed the document against receiving of the Pulinda. When the witness was questioned as to from where the two CDs were taken for copying the data, the witness claimed that it was lying in the SO Branch and that no C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 17 | 65 18 record was maintained regarding issuing and using the CDs lying in the SO Branch. During cross examination of this witness, the concerned loan register as to issuance of articles were summoned and the witness admitted upon seeing the loan register, a copy of which is Ex.PW24/DX, that there is only one entry dated 13.11.2009 regarding issuance of a button camera. The witness admitted that loan register was being maintained in ACB as to issuance of articles. The witness also admitted that at entry no. 98 in Ex.PW24/DX there is an entry regarding issuance of digital audio recorder on 29.12.2009 to one Mustkim, issued under the order of DCP and also that Ex.PW24/DX contains details of issuance of surveillance equipment on different dates and there is no entry about issuance of any device particularly audio recording device to this witness on the date of raid. It may be mentioned here that as per Ex.PW24/DX entries regarding issuance of equipment are contained in the relevant page from 17.09.2009 till 30.12.2009 and in these entries there is no entry as to issuance of audio recording device to this witness. Importantly, the witness also admitted that he did not preserve the original recording in the recording device, relevant in this case.
4.17. PW25 Inspector Anil Kumar also deposed that he did not remember whether Ajay Bhaduria sat in the car when the C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 18 | 65 19 accused was brought by him but he also deposed that the subsequent IO Inspector M.C.Meena was called by the RO and after preparation of rukka, it was handed over to HC Krishan Dasan with a direction to hand over copy of FIR to IO in the hospital.
In the cross examination the witness admitted that he was not the signatory on any of the documents Ex.PW5/C, D, E & F i.e. the pre raid report, the post raid report, the seizure memo of currency notes and, the seizure of hand wash, pocket wash. Also, he was not a signatory to Ex.PW25/A i.e. report prepared by the raid officer. The witness also admitted in his cross examination that the statements of complainant and the panch witness Ex.PW5/B and Ex.PW20/PX-1 respectively were in his handwriting. When the witness was asked to identify the hand writing on the right- hand wash sample and the shirt pocket wash sample i.e. RHW-I and FSSPW-I, Ex. P7 & 10, the witness claimed that he cannot identify as to whose hand writing it was. He claimed ignorance as to when HC Krishan Dasan left the spot with rukka; at what time the raiding team finally left the spot; at what time the raiding team except raid officer and HC Krishan Dasan reached hospital from the spot; how long they stayed at the spot. He claimed that the accused was brought to ACB from the hospital along with entire raiding team.
C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 19 | 65 20 4.18. PW-29 M.C.Meena, the further investigating officer, deposed that on 18.11.2009 he accompanied the raiding team from ACB office at 12.20 p.m. and when they reached near Surajmal Vihar Park at about 03.40 p.m., he was told by the RO to remain along with the drivers of the two car and subsequently when the car of the complainant was followed to service lane of Yamuna Sports complex at about 04.15 p.m. again he was so directed to remain with the drivers and the remaining raiding team members proceeded towards Vigyan Vihar Bus stand. The witness deposed that about 07.30 pm he was called by the RO near the bus stand and accordingly he reached there, where he was briefed about the facts of the case and he was also handed over four sealed bottles marked RHW-I, RHW-II, FSSPW-I and FSSPW-II already sealed with the seal of NK along with currency notes of Rs. 15000/-. Thereafter RO prepared tehrir and handed over it to HC Krishna Dasan at 07.55 p.m. and the HC was directed to bring the FIR to the hospital. Raid officer also directed SI Karnail Singh to go to ACB for preparation of CD's of the audio recording and thereafter RO left the spot at about 08.15 p.m. after handing over the accused to this witness. Thereafter this witness prepared site plan Ex.PW-29/A; interrogated the accused and recorded his disclosure statement; arrested the accused vide memo Ex.PW-5/G and prepared his personal search memo Ex.PW-5/H. Thereafter the raiding team left the spot along with the accused, complainant, the panch witness and other witnesses and reached the hospital at 10.05 p.m. C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 20 | 65 21 where accused was left with constable Mohanan for medical examination and he along with the remaining team members, complainant and panch and other witnesses reached ACB. In the ACB, SI Karnail Singh handed over two CD's to him out of which CD bearing Mark D1 was converted into cloth parcel and was sealed with the seal of MCM and taken into possession vide memo Ex.PW-5/PX2. Thereafter this witness along with complainant and panch witness again reached the hospital at about 11.00 p.m. and accused was got medically examined at 11.45 p.m. He deposed that HC Krishna Dasan came to the hospital and handed over copy of FIR and original rukka to him and then he wrote the FIR no. and other details of the case on the relevant documents. Thereafter all of them reached PS Civil lines along with the accused at 11.50 p.m. and the accused was put in the lock up of PS Civil lines. The witness also deposed that the duty officer of PS Civil lines was asked by him to record information regarding putting the accused in lock up prior to 12.00 in the midnight and he had also deposited case property in malkhana of PS Civil lines. It may be mentioned here for the purpose of clarity that ACB did not have any separate lock up and malkhana and therefore accused and case property were deposited in the nearest PS Civil lines. The witness also deposed that during investigation, he collected call details of complainant, accused, Sapan Jain and Ajay Bhaduria. He also got deposited the Exhibits in FSL; recorded voice sample of accused and then he was transferred subsequently.
C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 21 | 65 22 In his cross examination, the witness claimed that though he recorded the statement of HC Krishna Dasan u/s 161 Cr.P.C, but he did not remember whether Krishna Dasan in his statement stated that he was instructed by the RO to hand over the copy of FIR and rukka to this witness at hospital. He claimed that this instruction was given by him and not by the RO. The witness admitted that as per FIR Ex.PW-17/1 the copy of FIR and rukka were sent to spot from the PS through HC Krishna Dasan and that there was no mention in the rukka Ex.PW-25/ A that HC Krishna Dasan was instructed by the RO to hand over it to this witness in the hospital. The witness admitted that he did not instruct the duty officer from the spot to hand over the copy of FIR and rukka at hospital. The witness deposed that CD's were handed over to him by Karnail Singh on 18.11.2009 at 10.15 p.m. and he completed the seizure formalities by 11.00 p.m. and then he left again for the hospital. He admitted that he did not lodge any arrival entry regarding his visit to ACB prior to 11.00 p.m. When the FIR Ex.PW-17/1 was confronted to the witness he admitted that the kaimi DD entry no. 36 contains the time as 09.00 p.m. When the witness was asked as to in who's handwriting the complaint Ex.PW-5/A was, the witness claimed that it was written by son of the complainant. The witness also admitted that accused was not the IO of the FIR No. 11/09 PS Vivek Vihar, but he clarified that initially the complaint of that FIR was marked to accused and he was unaware whether complainant Gopal Krishan was an accused in that FIR or not.
