Delhi District Court
Cbi vs . Gopi Chand on 24 May, 2016
1
IN THE COURT OF SH. SANJEEV AGGARWAL SPECIAL JUDGE
CBI03 (PC ACT) DELHI
CC No.20/08 RC : 41(A)/1990
PS : CBI/ACB/ND
U/s : 7 and Sec. 13 (2) r/w.
Sec.13(1) (d) of the P.C. Act
CBI Vs. Gopi Chand
S/o Master Ram Kishan
R/o H.No.304, Mohalla Kalan, Distt.Sonipat, Haryana
(the then Supdt. Commercial DRM office, Northern
Railway,New Delhi).
Date of Institution : 18.12.2008
Judgment Reserved : 14.05.2016
Judgment Delivered : 24.05.2016
J U D G M E N T
1. In brief the prosecution story is that, on a written complaint of Sh.Leela Dhar, a case u/S 7 of PC Act was registered against Gopi Chand, Superintendent (Commercial), office of DRM, Northern Railways on 10.09.90. It was alleged in the written complaint that the complainant had been operating certain stalls at Shakurbasti station platform which were directed to be shut down by the Inspecting team for 15 days. He wanted to CC NO. 20/08 CBI vs. Gopi Chand 1 of 49 2 get those stalls to reopen and had contacted Gopi Chand on 07.09.90 for this purpose, Gopi Chand had demanded a sum of Rs.500/ to allow him to reopen the stalls and directed this money to be paid to him on 10.09.90.
2. On the said complaint being made, it was decided to lay a trap against Gopi Chand and in that a trap team consisting of Inspr. Mehar Singh, independent witnesses Sh.Ram Gopal Sahu, Sh.Y.N.Sota and other CBI personnel had assembled at the CBI office, New Delhi and concluded pre trap proceedings on 10.09.90 as mentioned in the Handing over memo.
3. During the proceedings, a sum of Rs.500/ GC notes duly smeared with phenolphthalein powder were kept in the pocket of Sh.Leela Dhar (complainant) to be handed over to Gopi Chand only on his demand and one of the witness Sh.Ram Gopal Sahu was to accompany the complainant at the venue of would be demand and acceptance of bribe by Gopi Chand. It was also decided that the complainant Leela Dhar, would pass on a signal by scratching his head with his right hand after the acceptance of bribe amount by Gopi Chand and till then, complainant was asked not to touch the tainted amount which was kept in his pocket.
CC NO. 20/08
CBI vs. Gopi Chand 2 of 49 3
4. As detailed in the recovery memo, the trap team accompanied by abovesaid witnesses and complainant had reached at the venue i.e. office of DRM, New Delhi and the complainant alongwith shadow witness Sh.Ram Gopal Sahu were then sent inside the office to meet Gopi Chand. As directed by Gopi Chand, both of them came back to revisit him after 5.00 P.M.
5. Thereafter, the complainant and shadow witness Sh.Ram Gopal Sahu then revisited the office of Gopi Chand, who was alone at that time and on being requested by Leela Dhar to allow him to reopen his stalls, Gopi Chand reiterated his demand of Rs.500/ and directed Leela Dhar to keep the bribe amount of Rs.500/ brought by him in the drawer of his office table. After the bribe amount was kept in the table drawer by the complainant, Gopi Chand checked the bribe amount kept in drawer by touching with his left hand and confirmed it. Thereafter, he asked Leela Dhar to leave his office with the assurance that his work will be done.
6. Thereafter, on receipt of pre decided signal given by Leela Dhar, the Trap Laying Officer (TLO) Inspr. Mehar Singh alongwith other trap team members and independent CC NO. 20/08 CBI vs. Gopi Chand 3 of 49 4 witnesses then challenged Gopi Chand. Independent witness Sh.Ram Gopal Sahu told that in his presence Gopi Chand had demanded the bribe from the complainant, which was put into his office table drawer. Inspr. Mehar Singh directed another witness accompanying them to find out, whether any amount was lying in the drawer as informed by Sh.Ram Gopal Sahu and the said witness searched the drawer and a sum of Rs. 500/ GC notes were found kept therein and the said GC notes were tallied with the numbers already noted in the pre trap / handing over memo and same were found to be correct.
7. Thereafter, fresh sodium carbonate solutions were prepared and simultaneously, right hand and left hand fingers of Gopi Chand was dipped into the said solutions, which turned into pink colour. Thereafter, these bottles were labeled as RHW and LHW. Both these bottles were wrapped with cloth wrappers and sealed with CBI seal. Personal search of Gopi Chand was taken. The CBI seal after use was given to independent witness Sh.Y.N.Sota with directions to produce the same before the Court as and when directed. A rough site plan was also prepared. The tainted notes and the bottles containing the hand washes were taken into possession vide CC NO. 20/08 CBI vs. Gopi Chand 4 of 49 5 recovery memo.
8. Thereafter, the investigations were further entrusted to Inspr. Manjeet Singh, who had sent the sealed bottles of both hand wash of Gopi Chand to the CFSL for chemical analysis. On analysis the CFSL report revealed that both the liquids were found to have phenolphthalein.
9. It would be relevant to point out here that prior to this closure report dated 02.01.96 submitted by the CBI in the present case was rejected by then Spl. Judge vide order dated 26.04.97, thereby directing the CBI/IO to further investigate the matter.