C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 22 | 65 23 When this investigating officer PW-29 was asked as to in whose writing the statement u/s 161 Cr.P.C of complainant Ex.PW-5/B; of Panch witness Ex.PW-20/PX1; of SI Anil Kumar Ex.PW-29/DA and; of HC Krishna Dasan Ex.PW- 29/DB were, the witness answered they were in the handwriting of SI Anil and admitted that all those statements were dated 18.11.2009. The witness however clarified that part statement of these witnesses were recorded at the spot qua the proceedings conducted at the spot and subsequently their statements were completed by this witness after returning at ACB and after lodging of the accused in the lock up. When the witness was asked to demarcate those portions in the statements which were recorded prior to or subsequently the witness demarcated them at point D to D1 in the abovementioned statements. He admitted that there was no endorsement that those statements were recorded in two parts. The witness admitted that in the statement u/s 161 Cr.P.C of SI Anil Ex.PW-29/DA it is mentioned that the complainant and the panch witness were made free from the spot itself after their statements were recorded. When he was questioned whether Sapan and Ajay were present at the spot when this witness reached at the spot-on call of RO, the witness replied that he did not remember. He claimed that both those persons were called to ACB on next day of the raid i.e. 19.11.2009 and their statements were recorded. He admitted that his arrival entry at ACB was recorded at 12.10 a.m. under C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 23 | 65 24 DD No. 41 on the intervening night of 18/19.11.2009. The witness in his cross examination deposed that HC Krishna Dasan was not a witness to the proceedings relating to production of CD by SI Karnail Singh and regarding playing, sealing and seizure of CD's and that statement of HC Krishna Dasan was correctly recorded and that Krishna Dasan had accompanied this witness to PS Civil lines from hospital. The witness was confronted with portion A to A in statement of HC Krishna Dasan Ex.PW-29/DB where it is recorded that HC Krishna Dasan was a witness to production of CD's, sealing and seizure etc. When the witness was questioned as to what apparel was given to the accused upon seizure of his shirt, even this witness claimed ignorance. The witness replied that till the time he recorded part statements of the complainant and panch witness at the spot, and the preparation of seizure memo of CD, the FIR no. had not been revealed to him. He stated that seizure memo of CD was prepared by him subsequently and he admitted that the seizure memo of CD Ex.PW-5/PX2 was a completely typed document. Perusal of Ex.PW-5/PX2 reveals that even the FIR number is typed. Though there is the date of 17.11.2009 mentioned in this document, but I have already clarified above that this is nothing but a typographical error as the date of 18.11.2009 is mentioned under the signature of as many as 4 witnesses who have signed the same. The witness claimed that seal after use was handed over to the panch witness but admitted that no document was C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 24 | 65 25 prepared to that effect. The witness claims that he reached the hospital from Vigyan Vihar bus stop within 5-7 minutes and after remaining in hospital for few minutes he left for ACB. When the witness was asked whether the time of locking up of the accused was 11.35 p.m. in PS Civil lines, he claimed that it was wrong to so suggest and when his attention was drawn to DD no.31A, he claimed that it was not in his handwriting. The DD no. 31A Ex.PW-26/DC reveals that the time of putting the accused in lock up was mentioned as 11.35 p.m. The witness admitted that neither he seized audio voice recorder nor he collected any documentary proof to show that the said device was issued to SI Karnail Singh on the date of raid and also that the device was not even preserved for preserving original recordings. He also admitted that the cloth parcel of CD was not containing signature of complainant, panch witness or SI Karnail Singh. The witness also admitted that signatures of accused were not obtained by the raid officer on seizure memo Ex.PW-5/E and Ex.PW-5/F as to the currency notes and the hand wash and shirt wash. The witness also admitted that he did not place on record any consent letter of accused as to taking his voice sample. It seems that even the permission of the court was not taken for recording voice sample of accused. However, it is not a material fact on which the accused can claim any benefit in his favour as once the accused himself consented and gave his voice sample, non-obtaining of written consent from the accused or permission of the court is inconsequential.
C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 25 | 65 26 4.19. PW26 Inspector Rajender Kumar was further investigating officer of the case who collected documents pertaining to the earlier FIR No. 214/09 PS Vivek Vihar vide seizure memo Ex.PW4/A. He also collected departure and arrival entry regarding the accused dated 18.11.2009 from police station Vivek Vihar Ex.PW4/C and also the duty roster of PS Vivek Vihar for that day. He also got the transcription of audio recording dated 18.11.2009 Ex.PW3/A prepared on 03.09.2010 after playing the CD in presence of Sapan, Ajay, Complainant and the panch witness. This witness also got recorded sample voice of accused and Sapan on 18.07.2011 at FSL, Rohini. He also got recorded sample voice of the complainant and Ajay on 22.03.2012 at FSL, Rohini. During his tenure of investigation, he also obtained FSL result Ex.PW10/A. During cross examination of this witness by the accused, the witness admitted that the text for recording specimen voices of the accused and witnesses was lifted from the transcription itself and no separate text was prepared by picking few clue words from the questioned recording and no independent sentences were framed by using those clue words. He also admitted that no voice sample of unknown persons were mixed with the specimen voices of the witnesses and the accused before it was examined by the FSL expert. The transcription was got prepared by this witness from his sub-ordinate staff but he could not remember the name C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 26 | 65 27 of the said sub-ordinate staff and the witness admitted that there was no endorsement made in Ex.PW3/A as to the fact that it was prepared by his sub-ordinate. The witness also was confronted by the accused to the fact that in the transcription Ex.PW3/A at portion DX on internal page 9 of this exhibit, the hand writing was different then the hand writing on the remaining portion of this document.
4.20. PW27 ACP Sanjeev Tyagi was also further investigating officer of the case who got deposited certain exhibits of this case in FSL on 15.01.2013 through Ct. Jitender and then on 10.07.2013 got collected the FSL result Ex.PW12/A through Ct. Jai Krishnan.
4.21. PW28 Inspector Rohitash Kumar was also further investigating officer of the case who deposed that during the tenure of his investigation, he noticed that though on the request of the previous investigating officer certain call detail records of mobile no. 9868378848; 9818298278; 9313240997; 9213632824 and; 9250131353 had been received through e- mail but the hard copy of those CDRs were not received. Accordingly, he requested the mobile service providers to provide the hard copies of CDRs as also certificate U/s 65B of the Evidence Act. Accordingly, the mobile service provider M/s Tata Tally Services provided copy of Customer Application Form (CAF) and CDR of mobile no. 9250131353 along with certificate U/s 65B of the Evidence Act which is Ex.PW16/A to D. The C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 27 | 65 28 witness also deposed that another service provider M/s Bharti Airtel communicated vide its letter Ex.PW19/1 dated 28.08.2017 that the CDR of mobile no. 9818298278 was not available due to lapse of time. However, this company provided CAF Ex.PW19/2 & 3.
During cross examination of this witness by the accused, the witness admitted that Inspector M.C. Meena marked his arrival at PS ACB on 18.11.2009 under DD No. 41 Ex.PW28/DA. This DD No. 41 records arrival of the IO at 12.10 AM on the night intervening of 18-19.11.2009. The witness also admitted copy of DD no. 17 dated 18.11.2009 recorded at 12.20 PM regarding departure of the raiding team. The witness admitted that in DD No. 41 Ex.PW28/DA there is a reference of DD No. 7 and he also clarified that this is nothing but an inadvertent error in writing DD No. 17 in this Ex.PW28/DA which was written as 7 instead of 17. The witness also admitted that as per MLC Ex.PW28/DC the medical of the accused was conducted at 11.45 PM. The witness also admitted that in the seizure memo Ex.PW5/E & 5/F i.e. seizure memo of currency notes and other exhibits such as hand wash and shirt of the accused at the spot, there is no signature of Ajay Bhaduria or Sapan Jain. The witness admitted that he also did not seize the original audio recording device. When the witness was asked as to existence of any word in the transcription that the accused ever said that "bail nahin honey dunga, jab tak C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 28 | 65 29 paise nahin dogey". The witness answered that the conversation would lead to an inference that the accused was demanding and accepting bribe from the complainant. When he was questioned as to which portion of the transcription leads to such an inference as per him, the witness claimed that it was between portion DA to DA on internal page nos. 30 & 31 of Ex.PW3/A and DB to DB on internal page no. 32 of Ex.PW3/A. The witness also admitted that though there is no specific wording of any specific amount in the transcription, however, there is use of words "double kar dunga" at point DC on internal page 10 of the transcription Ex.PW3/A. This witness also admitted that there is a delay of about more than three years in sending the exhibits to FSL and also there was a delay in obtaining specimen voices of the witnesses as well as the accused. The witness admitted that in the statement U/s 161 Cr.P.C of Jitender Singh Ex.PW1/DA, it is mentioned in portion A to A that it was accused Ajay Mann who signed the parcels regarding the CD of voice sample of complainant and Ajay Bhaduria. But the witness clarified that the name of accused is inadvertently mentioned and it should be name of Ajay Bhaduria instead of Ajay Mann.
4.22. PW30 Inspector Satyender Vashisht was also further investigating officer of the case who obtained sanction of the Sanctioning Authority which is Ex.PW20/A & B. C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 29 | 65 30 4.23. Complainant Gopal Krishan when examined as PW5 turned completely hostile to the case of prosecution.
4.24. Similarly, the panch witness PW20 Arun Kumar turned hostile to the case of prosecution so far as material particulars as to the demand acceptance and recovery of bribe money is concerned.
4.25. PW3 Ajay Bhaduria who was also present, as per case of prosecution, at the time of transaction of bribe at the spot, initially supported the case of prosecution in his examination in chief, but subsequently during cross examination by the accused did not support the case of the prosecution. He was subjected to re-examination by the Ld. Prosecutor in which also he did not support the case of prosecution.
4.26. PW-3, 5 & 20 are the only three witnesses who have been examined in the present case as to the demand, acceptance and recovery of bribe money from the accused. I shall deal with their testimonies hereinafter, to avoid repetition.
4.27. Sapan Jain and the raid officer Insp Nand Kishore could not be examined as the expired by then.
5. On completion of the prosecution's evidence all the incriminating evidence was put to the accused in his statement U/s 313 Cr.P.C. The accused admitted that he was posted in PS Vivek Vihar as Head Constable between 01.11.2009 to 18.11.2009, but he claimed that he never demanded any bribe from PW5 C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 30 | 65 31 and PW5 was not even an accused in the said FIR No. 214/09. The accused admitted that the complaint of Smt. Nirmala Chaubey was initially marked to him and that on his endorsement dated 14.11.2009 the said FIR was registered. He also admitted that he was on emergency duty between 8.00 AM to 8.00 PM at PS Vivek Vihar on 18.11.2009. When he was questioned that he came on scooter of Ajay Bhaduria and sat in the car of complainant on 18.11.2009 and signalled the complainant prior to sitting in his car to come forward, the answer given by the accused was that he did not know. When he was questioned that he sat in the car, he denied it and claimed that no such eventuality took place. The accused denied having demanded or accepted any bribe and he also denied the proceedings conducted at the spot including drawing of hand wash, shirt wash etc. He claimed those exhibits to be planted upon him, he claimed that he has been arrested falsely. As to his voice sample he claimed that his consent for voice sample was obtained under pressure. He denied the transcription of the recording claiming that it was a fabricated document. He also denied the FSL reports. He claimed that no currency notes were recovered from his possession. Regarding the audio recording which was copied on CD Ex. P1, the witness claimed that it was fabricated and inadmissible. He claimed that he has been falsely implicated and the prosecution witnesses are interested except those who supported him. The accused also claimed that the complaint of Smt. Nirmala dated C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 31 | 65 32 03.11.2009 was initially marked to HC Sharifuddin and subsequently it was marked to him on 14.11.2009, therefore there was no occasion for him to call anybody prior to 03.11.2009 or 14.11.2009. He also claimed that he made endorsement on the same on 14.11.2009 and got the FIR registered and then investigation was entrusted to HC Raj Kumar, therefore he had no concern with the investigation of that case and even otherwise neither the complainant PW5 was an accused in that case, nor he was charge sheeted. He claimed that Sapan, the complainant and Ajay Bhaduria were of criminal background and disgruntled and involved in number of cases and therefore he has been implicated. The accused opted to lead evidence in his defence.
6. In his defence the accused examined nine witnesses.
6.1. DW-1 Sh. Bhagwat Singh from record room of court, proved the charge sheet and certain order sheets of case arising out of FIR No. 214/09 Ex.PW-28/DD in which accused R.P. Sharma was summoned who subsequently pleaded guilty for offence u/s 171 IPC.
6.2. DW-2 HC Budh Prakash from PS Harsh Vihar (earlier PS Dilshad Garden) proved copy of another FIR No. 396/06 u/s 160 IPC of PS Dilshad Garden Ex.DW2/A in which the complainant was an accused.
6.3. DW-3 ASI Mahesh Chand proved DD No.31A Ex.PW-26/DC according to which Insp. M.C. Meena made an entry at 11.35 C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 32 | 65 33 p.m. on 18.11.2009 regarding putting the accused in the lock up after medical examination of the accused. The witness deposed that as per this entry the accused was brought to PS Civil lines and locked up and this entry was made by inspector M.C. Meena.
6.4. DW-4 SI Roop Singh proved copies of relevant entries of DD register dated 18/19.11.2009 as Ex. DW-4/A in PS ACB.
6.5. DW5 HC Satender proved copies of FIR No. 434/93 PS Krishna Nagar u/s 307/452/506/342 IPC Ex.DW5/A; FIR No. 143/94 PS Krishna Nagar u/s 324/323/34 IPC Ex.DW5/B and FIR NO. 233/94 PS Krishna Nagar u/s 506 Ex.DW5/C. In all these FIR's the complainant (PW-5) was allegedly named.
6.6. DW-6 HC Rajeev similarly proved 8 FIRs in PS Vivek Vihar Ex.DW6/A to 6/H, in which the complainant (PW-5), Ajay Bhaduria PW3, deceased Sapan Jain were named. This witness also proved DD No. 25A dated 28.08.2018 Ex.DW6/I and DD No.34A Dated 27.072019 Ex.DW6/J. 6.7. DW-7 HC Vikas similarly proved another FIR in PS Jagat Puri Ex.DW7/A and proved the entry in register no. 9 (III) according to which certain entries as to other FIR's against the complainant exists and it reveals bad character of complainant of this case (PW-5) .
C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 33 | 65 34 6.8. Similarly, DW8 ASI Vinod Kumar proved another FIR u/s 354/509 IPC of PS Preet Vihar Ex.DW8/A against the complainant of this case (PW-5).
6.9. DW-9 Kailash Kumar from FSL Rohini Delhi was examined by the accused to prove visitor register dated 22.03.2012 and 18.07.2011. However, the witness proved that the said register was not available in FSL.