10.Thereafter pursuant to the said directions, further investigations were carried out by the CBI and after completion thereof present charge sheet has been filed. Vide order dated 18.12.08 after the filing of said charge sheet cognizance was taken, on 20.03.2009 and accused was summoned U/s 7 & 13(1)(d) r/w Section 13(2) r/w of PC Act. Ultimately vide detailed order dated 12.01.11 the charge U/s 7 and Sec 13(2) r/w Sec. 13(1)(d) of PC Act was directed to be framed against the accused and vide order dated 18.01.2011, a formal charge was framed, thereafter the matter went in appeal upto the CC NO. 20/08 CBI vs. Gopi Chand 5 of 49 6 Hon'ble Supreme Court. Ultimately vide order dated 12.08.15 Crl. Appeal No. 888/11 filed by the accused was dismissed. Thereafter the trial commenced. Prosecution in support of its case has examined 9 witnesses.
11.PW1 is Sh. Ram Gopal Sahu, the shadow witness who has deposed regarding time, place and the manner of trap preparation/incident. PW2 is Sh. N.B.Pardhan, Principal Scientific Officer(Ballistics) cum Assistant Chemical Examiner, Govt .of India, CFSL, CBI, New Delhi who has proved the report pertaining to the hand washes given by then Sr. Scientific Officer Sh. N.K.Prasad, the same is ExPW2/A. PW3 is Sh. Y.N.Sota, another independent witness who had accompanied the CBI team on 10.09.90 at the time of trap. PW4 is Ms. Archana Joshi from North Eastern Railways, Gorakhpur, U.P. She has proved her inspection report Ex PW4/B regarding the inspection carried out by her at certain catering stalls at Shakur Basti Railway Station, wherein she had also inspected the stall of complainant Leela Dhar and had observed number of irregularities in the catering of Leela Dhar and one one Putti Lal. PW5 is Sh. Brij Pal another witness from Indian Railways who has also spoken about the CC NO. 20/08 CBI vs. Gopi Chand 6 of 49 7 file proved by previous witness with respect to the inspection carried out by PW4, he has proved a note order dated 23.08.90 ExPW5/A. PW6 is Sh. N.L.Meena also from Railways who was posted as Sr. Vigilance Officer H.Q Baroda House. He has deposed that he had informed the SP ACB/CBI New Delhi that the RHW, LHW and the original expert report which was sent to the Railways regarding the disciplinary proceedings of accused Gopi Chand was not traceable. The said letter dated 28.02.1991 is ExPW6/A. PW7 is complainant Sh. Leela Dhar, the star witness of the prosecution and the complainant. PW8 is Sh. Mehr Singh, Retired ACP, who was a trap laying officer of this case. PW9 is DSP Raj Singh who had conducted the part investigation of this case and filed the charge sheet.
12.Many of the prosecution witnesses had died due to the long lapse between trial and incident dated 10.09.90.
13.After the completion of prosecution evidence statement of accused U/s 313 Cr.P.C was recorded on 11.05.16, wherein the entire incriminating evidence was put to him, his defence was that all the prosecution witnesses are false witnesses and they had deposed at the instance of CBI. The evidence on CC NO. 20/08 CBI vs. Gopi Chand 7 of 49 8 record had established that the the complainant was highly unreliable and false witness, who was also interested witness to ruin the life of one more public servant, as he has done with other 34 other public servants by trapping them in a false case and the complainant was a notorious person and he was innocent and had been falsely implicated in the present case.
14.I have heard Ld. PP for CBI Sh. J.S.Wadia and Ld. counsel for the accused Sh. M.S.Khan and perused the record. Ld. Counsel for the accused has relied upon the following judgment of Hon'ble Supreme Court, Crl. No. 31/2009 titled as P.Satyanarayana Murthy Vs. The Dist. Inspector of Police & Anr, the relevant para of the same is reproduced as under:
21. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)
(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.
22. As a corollary, failure of the CC NO. 20/08 CBI vs. Gopi Chand 8 of 49 9 prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.
15.Ld. PP for the CBI has argued that from the testimonies of complainant PW7 and that of independent witnesses PW1 and PW2 who had acted as a shadow witness and independent witnesses, the prosecution has been able to prove demand, acceptance of bribe and recovery of bribe money from the accused.
16.He has further argued that the exhibits seized from the spot i.e solution of phenolphthalein powder and sodium carbonate clearly reveals that the hand washes of the accused gave positive opinion for the presence phenolphthalein powder. He has further argued in this regard that though the said exhibits had been lost by the Railway authorities, which they had requisitioned from the CBI during the departmental proceedings of the accused, but the same has been proved to be positive as per the testimony of PW2 Sh. N.B.Pardhan and also from the testimony of PW6 Sh. N.L.Meena that the said CC NO. 20/08 CBI vs. Gopi Chand 9 of 49 10 exhibits were fetched by the Railway authorities from the CBI and were lost by the Railway authorities. Therefore he has argued that non production of the said exhibits is not due to the fault of the prosecution.
17.He has further argued that merely because the complainant was instrumental in trapping 34 other public servants does not lead to an inference that complainant was a habitual person, rather it shows that corruption was all pervasive in Indian society and the complainant was fighting against the corruption and he was not ready to give bribe to anyone, whosoever demanded bribe from him, he complained against him to the CBI and other agencies, which rather shows that he is a truthful witness.
18. He has further argued that from the testimony of prosecution witness as a whole it is clearly established that the accused demanded, accepted the bribe from PW7 which was also recovered from his possession. Therefore he has argued that accused is clearly guilty for the offences for which he has been charged.
19.On the other hand, Ld. defence counsel for the accused has controverted the allegations of the prosecution on the ground CC NO. 20/08 CBI vs. Gopi Chand 10 of 49 11 that prosecution has failed to prove the prosecution story, as stated in the charge sheet.