7. I have heard Ld. Prosecutor for the State and Ld. Counsel for the accused.
8. Ld. Prosecutor for the State argued that the case of prosecution is proved as PW3 Ajay supported the case of prosecution as to demand, acceptance and recovery of bribe money by the accused and even if the complainant and panch witness did not support the prosecution's version, conviction can be based on the testimony of PW3 corroborated from the hand wash and pocket wash of shirt of accused as also the testimony of PW8, PW24 & PW25. He also argues that from the audio recording also, the transcript of which has been proved, the demand of bribe is clear as also the acceptance of bribe. It is also argued by the Ld. Prosecutor that the voice sample examined by the expert in FSL clearly proves that the accused was present in the car and he demanded bribe and accepted bribe.
9. On the other hand, on behalf of accused, it is argued that even in a case under Prevention of Corruption Act, the onus is on the prosecution to prove the fundamental requirement of criminal C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 34 | 65 35 law viz the guilt of an accused should be proved beyond all rea- sonable doubts. In this regard reliance has been placed upon State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede 2009 (4) RCR (criminal) 217 and State of Punjab Vs. Madan Mohan Lal Verma 2013 (7) LRC 34 (SC). In both these cases, it was held that before an accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. It was also held that even while invoking the provi- sion of section 20 of PC Act, the court is required to considered the explanation offered by the accused, if any, only on the touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt. In the case of Dnyaneshwar (Supra) it was also held that the demand of illegal gratification is sine qua non for constitution of an offence under PC Act. In the case of Madan Mohan (Supra) it was observed that mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reli- able, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere re- ceipt of the amount by the accused is not sufficient to fasten guilt in absence of any evidence with regard to any demand and acceptance of the amount as illegal gratification.
9.1. It is further argued by the accused that the demand of bribe has not been proved by the prosecution. Even acceptance of bribe C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 35 | 65 36 and recovery of bribe money is also not proved since the complainant PW-5 and the panch witness PW-20 both were completely hostile on this point. It is argued that PW-3 Ajay Bhaduria cannot be relied since he changed his version in his cross examination and also he did not depose about any recovery of money. It is argued that presumption u/s 20 of PC Act cannot be invoked where demand of bribe has not been proved and that presumption u/s 20 is available only with respect to offence u/s 7 of PC Act and not section 13 (1)(d) (i)(ii) of PC Act. In this regard the accused has placed reliance upon the cases of V. Venkata Subbarao Vs. State AIR 2007 SC 489 and B. Jayaraj Vs. State of A.P., Crl. Appeal no. 696/14 decided by Hon'ble Supreme Court of India on 28.03.2014 and Mukhtiar Singh Vs. State of Punjab (2017) 8 SCC 136.
9.2. In the case of B. Jayaraj (Supra) it was also held, that U/s 7 of PC Act demand of illegal gratification is sine quo non to constitute the said offence and mere recovery of currency notes cannot constitute offence under that section unless it is proved beyond reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. It was held that mere possession and recovery of currency notes from the accused without proof of demand was insufficient to bring home the guilt U/s 7. It was also held that it will also be conclusive in so far as the offence U/s 13(1)(d)(i)(ii) is concerned as in the absence of any proof of C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 36 | 65 37 demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.
9.3. In the case of Mukhtiar Singh (Supra) it was observed that when on the appointed day complainant entered room of accused, on which the accused asked him whether money had been brought or not, by no means it constitutes demand and that such a stray query, ipso facto, in absence of any cogent and persuasive evidence on record cannot amount to demand. In the said case, reliance was placed upon the case of A. Suber AIR Vs. State of Kerala 2009 (3) RCR (CRL) 370 and it was observed that in a charge U/s 7 & 13 of PC Act, the prosecution has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent.
9.4. It is also argued that signatures of accused were not taken on the memos qua recovery of notes and washes and in this regard the accused has placed reliance upon the case of Janardan Sada @ Matua Vs. The State (NCT of Delhi) 2012 (2) JCC 1435.
9.5. Qua the hand wash and shirt pocket wash it is argued that it is merely a corroborative piece of evidence and once the complainant and panch witness did not support the case of C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 37 | 65 38 prosecution, the plantation of these washes also cannot be ruled out. In this regard, reliance is placed upon the case of P.Parasurami Reddy Vs. State of A.P. 2011 (3) C.C.Cases (SC) 313. In that case certain circumstance were not ruled out that the complainant had touched the currency notes and had shaken hands with accused or it could be that any one of the IO or the member of the raiding party had touched fingers of accused. In that case currency notes were not even recovered. The said case is thus distinguishable.
9.6. Relying upon the case of Ashok Kumar Vs. State 2000 (1) JCC (Delhi) 21, it is argued that the seizure memo of washes bears FIR number, though they were prepared before sending rukka and therefore the proceedings qua washes is doubtful.
9.7. It is next argued that PW-1 is a stock witness of ACB as he claimed that he was informed one week prior to 22.03.2012 about his duty at ACB and in his statement Ex.PW-1/DA there is mention about signing of the cassettes of voice sample by accused Ajay Mann whereas Ajay Mann was not with the IO on 22.03.2012, and in this regard reliance is placed upon the cases of Pyare Lal Vs. State I (2008) DMC 806 and Nepal Singh Rawal Vs. CBI 185 (2011) DLT 479. Both those cases are distinguishable on facts and do not apply to the facts of the present case. In Pyare Lal's case (Supra), the witness admitted that he had earlier also joined as witness in few cases. In Raman Kumar's case (Supra) the panch witness was called C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 38 | 65 39 even prior to the complaint being lodged. This is not the situation in the case before this court.
9.8. It is also argued by the accused that PWs- 3, 8, 25 and 29 cannot be believed as they did not sign any of the documents at the spot and in this regard, reliance has been placed upon Lalman Vs. State 1998 (3) CC Cases HC 208.
9.9. It is also argued that in absence of corroboration of the case of prosecution by PW-20 (panch witness), the version of prosecution becomes doubtful and regarding it reliance is placed upon the case of State of Rajasthan Vs. Mohan Lal 2009 (2) RCR (Criminal). It is also argued that the witness PW-3 is not believable since against him and complainant several cases were registered and, in this regard, reliance is placed upon the case of Hem Chander Vs. State of Delhi 2013 V AD (Delhi)
745. It is next argued that site plan of this case is not of any help to prosecution as it is hit by section 162 of Cr.P.C. It is also argued that the site plan Ex.PW-29/A does not give clear picture of the spot. In this regard reliance is placed upon State of Rajasthan Vs. Bhawani & Anr. 2003 (3) JCC 1343 and State Vs. Sunil Kumar @ Sagar 2015 (3) LRC 380 (Delhi) (DB) and Riaz Ali Vs. State (Govt. of NCT) Delhi 2012 (2) JCC 1092.
9.10. It is next argued on behalf of accused that specimen voice sample of accused was not properly recorded by the IO; the DVR was not sent to CFSL; PW-12 who gave the report of voice samples, was not a qualified expert and he had been supplied C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 39 | 65 40 the identity of speakers even before he examined the audio recordings; the expert did not produce the wave chart of the recordings examined by him and in this regard reliance is placed on the cases of Sudhir Chaudhary Etc. Vs. State (NCT of Delhi) AIR 2016 SC 3772 and Ashish Kumar Dubey Vs. State Thr. CBI 2014 IV AD (Delhi) 473 and State of Maharashtra Vs. Sukhdeo Singh & Anr. 1993 (1) CC.Cases 57 (SC) and Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143 and Vishal Chand Jain @ V.C.Jain Vs. CBI 2011 (1) JCC 570.
9.11. It is next argued that benefit of faulty investigation should be given to the accused and it is settled law that where there are two views possible, the view in favour of accused should be accepted. In this regard reliance has been placed upon Niamuddin Vs. State 2013 (4) LRC 116 (Del) and Kailash Gour & Ors. Vs. State of Assam 2012 (1) JCC 519 and State of Maharashtra Vs. Rashid B. Mulani 2006 (1) RCR (Criminal).
9.12. Reliance is also been placed by the accused upon the case of Surender Singh Vs. State (NCT of Delhi) 2014 (8) LRC 177 (Delhi). In para 20 of this case, it was held as follows, "With the evidence of PW-7 being unclear as to the conversation on the spot, and with reliable link evidence concerning the samples of the washes being absent, the mere fact that GC notes were recovered from the appellant and his hand and shirt washes turned pink do not lend sufficient assurance to the court that the C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 40 | 65 41 case against the appellant stands proved beyond reasonable doubt."
9.13. Reliance has also been placed by the accused upon the case of Om Prakash Vs. State 1998 (4) Crimes 227, to lay stress that the panch witness stated that he signed the documents on next day, which goes to show that documents were prepared on the next day at the PS and this again goes to show that the prosecution version is not correct and is to be looked upon with suspicion.
10. It may be mentioned here that it is well settled that it is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is also well settled that suspicion however strong can never take the place of proof. There is a long distance between the fact that accused 'may have committed the offence' and 'must have committed the offence', which is to be proved by the prosecution by adducing reliable and cogent evidence. Presumption of innocence is recognised as human right which cannot be wished away. (Refer; Narender Singh & anr. Vs. State of M.P. (2004) 10 SCC 699; Ranjtsingh Brahamjeet Singh Sharma Vs. State of Maharashtra & Ors. (2005) 5 SCC 294; Ganesan Vs. Rama S. Raghuraman & Ors. (2011) 2 SCC 83 and; State of U.P. Vs. Naresh & Ors. (2011) 4 SCC 384.
C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 41 | 65 42 10.1. Here it would be appropriate to mention that the complainant PW5 turned completely hostile to the case of prosecution. What he deposed was that when he went to PS Vivek Vihar some days prior to 18.11.2009, he met ASI Raj Kumar who was the IO of the earlier case and it was ASI Raj Kumar who demanded bribe from him and Sapan and Ajay had told him that they had given bribe to the IO. He claimed that it was ASI Raj Kumar who made a call on his mobile phone when he was away to Nilokhedi in Haryana and that it was ASI Raj Kumar who came to the house of this witness along with the complainant of that FIR. He also deposed that it was Sapan Jain who asked him to get the IO trapped and then he claimed to have made complaint against ASI Raj Kumar but Sapan Jain had named the present accused.
The witness was declared hostile by the prosecution and was cross examined in which also nothing material could be brought out on record in support of prosecution. Though the witness admitted that he made a complaint Ex.PW5/A on 18.11.2009 which bears his signatures, but he initially claimed ignorance as to in whose writing that complaint was and then claimed that it might be of his son. He claimed that he can neither write Hindi nor he can read it. The complainant took the stand that the accused neither demanded bribe from him nor spoke telephonically to him and he did not give any bribe to the accused on 18.11.2009. The complainant even denied that in C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 42 | 65 43 presence of panch witness in the office of ACB on 18.1.2009, the contents of his complaint were read over to him or that he had confirmed the contents of his complaint or that it was signed by the panch witness or that he carried bribe money of Rs. 15,000/- or that any phenolphthalein powder was applied on the currency notes or any demonstration as to characteristics of the powder were given or that he took the currency notes to the spot or that accused demanded the bribe or he paid it to the accused. Though, the complainant admitted that on 18.11.2009 his friend Sapan has called him twice on his mobile and that he had taken his wagon R car to the spot but he denied other facts including sitting of SI Karnail Singh with a voice recorder in his car, any pressure by the accused upon Sapan Jain regarding demand of bribe, the place where the accused wanted the bribe to be given etc. This witness even denied presence of PW3 Ajay Bhaduria or that the accused was brought by Ajay Bhaduria at the spot. However, at another place this witness volunteered that it was Ajay Bhaduria who signalled the complainant to stop near Vigyan Vihar Bus Stand. He at one place admitted that the accused along with Ajay Bhaduria came near his vehicle and then the accused sat in his car but he specifically denied that Ajay Bhaduria also sat in his car. He denied demand and acceptance of bribe but he admitted that accused was apprehended by the raiding team at about 5.00 PM on that day. The complainant at one place admitted C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 43 | 65 44 that PW20 Arun Kumar was sitting in his vehicle on the back seat with a voice recorder and the entire conversation which took place in the car was recorded in the said recorder. When the currency notes were shown to him, he claimed that the currency notes were given to him by Sapan Jain but he denied that those notes were given by him to the raid officer or subsequently to the accused. He denied recovery of money from the accused and the post raid proceedings at the spot. During cross examination of this witness by the Prosecutor, the CD containing audio recording was played which not only conformed to the transcript but the witness admitted that the recording contains his voice and voice of accused as well as Sapan Jain. He however did not recognise the voice of PW3 Ajay Bhaduria.
During cross examination of this witness by the accused, the witness once again claimed that he can neither read nor write Hindi language and that the complaint was in the hand writing of brother of Sapan Jain. The witness claimed that no writing work was done by the raiding team after the apprehension of the accused at the spot and the accused was immediately taken to the ACB office. He claimed that none of the documents which were got signed from him were read over to him before obtaining signatures and that he signed all the documents in the ACB in good faith. He also claimed that the panch witness had alighted from the C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 44 | 65 45 car for some time at the spot and that he never met accused between 16.11.2009 to 18.11.2009. He also claimed that he did not know Ajay Bhaduria prior to 18.11.2009. He claimed that he went to the office of ACB on 18.11.2009 for the first time in the evening hours at around 6-6.30 PM. He also admitted suggestion of the accused that the audio recording played by the Court was heard by him for the first time, meaning thereby that the transcription was not prepared in his presence. It may be mentioned here that in the cross examination of this witness by the accused, no suggestion was put as to the presence of Ajay Bhaduria or his non-presence at the spot or that Ajay Bhaduria did not bring the accused at the spot.