20. He has firstly argued that the initial demand has not been proved, which allegedly took place on 07.09.90, as there is no witness to the same. Even there is a delay of 3 days in lodging the FIR, as admitted by PW8 and PW9. He has further argued that from the testimonies of PW1 and PW2, it is evident that the accused neither demanded bribe, nor accepted, nor the same was recovered from his possession, as both PW1 and PW2 have deposed that the money was recovered from the drawer of the accused, and the said money was kept by the complainant into the said drawer, when the accused had gone away with the file for some work.
21.Therefore he has argued that there is no question of demand, acceptance and recovery of bribe money from the possession of the accused. He has further argued that Section 7 of P.C Act is not made out or attracted in this case, as accused was not in a position to show any favour to PW7 which fact has also been admitted by PW4 Ms. Archana Joshi, who had carried out the inspection at the catering stalls of the complainant in May 1990 and who had recommended for the CC NO. 20/08 CBI vs. Gopi Chand 11 of 49 12 closure of the stall of the complainant for 15 days, as the said witness has admitted that the accused had no powers to close/open the said stalls. He has further argued that even otherwise accused was not the member of the said inspection team and therefore he was not even in a position to show any favour to the accused, rather the concerned officer who did not inspect the stall of PW7 for 3 years. Action was also recommended against him by PW4 Ms. Archana Joshi.
22.He has further argued that the testimony of PW7, when read as a whole is a bundle of lies. He has made material improvements in his testimony as he stated that he had taken Rs. 500/ and Rs. 300/ separately for laying trap against two persons and as per the version of PW7 Rs. 500/ were handed over to the accused and Rs. 300/ were handed over to another clerk, who was sitting in the same room where accused was sitting, who after taking the money ran away from the spot and could not be apprehended.
23. He has further argued that the story propounded by PW7 is diametrically opposite to the story of the other prosecution witnesses in which they had spoken about a single trap, which fact TLO and IO who had filed the chargesheet have also CC NO. 20/08 CBI vs. Gopi Chand 12 of 49 13 admitted that there was only one trap. He has further argued in this case, as it has been admitted by PW6 and PW9 that there was no pre verification proceedings regarding the complaint of the PW7 and there was delay of 3 days in lodging the FIR which clearly casts doubt in the prosecution story, as no reason has been given by the prosecution as to why pre verification proceedings were dispensed with. He has also argued that testimony of PW7 has to be taken with a pinch of salt, as he has admitted in his cross examination that he was instrumental in getting three other public servants of the Railway trapped by the CBI. In these circumstances Ld. Defence counsel has argued that any person who had trapped three persons of the same department would become notorious or infamous after each successful trap and nobody would dare, either to confront him, or to demand bribe from him, rather nobody would even try to mix with him.
24.He has further argued that there are lot of holes in the prosecution story, as no DD entry for the issuance of seals, phenolphthalein powder, leaving of CBI team for the trap and deposit of articles including the recovery memo and other memos in the maalkhana has been proved which casts CC NO. 20/08 CBI vs. Gopi Chand 13 of 49 14 serious doubt on the prosecution story. He has further argued that even the exhibits i.e left hand wash and right hand wash of the accused have not been produced.
25.He has further argued that this was precisely the reason why the CBI had filed a earlier closure report dated 02.01.1996, as their investigation had revealed that right hand wash of the accused did not turn into pink colour. Though there are allegations that he had counted the tainted money from both his hands and further there is a delay of 3 days in registration of FIR, though initial demand was made on 07.09.90, whereas the complainant had lodged the complaint only on 10.09.90 and no reason has been given for the delay, further no formal order was required for reopening of stall in question as per the statement of DCS catering services Northern Railway and accused was not in a position to get the stalls opened /closed and that the accused had signed on the recovery memo and put the date as 09.10.90, whereas all the other witnesses put the date as 10.09.90, which also creates doubt that no proceedings actually took place on 10.09.90. He has argued that the CBI has still failed to give any explanation with regard to above said shortcoming which resulted in filing the earlier CC NO. 20/08 CBI vs. Gopi Chand 14 of 49 15 closure report dated 02.01.1996, the said shortcomings still remain. Therefore he has argued that taking the prosecution evidence as a whole the evidence lead by the prosecution is highly doubtful in nature which only lead to an inference that accused is innocent and is liable to be acquitted.
26.The law in this regard has been laid down by the Hon'ble Supreme Court in, case titled as State of Punjab V. Sohan Singh reported as AIR 2009 SC 1887 , as under :
10. The High Court in support of its Judgment interalia opined :
i) The prosecution is required to establish the demand of bribe by the accused; acceptance whereof as also the amount in question from his possession and having regard to the fact that there exists serious discrepancies in the statements of the witnesses in regard to the events immediately prior to the payment of the amount of bribe, the prosecution cannot be said to have proved its case.
ii) No reason has been assigned by the prosecution as to why the independent witness Inderjit Singh, who was a government employee, had been given up by the prosecution.
Iii) The circumstantial evidence in CC NO. 20/08 CBI vs. Gopi Chand 15 of 49 16
regard to the alleged commission of the offence by the respondent was not sufficient to establish the case of bribery in the light of the ingredients thereof.
27.It has also been held by Hon'ble Supreme Court in, case titled as Banarsi Dass Vs. State of Haryana , reported as AIR 2010 Supreme Court 1589, as under :
11. To constitute an offence under Section 161 of the IPC, it is necessary for the prosecution to prove that there was demand of money and the same was voluntarily accepted by the accused.
Similarly, in terms of Section 5 (1) (d) of the Act, the demand and acceptance of the money for doing a favour in discharge of its official duties is sine qua non to the conviction of the accused. In the case of M.K.Harshan Vs. State of Kerala (1996 (11) SCC 720) ; (AIR 1995 SC 2178 ; 1995 AIR SCW 3385 ), this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under :
" .............. It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary.CC NO. 20/08
CBI vs. Gopi Chand 16 of 49 17 In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case we have no other evidence except that of PW1. Since PW1's evidence suffers from infirmities, we sought to find some corroboration but in vain. There is no other witness or any other circumstance which supports the evidence of PW1 that this tainted money as a bribe was put in the drawer, as directed by the accused. Unless we are satisfied on this aspect, it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5 (1) (d) of the Act, particularly when the version of the accused CC NO. 20/08 CBI vs. Gopi Chand 17 of 49 18 appears to be probable".
12. Reliance on behalf of appellant was placed upon the judgment of this Court in the case of C.M.Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 )(Supra), where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in paras 18 and 20 of the judgment held as under : "18. In Suraj Mal Vs. State (Delhi Admn.) (1979 (4) SCC 725); (AIR 1979 SC 1408), this Court took the view that (at SCC p. 727, para2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.
20. A threeJudge Bench in CC NO. 20/08 CBI vs. Gopi Chand 18 of 49 19 M.Narsinga Rao Vs. State of A.P. (2001 (1) SCC 691 ; SCC (Crl.) 258); (AIR 2001 SC 318 ; 2000 AIR SCW 4427), while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed : (SCC p. 700, para24) :
"24. .... we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi Vs. State of Maharashtra (2000 (8) SCC 571); (AIR 2001 SC 147 : 2000 AIR SCW 4018). The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel : (Madhukar case, SCC p. 577, para12).
'12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. So the word CC NO. 20/08 CBI vs. Gopi Chand 19 of 49 20 "gratification" need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like "gratification or any valuable thing". If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word "gratification" must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
13. Infact, the above principle is no way derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case (AIR 1979 SC 1408) (supra), where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram Vs. State of Rajasthan (1975 (2) SCC 227) ; (AIR 1975 SC 1432), where similar view was taken.
CC NO. 20/08
CBI vs. Gopi Chand 20 of 49 21
14. The case of C.M. Girish Babu (AIR 2009 SC 2022 ; 2009 AIR SCW 1693 ) (supra) was registered under the Prevention of Corruption Act, 1988, Section 7 of which is in pari materia with Section 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act. Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case.
28.Recently, it has been held in judgment titled as "V. Sejappa v. State By Police Inspector lokayukta, Chitradurga, 2016 V AD (S.C.)1 Criminal Appeal No. 747 of 2008 as under:
10.In order to constitute an offence under Section 7 of the Prevention of Corruption Act, 'proof of demand' is a sine quo non. This has been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v.
State of Andhra Pradesh (2014) 13 SCC 55, CC NO. 20/08 CBI vs. Gopi Chand 21 of 49 22 wherein this Court held as under: "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 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. (2010) 15 SCC 1 and C.M. Girish Babu v. CBI (2009) 3 SCC 779.".
The same view was reiterated in P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr. (2015) 10 SCC 152.
18.It is well settled that the initial burden of proving that the accused accepted or obtained CC NO. 20/08 CBI vs. Gopi Chand 22 of 49 23 the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise under Section 20 of the Prevention of Corruption Act. In the cast at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of money was not enough to draw the presumption under Section 20 of the Act.
19.After referring to Surajmal v. State (Delhi Administration) (1979) 4 SCC 725, in C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779, it was held as under: "18. In Suraj Mal v. State (Delhi Admn.) (1979) 4 SCC 725, this court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the CC NO. 20/08 CBI vs. Gopi Chand 23 of 49 24 circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable.
The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe."
In State of Kerala and Anr. v. C.P. Rao (2011)6 SCC 450, it was held that mere recovery of tainted money is not sufficient to convict the accused and there has to be corporation of the testimony of the complainant regarding the demand of bribe.
20. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to following observation in Mukut Bihari and Anr. v. State of Rajasthan (2012) 11 SCC 642, wherein it was held as under: "11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the CC NO. 20/08 CBI vs. Gopi Chand 24 of 49 25 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence,either direct or circumstantial, to establish with reasonable probability , that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the the touchstone of proof beyond all reasonable doubt. However, before CC NO. 20/08 CBI vs. Gopi Chand 25 of 49 26 the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complaint is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person."
29.I have gone through the rival contentions. The prosecution has to prove the following main ingredients. Initial demand, demand of bribe at the time of trap, acceptance of bribe at the time of trap and thereafter recovery of bribe money from the possession of the accused.
30.Regarding the initial demand made by the accused on 07.09.90 the prosecution has failed to prove the same as the complainant/PW7 has failed to point out the time, place and manner in which initial demand was allegedly made by the accused. In this regard PW7 in his cross examination has stated that he had made complaint to the CBI officials CC NO. 20/08 CBI vs. Gopi Chand 26 of 49 27 regarding this case 34 days prior to the trap and after his complaint was verified trap was laid. The complaint ExPW7/A was written after taking paper from the CBI office, while sitting outside the shop. If there was any truth in the said averment of the complainant, then the said fact that he had gone to the accused at a particular time on 07.09.90 at the particular place, wherein the accused had demanded bribe from him should have been mentioned in the complaint dated 10.09.90, whereas there is no specific indication in the complaint Ex PW7/A, as to where the accused had demanded the initial bribe from him.