10.2. PW20 Arun Kumar, the panch witness though claimed to have joined the raiding team and proceeding to the spot and apprehension of accused but he also did not support the case of prosecution on material aspects including the factum of demand of bribe, negotiations as to the amount of bribe or acceptance and recovery of the bribe money from the possession of the accused. This witness claimed that before leaving for the spot from ACB on 18.11.2009, no proceedings were conducted at ACB office and he was simply asked to accompany the raiding team for arrest of one policeman and accordingly he accompanied the raiding team. According to this witness the complaint was not read over to C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 45 | 65 46 him in presence of complainant and the contents of complaint were not confirmed by the complainant, which supports the complainant's version, as mentioned above. The witness claimed that the police team took him to one office where the complainant met the police team and it was at that place the complainant was introduced to him by the raid officer and it was there the phenolphthalein powder was applied on the notes but he did not know who produced the notes. This answer of this witness indicates that the complainant was not even present at ACB office and met the team in his office only. In the office of complainant, the characteristics of powder was demonstrated. The witness deposed that he was thereafter simply asked to ensure that the suspect does not escape and no further instructions were given to him as to see the transaction and hear the conversation between the complainant and the accused, particularly the demand aspect and the payment of bribe. The witness deposed that then he sat in the car of the complainant and thereafter complainant received a call and spoke to someone and then the police team reached near a food van station and waited there for half an hour but nobody met them there. Thereafter, complainant again spoke to someone on mobile and they proceeded 200 meters away from the stationed food van and at that place two persons came near the car out of whom one was the accused. Then this witness was asked to go on the rear seat of the car and the accused occupied the front C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 46 | 65 47 seat. The other person also joined them and sat on the back seat of the car. The witness further deposed that it was thereafter that one more person came and sat in the car. The witness could not identify the other two occupants of the car besides the accused and the complainant. The witness went on to depose that thereafter those four persons kept on talking with each other for about 45 to 60 minutes and then he felt urge for call of nature and went outside the car to attend it. When he returned and was going towards the car, complainant signalled him and he assumed that money had been handed over to the accused and as such gave the pre- determined signal to the raiding team. The raiding team then apprehended the accused. The raid officer then asked this witness to search the accused but he could not find any money and then saw the money lying on the floor of the car where the accused was sitting. He lifted the currency notes and handed over them to the raid officer which was Rs. 15,000/-. Thereafter the accused was taken to the ACB office along with the police team and this witness and the site plan was prepared in the ACB office, the shirt of the accused was sealed and this witness was relieved and was asked to come on the next day and he signed the documents on the next day. The witness thus did not support the case of prosecution as to the demand of bribe or acceptance of bribe or recovery of bribe money. The witness did not support the case of prosecution that any C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 47 | 65 48 proceedings as to hand wash and wash of pocket of shirt of accused was conducted at the spot or any proceedings as to the seizure of shirt and wash samples were conducted at the spot.
10.3. Even this witness was declared hostile by the prosecution and was subjected to cross examination by the Ld. Prosecutor. Though the witness admitted his signature on the complaint Ex.PW5/A but he claimed that it was signed by him in the evening and denied that it was signed at 11.00 AM or it was read over to him in presence of complainant before proceeding for the spot. He denied that the complainant accompanied the raiding team from the ACB. However, he admitted that initially SI Karnail Singh also sat in the car and he was carrying a voice recorder. He however denied that any voice recorder was handed over to him after switching it on by SI Karnail Singh before SI Karnail Singh left the car. The witness claimed that though initially that instrument was given to him at Dilshad Garden but it was taken back from him and was handed over to the complainant. The testimony of this witness thus creates serious doubt even as to the audio recorded by the prosecution. Here, it may be mentioned that the original audio recorder and the original recording either in the internal memory card of the recorder or any external memory card of the recorder has never been taken C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 48 | 65 49 possession of and was not sent to the FSL for examination. As mentioned above, there is doubt as to issuance of any voice recorder to SI Karnail Singh or the raid officer from the malkhana or any other desk of ACB on or prior to the date of raid in this case. The witness even denied that the two persons who came on scooter at near food van were Sapan Jain and Ajay Bhaduria, thereby creating doubt as to presence of Ajay Bhaduria at the spot. The witness even denied that it was Ajay Bhaduria who brought the accused. The witness was specifically asked by the Ld. Prosecutor that neither Ajay Bhaduria left the car at any point of time nor he himself left the car to attend call of nature, but the witness denied those suggestions. This witness even denied that the accused initially demanded Rs. 40,000/- from him or then the demand was reduced to Rs.40,000/- or Rs. 45,000/- or for any other amount. The witness again clarified that he went out of the car as he was unable to control his urine pressure and when he returned, he assumed that the transaction had taken place and therefore gave the signal. He denied that the currency notes were recovered from pocket of accused and not from the foot mat of the car. Regarding his signatures on seizure memo, his claim was that he signed the said documents on the next day in the office of ACB. He denied the wash proceedings at the spot. He even claimed that his signatures on the bottles containing wash liquid were obtained on the next day as C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 49 | 65 50 also on the parcel of shirt. He claimed that he returned the voice recorder to the ACB official at the spot itself on 18.11.2009. Regarding signature of documents his claim was he signed them on the next day. In the cross examination of this witness by the accused, the witness claimed that he signed them in good faith.
10.4. The next witness for the prosecution is PW3 Ajay Bhaduria, who as per the case of prosecution was a chance witness. Ld. Prosecutor has relied upon the testimony of this witness to put forth the point that the case of prosecution is beyond reasonable doubt. This witness initially deposed that on 18.11.2009, upon receipt of phone of Sapan Jain, he went to food shop near Sura- jmal Park and met Sapan Jain. It was Sapan Jain who asked him to bring the accused on his scooter. Thereafter, this witness picked up the accused from Jhilmil Chowk and reached fast food van, but did not find Sapan Jain there. Meanwhile, he received call from Sapan Jain and Sapan Jain asked him to come at Ya- muna Krida Sthal. There Wagon R of complainant was parked where complainant was sitting on driving seat, Sapan Jain was sitting on the backseat along with one more person (Panch Wit- ness). The accused then sat on the front passenger seat of the car and this witness also sat on the backseat of the car. The wit- ness deposed that thereafter conversation between complainant and accused took place in which accused initially demanded Rs. 50,000/- which was reduced to Rs. 40,000/- but the complainant C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 50 | 65 51 was not willing even for that amount and finally the deal was struck for Rs. 20,000/-. Thereafter, the complainant paid Rs. 15,000/- to the accused then & there and the remaining amount was promised to be paid later on. Immediately thereafter the ac- cused was apprehended by the ACB officials. The witness also deposed that the accused had kept the bribe money in front pocket of his shirt. The witness also deposed that after about one year of the said date, he was called at ACB branch where the conversation recorded was played on computer in which he identified the voice of the accused, his own voice and the voice of complainant and that transcript was prepared on that day which he had signed. The transcript is proved as Ex.PW3/A. It would be relevant to note here that Ex.PW3/A was prepared on 03.09.2010. Accordingly, this witness was a chance witness as to the transaction of bribe. The witness also deposed that his voice sample was taken. The witness also heard the CD con- taining the recording in which he identified the voice of accused, complainant and his own voice in the Court from the CD Ex. P1. The witness was then put certain leading questions by the Ld. Prosecutor as to the date and time of this witness visiting initially residence of Sapan Jain and then together going to the fast food van at Surajmal Vihar where the complainant met and then com- plainant had asked this witness to pick the accused and there- after the fact of picking the accused by this witness and taking the accused to Vigyan Vihar bus stand.
C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 51 | 65 52 10.5. In the examination in chief of this witness by the prosecu-
tion neither was it asked nor the witness deposed as to the factum of recovery of currency notes from the possession of accused or the proceedings conducted at the spot and without getting those facts elaborated from this witness, the witness was tendered for cross examination by the ac- cused. Thus, there is no examination in chief of this witness as to recovery of bribe money, taking hand wash or wash of pocket of shirt of accused or other proceedings at the spot after apprehension of the accused.