31.Further this initial demand of bribe could not be verified by Trap Laying Officer(hereinafter referred to as TLO) PW8 Mehr Singh, who has admitted in his cross examination that he did not visit DRM office, nor verified the complaint, or contacted any senior officers of railway for verification of allegations in the complaint and the IO of this case PW9 Raj Singh has admitted that the FIR was lodged after a delay of 3 days of alleged demand. This delay of 34 days has not been explained by the complainant, as to why he kept mum for 34 days after alleged initial demand by the accused. It is not that CC NO. 20/08 CBI vs. Gopi Chand 27 of 49 28 the accused was not conversant with the procedure of the CBI so that the said time was spent by him in finding out where to lodge his complaint, as PW7 has admitted in his cross examination that he had got trapped three other persons that too of Railways from the CBI. Therefore three days delay on the part of the accused could not be explained. This also creates doubt regarding the said factum of initial demand dated 07.09.90, rather the perusal of the complaint shows that the date 07.09.90 seems to have been added later on and there are no initials against the said date 07.09.90, which also casts doubt, if any initial demand was ever made on 07.09.90 as alleged by the prosecution. Therefore the said initial demand has not been proved.
32.Regarding the demand, acceptance and recovery of bribe during the trap proceedings, it would be relevant to discuss the evidence of the material prosecution witnesses in this regard.
33.In this regard PW1 who is a shadow witness has deposed regarding the time, place and manner of the incident. He has also proved handing over memo ExPW1/A, which was prepared on 10.09.90 i.e on the day of trap. He has also CC NO. 20/08 CBI vs. Gopi Chand 28 of 49 29 identified his signatures on the recovery memo ExPW1/B and also identified 500/ rupees currency notes, which were sprinkled with the phenolphthalein powder.
34.Regarding the trap, PW1 in his examination in chief has stated that after they reached to the spot he was sitting in the office of the accused Gopi Chand from where his activities were visible. After some time accused left his seat alongwith the file in his hand, thereafter complainant came and kept rupees in the table drawer of Gopi Chand, thereafter accused Gopi Chand came back to his seat and complainant whispered in the ear of accused Gopi Chand, which he could not hear. Thereafter complainant left the room of accused Gopi Chand and when he was sitting nearby accused Gopi Chand he saw Gopi Chand open the drawer, but he could not see what he had done. Then CBI team came and arrested him. Thereafter the said witness was declared hostile by the PP for CBI on certain aspects.
35.In his cross examination he has stated it was correct that he had stated to the IO in his previous statement that complainant handed over Rs. 500/ to Gopi Chand and Gopi Chand opened his table drawer in which complainant kept money. He further CC NO. 20/08 CBI vs. Gopi Chand 29 of 49 30 stated in the said cross examination carried out by the PP for CBI that it was correct that when accused dipped his left hand into sodium carbonate solution, it turned into pink colour, but he does not remember whether it turned pink at the time of his right hand wash.
36.However, in his cross examination by the defence counsel he has stated that it is correct accused Gopi Chand left his seat alongwith the file in his hand and thereafter the complainant came and kept rupees into the drawer of Gopi Chand.
37.From the testimony of PW1 as whole, it appears that he is a vacillating witness, as firstly in his examination in chief he stated that accused Gopi Chand left his seat alongwith the file in his hand, thereafter complainant came there and kept rupees in the table drawer of Gopi Chand. Thereafter when he was declared hostile by the Public Prosecutor for CBI. He admitted to the suggestion of the prosecution that complainant handed over Rs. 500/ to accused to open his table drawer in which complainant kept money, thereafter lastly in his cross examination he reaffirmed the position which took in his initial examination in chief, when accused left his seat the complainant kept rupees in the absence of Gopi Chand, CC NO. 20/08 CBI vs. Gopi Chand 30 of 49 31 whereby from the reading of the testimony of PW1 as a whole, it appears that he had only nodded yes to certain suggestions given by the Public Prosecutor. The bottom line of his testimony is that when the accused had left his seat and complainant came there and kept rupees in the drawer of the accused, meaning thereby there was no demand, acceptance of money at the time of trap by the accused, as per testimony of PW1.
38.Now adverting to PW3 another independent witness Sh.
Y.N.Sota. He in his examination in chief has stated that when the complainant entered the office of accused Gopi Chand no one was with him. He was also declared hostile by Public Prosecutor of the CBI. In his cross examination by PP for CBI he stated that it is correct after getting signal in presence of CBI team PW1 recovered notes Rs. 500/ from the table drawer of accused Gopi Chand.
39. However, in his cross examination he has stated that it is correct that he could not see what was being done by the accused at the time of transaction between complainant and accused and he does not know anything about the incident. He only came to know about the same after hearing CC NO. 20/08 CBI vs. Gopi Chand 31 of 49 32 commotion at the instance of CBI officials and he does not remember which hand of the accused turned into pink colour when put into solution, whether it was left or right hand.
40.Taking into account the overall testimony of PW2, who is also an independent witness, it appears that he knows nothing about the incident, as nothing happened in his presence, as admittedly only the complainant and PW1 went into the room of the accused Gopi Chand and no one else and he was waiting with the other CBI officials outside the room for the predecided signal. He only went by certain suggestions given by the Public Prosecutor. In his cross examination, he denied that he ever witnessed the incident of trap. Therefore it appears that he knows nothing about the incident, as nothing happened or could have happened in his presence, as he was neither the witness to the trap transaction, nor to the witness of demand, acceptance and recovery.