10.6. In the cross examination by the accused, this witness took a somersault and deposed that he met Sapan Jain near food van on that day and it was Sapan Jain who asked him to bring the IO of the case and that the accused neither de- manded any money in his presence nor any bribe was given. The witness specifically deposed that the accused did not demand any money in his presence either from the complainant or from anybody else. He deposed that after the accused was picked up and dropped by him at the spot, the accused and Sapan Jain must have sat in the vehicle, but he did not sit in the vehicle and left the spot. He was categorical that no talk of demand of money or money transaction took place in his place on 18.11.2009 between the accused, the complainant and Sapan Jain. He even de- posed that when transcription of the audio recording was pre-
C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 52 | 65 53 pared after about one year of the incident in the ACB office, the accused was not present there. He deposed that no recovery of bribe money was affected from the accused in his pres- ence. Upon it, Ld. Prosecutor for the State sought permission of the Court to re-examine the witness on the ground that the wit- ness took a somersault in the cross examination and the Ld. Prosecutor was so permitted. Even in the re-examination of this witness by the prosecution the witness stuck to the stand that the answers given by him during cross examination by the ac- cused were correct one where ever there was a discrepancy as to two different versions given by this witness. The witness par- ticularly answered that his version that he did not sit in the car and left the place and therefore no bribe transaction oc- curred in his presence was the correct answer. It may also be mentioned here that in the cross examination of this wit- ness by the accused, the accused did not even suggest that he did not bring the accused to the spot or was not present at the spot or that the complainant, panch witness or Sapan Jain were not present at the spot or as to the Wagon R car of the complainant or as to the apprehension of the ac- cused by the raiding team at the spot. Thus, in a way the ac- cused did not challenge his presence at the spot and his apprehension at the spot.
11. The question however is, how far reliance can be placed upon the testimony of the PW3 Ajay Bhaduria who gave a different C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 53 | 65 54 version in his examination in chief and gave another in his cross examination. As mentioned above, the star witnesses of this case were the complainant PW5 and the panch witness PW20. Both of them did not support the case of prosecution as to the demand or acceptance of bribe or recovery thereafter. From the evidence as discussed above, there is no doubt as to the pres- ence of accused at the spot from the car of the complainant. The accused though claimed that he was not IO of the said earlier FIR on 18.11.2009 and that PW3 did not give a clear answer as to whether he went to pick up SI Raj Kumar or the present ac- cused, but the said facts are immaterial. The claim of accused that he was not investigating officer of said FIR and therefore this case against him cannot stand, is without force. Even if an accused who demands and accepts bribe is not an investigating officer in a case and he was merely a police officer who inquired as to the complaint at initial stage would not make any difference, as what is important is that by abusing position as a police officer whether any such demand was made by the accused and bribe was accepted by the accused. Once the ac- cused was apprehended from the car of the complainant, the claim of accused that he was not investigating officer of that ear- lier FIR, looses significance. The version of PW3 that he was asked to bring SI Raj Kumar and he brought the accused under the impression that he was SI Raj Kumar gets belied from the answers given by the witness himself during re-examination by the Ld. Prosecutor to the effect that he had met HC Raj Kumar C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 54 | 65 55 prior to the date of the raid and that the accused and HC Raj Kumar were not identical in appearance. Therefore, the said fact cannot be given any undue weightage. But the question is, that even if it is proved beyond reasonable doubt that it was accused who was apprehended from the car of complainant, whether the charges framed against the accused stand and gets proved?
12. Law is well settled that for Section 7 of the Prevention of Corrup-
tion Act, 1988, demand and acceptance of bribe has to be proved beyond reasonable doubt. Demand is sine quo non for a charge U/s 7 of PC Act.
13. In State of Gujarat v. Navinbhai Chandrakant Joshi, (2018) 9 SCC 242, it is held as follows:
"8. It is well settled that to establish the offence under Sections 7 and 13(1)(d) of the Act, particularly those relating to the trap cases, the prosecution has to establish the existence of demand as well as acceptance by the public servant. In B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543] , it was held as under: (SCC p. 58, para 7) "7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 55 | 65 56 knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [C.M. Sharma v. State of A.P., (2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] ."
14. Regarding initial demand from the complainant by the accused, there was only one witness i.e. the complainant (PW5), who did not support the case of prosecution as to any such demand. Unfortunately, Sapan Jain could not be examined as he expired. PW3 Ajay Bhaduria was not a witness of initial demand.
15. Regarding the demand at the spot on the date of raid also, neither PW5 complainant nor panch witness PW20 supported the case of prosecution and even PW3 Ajay Bhaduria changed his stand and mentioned in the cross examination that he was not even present when alleged demand was made. As to the recovery of currency notes, again the complainant, the panch witness and Ajay Bhaduria did not support the case of prosecution. Panch witness claimed that the currency notes were lying on the foot mat of the car. Ajay Bhaduria was silent as to recovery of currency notes. The other raiding team members and police officials PW8, PW24 and PW25, though claimed that currency notes were recovered from the shirt of accused by the panch witness, but their testimony is not supported by the panch C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 56 | 65 57 witness or the complainant or PW3 Ajay Bhaduria. PW8, PW24 & PW25, when subjected to cross examination, gave evasive replies to various material questions. Even otherwise neither Ajay Bhaduria(PW3) nor the police officials PW8, PW24, & PW25 are signatories to the seizure memo of currency notes or the wash solutions and therefore their presence at the spot becomes doubtful. Mere recovery of currency notes is not enough to fasten criminality against the accused, particularly when the complainant turned hostile and the panch witness stated that currency was lying on the foot mat of the car. Accused is not a signatory to the recovery memo of notes and hand wash and pocket wash, which is a material fact and cannot be over looked. Particularly, it is important when the panch witness, that is the so-called independent witness joined by investigating agency claimed that he signed those documents of wash proceedings etc. on the next day. Even otherwise, it is now well settled that the handwash and pocket wash proceedings are merely corroborative evidence, and once the complainant and panch witness did not support the case of prosecution and PW3 Ajay Bhaduria did not depose anything either about recovery or any such proceedings at the spot, conviction cannot be based merely on account of those washes. In the present matter, neither the complainant nor the panch witness supported the prosecution as to demand of bribe or payment of bribe or recovery. The version of PW3 who faltered in his cross examination by the accused as to the demand is not strong C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 57 | 65 58 enough to be believed and acted upon. Admittedly, all other witnesses of the prosecution who were present at the spot from the raiding team were not witnesses as to demand and acceptance of money. Once the testimony of PW3, who gave different versions in his examination in chief and cross examination, is not found safe to be acted upon, there is no witness from the prosecution to prove the factum of demand and acceptance. PW3 claimed that after dropping the accused, he left the spot and thus his testimony is not of clinching evidentiary value.