41.PW4 is Smt. Archana Joshi, who had carried out the inspection around May 1990 at Shakur Basti Railway Station, where complainant was running a stall and during inspection by her number of irregularities were found at the catering stall of complainant and one one Putti Lal, this included the CC NO. 20/08 CBI vs. Gopi Chand 32 of 49 33 presence of unauthorized vendors, no rate lists, stalls being dirty and utilization of the extra land by the above Vendors. She has proved her inspection report which is ExPW4/B and the relevant file containing the inspection report is ExPW4/A. She has also deposed that as per practice the imposition of fines on any catering contractor has to be approved by the Area Manager. Closure of stall was within her competency. She had recommended closure of stalls for 15 days in this matter.
42.In her cross examination she has stated that accused Gopi Chand had no power to close/open the stall and during her tenure as DCS Catering till this incident occurred, no complaint was received against the accused Gopi Chand, which may have reflected adversely on his working.
43.Now adverting to the Star witness of the prosecution i.e complainant PW7 Leela Dhar. He has deposed that he had been doing catering work with the Indian Railways at Shakur Basti Railway Station, where he was having two stalls regarding snacks, tea, cold drinks etc. The officers of Commercial Section of Railways usually inspect the stalls and before laying the trap there was inspection at Shakur Basti CC NO. 20/08 CBI vs. Gopi Chand 33 of 49 34 Railway Station 56 days prior to the same. After inspection he was called in Delhi Commercial Division of Railways, where he was told that there were irregularities in the running of stall i.e his staff was not in uniform, his vendor was not keeping proper cleanliness, therefore his stall had been locked, if he did not give the demanded money to them. He was asked to give Rs. 500/ per month per stall. Since he was unable to meet the demand and his conscience also did not allow him to pay the bribe he approached the senior officers of the CBI and made a complaint dated 10.09.1990 in his handwriting, which is ExPW7/A. He produced Rs. 500/ and Rs. 300/ for laying the trap to the CBI officer Mehar Singh i.e PW8.
44.He also deposed regarding the demonstration being given in the CBI office with regard to the chemical properties of phenolphthalein powder in presence of public witnesses and preparation of handing over memo and thereafter CBI team consisting of pubic witnesses and him leaving for the spot and thereafter he went to the room of the accused, where he told him that his share be given to him, remaining be given to the dealing clerk. Thereafter he offered Rs. 500/ to Gopi Chand, which he accepted and gave Rs. 300/ to dealing clerk who CC NO. 20/08 CBI vs. Gopi Chand 34 of 49 35 was sitting on the opposite seat, which he also accepted. Thereafter he gave the predecided signal to the CBI team. The CBI team swung into action. The public witnesses were also standing by him. Thereafter accused Gopi Chand was caught, but in the said confusion the said dealing clerk ran away with his amount of Rs. 300/, and could not be apprehended. Accused Gopi Chand had taken the money and put the same into his drawer, which was taken out from the drawer by public witness and from the said drawer many other envelopes were also recovered. On the said envelope(s) containing currency notes, various words were written namely DTM, DCM, ATM. Thereafter hand washes of accused Gopi Chand were taken, the same turned into pink colour when he dipped his fingers into the solution. He also identified his signatures on the recovery memo and has also identified the currency notes which he gave to the accused at the time of trap.
45.He was extensively cross examined by Ld. Defence counsel.
In his cross examination he stated that he had made a complaint against Brij Pal and Gopi Chand between 18.05.90 and 29.08.90 to Sr. DCM in which he had stated that these CC NO. 20/08 CBI vs. Gopi Chand 35 of 49 36 officials were harassing him and he was also called to the office and was asked to give bribe, as all the other contractors were doing the same. However he admitted that he did not give any copy of the said complaint to the CBI officers in this regard.
46.He also stated that he made complaint to the CBI officers regarding this case 34 days prior to the trap. He did not specify as discussed above, as to why there was a delay of 34 days in lodging the FIR. Even though no preverification proceedings were conducted by the CBI.
47.Complainant was confronted with regard to improvements made by him with respect to his previous statement recorded U/s 161 Cr.PC, as in the said statement he never stated that he had been carrying money for double trap i.e carrying Rs. 500/ and Rs. 300/ separately for trapping the accused and the dealing clerk who was sitting opposite to him. This factum of other dealing clerk also receiving Rs. 300/ from him as bribe, puts grave doubts on the prosecution story, as the same does not find mention either in the charge sheet or in the statement of any other witnesses.
48.Normally, the credibility of any witness who comes to depose CC NO. 20/08 CBI vs. Gopi Chand 36 of 49 37 in the witness box, before he does so, is 100% i.e his credibility before his examination in chief is fully established and it remains so during his examination in chief, unless the witness is declared hostile by the prosecution or the party calling the said witness and is cross examined by them. The credibility of any witness is generally diminished only during his cross examination due to factors such as objectivity, bias etc.
49.In this case PW7 has admitted in his cross examination that he had trapped three other Railway officials prior to the trap in this case. Though the credibility of this witness is not diminished by the fact that he was instrumental in trapping three other Railway officials prior to the trap in question. However, it does raise a question mark that a person who had trapped three other persons of the same department would become so known to the officials of the said department that nobody would even dare to talk to him, or to confront him, or to ask any bribe from him. Therefore this assertion of PW7 that accused demanded bribe from him appears to be against the normal human conduct, as everybody by that time would have been aware about the reputation of the complainant that he CC NO. 20/08 CBI vs. Gopi Chand 37 of 49 38 does not pay any bribe. Therefore the accused and all other persons would have been highly chary of demanding bribe from him.
50.Further the complainant has stated that there was a double trap as Rs. 500/ was given to the accused and Rs. 300/ to another dealing clerk sitting closeby, who ran away from the spot and was never apprehended. There is no mention in this regard either in the charge sheet or in the testimony of any other witness examined by the prosecution. Therefore it appears that he is inventing stories of his own. He was also confronted with his previous statement in writing U/s 161 Cr.PC, wherein the said facts were not recorded. Therefore the credibility of this witness taking into account that he was instrumental in three other trap prior to the trap in question and he is propounding a new story of double trap diminishes his credibility to a large extent, as he has made material improvements in his examination in chief itself.
51. More so, as the trap laying officer PW8 Mehar Singh has admitted in his cross examination that the trap was made against Gopi Chand only and complainant was allowed to keep cash of Rs. 500/ only with him at the time of trap. Therefore it CC NO. 20/08 CBI vs. Gopi Chand 38 of 49 39 not clear if after search of the complainant had been taken and he was only allowed to keep Rs. 500/ by the trap laying officer, how he was in possession of another Rs. 300/ which he allegedly gave to other dealing clerk who accepted the same and ran away from the spot. This shows that PW7 is not a credible person and his objectivity to depose in the court is clearly dented in these circumstances.
52.The testimony of PW7 is also not corroborated by the independent public witnesses, as discussed above, PW1 has deposed as a whole that accused left his seat alongwith the file, when they reached there, thereafter complainant came there and kept rupees into the drawer of the accused. From the overall testimony of PW2 it appears that he knows nothing about the incident, as nothing happened in his presence and he could not see the transaction in question, as he was standing outside the room alongwith the CBI officials awaiting for the predecided signal. Therefore he was not in a position to see the trap.
53.PW2 has also stated in his cross examination that he does not remember which hand of the accused turned into pink colour when put into solution, whether it was left or right hand. CC NO. 20/08
CBI vs. Gopi Chand 39 of 49 40
54.PW9 has similarly in his cross examination has stated it is correct that this fact has also come in the investigation that the hand washes of the accused did not turn into pink colour. Therefore taking into account the testimonies of PW2 and PW9, the investigating officer, it is quite doubtful whether the trap money was ever touched by the accused, as the very fact whether his left hand or right hand, while dipping into the solution of phenolphthalein powder turned into pink colour or not is in itself doubtful. Even PW8 TLO sated in his examination in chief that only left hand of accused Gopi Chand turned into pink and right hand did not turn into pink colour. Though the object tangible i.e right hand washes and left hand washes were lost by the Railway officials, as they were sent to them during the departmental inquiry which took place against the accused, but in view of the testimony of PW2, PW9 and PW8 the very fact that the accused had touched the said currency notes with his hands is in doubt.
55.Further PW4 has admitted in her cross examination that accused Gopi Chand had no powers to close/open the stalls. Therefore it also does not stand to reason that the complainant PW7 who had been working with the Railways for a long time CC NO. 20/08 CBI vs. Gopi Chand 40 of 49 41 and had also been involved in three similar trap against the Railway officers would not be knowing that accused Gopi Chand had no powers either to open or to close his stalls. Therefore the accused was in no way or in a position to favour him.
56.PW9 has stated in his cross examination, it is correct that in the investigation at the time of filing of closure report, it has come on record that no formal order was required for re opening of stalls in question as per the statement of DCS Catering, Northern Railway. He also deposed it is correct that it has come in the investigation that the accused could not show any favour to the complainant, as he had no authority to get the stalls closed or reopened.
57.Therefore since the accused was in no position to show any favour or disfavour to PW7 either getting his stall closed or opened, it is hard to imagine, why would the complainant who was an old experienced hand running his stall at Shakur Basti Railway Station would not know this fact that accused had no authority either to favour him or disfavour him. Therefore this fact also intrinsically erodes the credibility of this witness further to a large extent, thereby it appears that credibility of CC NO. 20/08 CBI vs. Gopi Chand 41 of 49 42 this witness as a whole, if the same is quantified on the probative scales, where the probability of happening any event is measured would be reduced to almost 30%, when compared to 100%, which it was at the time of start of examination in chief, which gradually got diluted in the examination in chief itself due to the reasons already discussed above and it further got eroded to a large extent due to various circumstances, which came in his cross examination as enumerated above.
58.Taking into account the testimonies of all the prosecution witnesses including that of PW1, PW8 and PW9 and also taking into account the testimony of PW7 and coupled with the fact that the object tangible(s) i.e right hand wash and left hand wash did not turn into pink colour, nor they were produced for inspection of court. From the analysis of evidence as discussed above, it appears that complainant had kept the money into the drawer of the accused without any actual demand/acceptance of bribe by the accused, that is the reason why hand washes of the accused did not turn into pink colour. If they did, the same should have been produced for the inspection of the court. In the absence of the same no CC NO. 20/08 CBI vs. Gopi Chand 42 of 49 43 advese inference can be drawn against the accused merely on the basis of the report proved by PW2, without actual production of the object tangible(s).
59.It has been held in the judgments CM Girish Babu vs. CBI 2009(3) SCC 779, (ii) Banarasi Dass Vs. State of Haryana 2010(4) SCC 450, (iii) State of Maharashtra Vs. Dhyaneshwar Laxman Rao Wankhede 2009(15) SCC 200,
(iv) M.K.Hashan Vs. State of Kerala (1996) 11 SCC 720: "mere recovery of money is not sufficient to held a person guilty for offences U/s 7 & 13 of PC Act"
60.The relevant para of the judgment M.K.Hashan Vs. State of Kerala (1996) 11 SCC 720, is reproduced as under: In the light of the conflicting versions and suspicious features on this crucial aspect, the plea of the accused that the notes were put in the drawer without his knowledge, does not appear to be improbable. In any event, PW1's version does not appear to be wholly reliable. It is in this context, the courts have cautioned that as a rule of prudence some corroboration is necessary. In all this type of cases of bribery, two aspects are important. Firstly there must be a CC NO. 20/08 CBI vs. Gopi Chand 43 of 49 44 demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Here demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification. Unfortunately, on this aspect in the present case, there is no other evidence except that of PW1.