16. Besides ocular evidence of PW3, PW5 and PW20, the only other way by which the demand could have been proved was the audio recording of the conversation inside the car. The said audio recording and its transcription cannot be believed in the present matter for the simple reason that the original audio recording device was neither seized nor got examined from the FSL. There is a huge doubt as to from where that device was brought. There is doubt as to from where that device was issued to SI Karnail Singh or any other member of the raiding team from ACB on or prior to the raid. Rather the records brought by the accused in his defence reveal that no such device was issued to SI Karnail Singh. The original device on which the audio recording was done has therefore not been produced and therefore material evidence has been concealed by the Prosecution. What has been proved is CD. Admittedly, the CD C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 58 | 65 59 was prepared after copying the recording from the device through a computer. In absence of the original device, the CDs cannot be believed without suspicion as to its tampering or maintaining the original records. The transcription was prepared after a delay of ten months and there is no reasonable explanation offered as to it. Perusal of the transcription would also reveal that there is a change of hand writing at Point DX which seems to have been inserted in this document Ex.PW3/A. The panch witness, who allegedly recorded the version on the device did not support the case of prosecution that he recorded it or that after recording, it was he who gave the device to the IO.
16.1. The expert PW12 who gave report as to the voice recording did not even file the said wave chart for comparison by the Court. It is also admitted case of the prosecution that the investigating agency did not prepare independent sentences after picking up crucial words from the questioned recording and then the voice sample of the concerned could have been taken on those sentences so framed. The witnesses were asked to read their respective portions of the transcript in the voice sample, which is improper. The expert was supplied with the name and the portion which each of the speaker in the audio recording spoke, therefore practically the expert had to simply confirm as to whether a particular portion in the transcription was spoken to by the person to whom it is ascribed. The appropriate course in C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 59 | 65 60 such matters would have been that the voice samples of the concerned persons are taken after making them read certain sentences, which contained common words with the questioned audio recordings and then without revealing the identity of the voice sample giver or the questioned recordings, the expert could have been asked to identify which of the portions was spoken to by which of the persons who gave voice samples. As to the preparation of the CD by SI Karnail Singh PW24 and its seizure, the case of prosecution becomes doubtful from the fact that PW29 Inspector M.C.Meena claimed that he prepared this seizure memo subsequently and also in the statement of SI Anil U/s 161 Cr.P.C. Ex.PW29/DA it is mentioned that the complainant and panch witness were made free by the IO after recording their statements at the spot.
16.2. In Sudhir Chaudhary's case (Supra) it was observed that in order to ensure fairness and reasonableness in drawing voice samples a passage of a written text which the accused / witnesses should be required to read out for the purposes of giving their voice samples must contain words but not the sentences from the inculpatory / disputed conversation and words appearing in the disputed conversation as may be necessary may be included in the passage.
16.3. In Ashish Kumar Dubey's case (Supra) the cassette recorder which was used by a witness to record the conversation C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 60 | 65 61 was not sent to CFSL and only cassette was sent. After discussing the case of Ram Singh Vs. Karnal Ram Singh, 1985 Supp SCC 611; Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143, it was held in Ashish's case that the cassette was an inadmissible piece of evidence. In Ram Singh's case it was held that the voice of speaker must be duly identified by the maker of the record or by others who recognise his voice which is first condition for admissibility and where voice is denied by the maker, it would require very strict proof to determine whether or not it was really the voice of the speaker. It was also held that accuracy of tape-recorded statement has to be proved by the maker of the record satisfactorily and every possibility of tampering with or eraser of a part of tape-recorded statement must be ruled out; the recorded cassette must be carefully sealed and kept in safe or official custody. It was also held that voice of speaker should be clearly audible and not lost or distorted by other sounds or disturbances. In Nilesh's case it was held that it is all the more necessary since tape recordings may be altered by the transposition, excision and insertion of words or phrases and such alterations may escape detection and even elude it on examination by technical experts. It was held in Ashish Kumar's case that where the recorder used to record conversation was not submitted to CFSL and without the device being examined for ruling out the possibility of tampering, one of the important requirements was not C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 61 | 65 62 satisfied.
16.4. In Nilesh Dinkar's case (Supra), it was held that the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. It was also held that in that case the voice identification by the witness was otherwise unreliable because the voice identification was conducted without taking any precautions similar to the precautions which are normally taken in visual identification of suspects by witnesses. It was also noted in that case that PW18 & 19 was informed in advance that he had to identify the voices of appellant and others and no attempt was made even to mix the voices with some other unidentified voices and in such circumstances the identification evidence would have little value. It may be mentioned here that PW18 & 19 in that case were police officials who identified the boys.
16.5. In such circumstances, reliance placed by the prosecution on the audio recording is also not of any help to the case of prosecution.
17. Though, it was argued on behalf of accused that perusal of the C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 62 | 65 63 transcription would reveal no clear demand of bribe by the accused, whereas the Prosecution argued that the transcription when read as a whole would indicate demand from the accused, but once it is held that the audio recording itself is not admissible in view of non-seizure of original audio recording device and because of other reasons mentioned above, the transcription cannot be relied and acted upon.
18. One thing, worth mentioning here is that perusal of the complaint on which the present case was initiated would reveal that as per complainant the accused had already reduced his demand to Rs. 15,000/- and accused had agreed to accept Rs. 15,000/- and therefore the complainant carried Rs. 15,000/- to ACB, but it is the case of prosecution that at the spot the accused demanded Rs. 50,000/- in the car and then reduced it to Rs. 40,000/- and then to Rs. 20,000/-. If the accused had already reduced his demand to Rs. 15,000/-, as mentioned in the complaint itself, where was the occasion to again raise the demand and then reduce it by the accused on the bargaining of complainant.
19. It is though argued by the accused that the washes bottles were not deposited in the malkhana timely, but there is no convincing material to suggest any such thing. The argument of accused that the solution colour in Ex. P7 & P8 differed at the time when PW29 was cross examined and therefore the plantation of those washes cannot be ruled out, is without force. Two bottles of C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 63 | 65 64 hand wash solution were prepared out of which one was sent to the FSL and the other one was retained by the IO. It is quite possible that one of the bottles which was sent to the FSL and which was obviously opened and examined in FSL, changed its colour because of its exposure to the environment and other factors.
20. The claim of accused that the FIR is ante timed is not based on any convincing evidence and material on record. The contradictions pointed out by the accused in the testimonies of PW8 Krishna Dasan, PW17 SI Anand Swaroop and PW29 Inspector M.C.Meena are not very material and it is quite possible that those contradictions occurred because of lapse of time in examination of the witnesses after the date of raid and also no unnecessary importance can be given to such trivial contradictions.
21. A lot of emphasis has been raised on the point that as per DD entry in PS Civil Lines the accused was put in the lock up at 11.35 PM whereas the MLC of the accused records the time of 11.45 PM and it is the case of prosecution that medical of accused was conducted prior to the accused being put up in the lock up. Similarly, a lot of emphasis has been raised on the point as to how much time was consumed in recording statements of witnesses and where exactly they were written. In the considered opinion of this Court, these facts do not affect the decision of the case and are not material enough to be C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 64 | 65 65 discussed any further.
22. It is settled law that where the punishment provided for an offence is higher, stricter has to be the degree of proof by the prosecution. (Mousam Singha Roy and Others v. State of West Bengal 2003 (3) JCC 1385).
23. In the present case, for the forgoing reasons, the Prosecution fails to prove its case beyond reasonable doubt and accordingly benefit of doubt is given to the accused and the accused is acquitted of the charges.
Announced in the Open Court on 30th January, 2020. Dig Vinay Singh Special Judge (PC Act) (ACB)-02 Rouse Avenue Courts, Delhi C C N o . 1 4 5 / 2 0 1 9 S t a t e V s A j a y M a n n F I R N o . 3 7 / 2 0 0 9 P a g e 65 | 65