Since PW1's evidence suffers from infirmities, some corroboration was needed but not found. There is no other witness or any other circumstance which supports the evidence of PW1 that this tainted money as a bribe was put in the drawer as directed by the accused.
Unless the court is satisfied on this aspect it is difficult to hold that the accused tacitly accepted the illegal gratification or obtained the same within the meaning of Section 5(1)(d) of the Prevention of Corruption Act, particularly when the version of the accused appears CC NO. 20/08 CBI vs. Gopi Chand 44 of 49 45 probable.
61.Facts of the above case are clearly apposite to the facts of the present case, here also there is no evidence that accused demanded bribe from accused, accepted the same, thereafter kept the same into his drawer.
62.In these circumstances it is apparent that Rs. 500/ were recovered from the drawer of the accused without any actual demand/acceptance of the same by him.
63.Further there are so many lacunas in the prosecution case which makes prosecution case even otherwise doubtful. As discussed above, there was a three days delay in lodging an FIR, which has not been explained. Further no preverification proceedings were done by the CBI officials as per the established procedure, nor this omission has been explained. No entry has been proved on the record regarding the issuance of phenolphthalein powder and return of remnant to the Maalkhana Incharge after demonstration.
64.There is no DD entry regarding the leaving of the CBI team for the spot on 10.09.1990, nor there is no DD entry regarding the return of exhibits or deposits of the same with the malkhana Incharge after carrying out the trap including the object CC NO. 20/08 CBI vs. Gopi Chand 45 of 49 46 tangible(s) i.e right hand wash and left hand wash, nor there is any link evidence regarding sending of the hand washes to the CFSL laboratory, as no entry of Maalkhana or Caretaker has been produced in this regard. Therefore the chances of said exhibits being tempered with during their journey from the office of CBI to CFSL office cannot be ruled out.
65.Further certain material witnesses were not examined by the prosecution i.e no other witness of the Railways, who was sitting in the office of the accused was examined, as he would have been in best position to witness the alleged transaction of trap i.e alleged demand, acceptance and recovery of money from the accused. Infact PW7 stated that he had handed over Rs. 300/ to another person sitting in the same room, who ran away from the spot. This fact was not verified or corroborated by the prosecution witnesses including the TLO or IO. In any case, if any Railway official was sitting near the table of the accused he should have also been examined, as he was in best position to see the incident and could have corroborated the testimony of PW7 regarding time, place and manner of trap incident. Further recovery memo ExPW1/D bears the signatures of accused dated 08.09.10, whereas the actual trap CC NO. 20/08 CBI vs. Gopi Chand 46 of 49 47 was carried out on 10.09.90, the incongruency in the date on said memo has also not been explained. It also casts doubt on the date of actual trap being carried out by CBI on 10.09.90, which was one of the prime reason, why CBI had filed earlier closure report.
66.In view of the above discussion given, the entire mass of prosecution and defence evidence analyzed on the record, how likely is this evidence given that accused demanded and accepted the bribe money which was also recovered from him which can be termed as likelihoodI(propositionI) or how likely is this evidence given that accused never demanded, accepted bribe money which was not recovered from him, which can be termed as likelihoodII(propositionII) The probative force of this likelihood method depends upon the relative sizes of the two likelihoods i.e likelihoodI and likelihoodII.
67.How much stronger is this evidence depends how much propositionI is greater than propositionII or vice versa. If likelihood propositionII is much greater than likelihood propositionI given the mass of entire evidence lead on the CC NO. 20/08 CBI vs. Gopi Chand 47 of 49 48 record by the prosecution or defence then the accused is likely to be acquitted & vice versa, the accused is liable to be convicted if both are equals then it can be said that both of them have equal probative value.
68.In view of the above discussion, it is apparent that the probative force of propositionII i.e likelihoodII is much greater than the likelihoodI or propositionI, that is to say that the probative force of the evidence lead on the record in favour the propositionII is much much greater than propositionI i.e likelihoodI which favours innocence of the accused.
69.On the scale of 1 to 10, where happening of any event is measured the probative force of the entire mass of the evidence lead on record taken as a whole is touching the point of almost uncertainty. It can be given at the most 4 points on such scale of '10' i.e 40% probability '1' being the certainty or 100%. On such kind of evidence, it can be said that it is highly unlikely that the accused was guilty of the offence for which he has been charged. The prosecution has to prove its case beyond reasonable doubt and on said scales it should be CC NO. 20/08 CBI vs. Gopi Chand 48 of 49 49 touching the point of certainty if not one, it should be somewhere around 8 or 9 that is to say 80% and 90% which is not the case in hand. In these circumstances, accused is liable to be acquitted of the charges U/s 7 & 13(1)(d) r/w 13(2) of PC Act 1988 of PC Act. Accused has already furnished bail bond U/s 437A Cr.P.C at the stage of final arguments which will remain in force for a period of 6 months from today as stipulated in the said section.
70.File be consigned to Record Room.
ANNOUNCED IN THE OPEN (Sanjeev Aggarwal)
COURT ON 24.05.2016 Special Judge,
CBI03 (PC Act)
Delhi/24.05.2016
CC NO. 20/08
CBI vs. Gopi Chand 49 of 49