Delhi District Court
State (Cbi) vs Jamuna Dass Nagar on 23 January, 2012
1
IN THE COURT OF SH. DHARMESH SHARMA
SPECIAL JUDGE03 CBI NEW DELHI DISTRICT,
NEW DELHI
CC No. 09/2011
RC No.52 (A)/2003/CBI/ACB/ND
In re:
STATE (CBI)
VS
JAMUNA DASS NAGAR
S/O LATE SH. SUKH PAL
R/O B47, MAGAZINE ROAD,
MAJNU KA TILA, DELHI110054.
PERMANENT ADDRESS :
VILLAGE TODA BHIM
PS KHAS, TODA BHIM, DISTRICT
KAROLI, RAJASTHAN.
Date on which charge sheet was filed - 15.10.2004
Date on which charges were framed 14.09.2005
Date on which judgment was reserved13.01.2012
Date on which judgment was Pronounced 20.01.2012
APPEARANCES:
Mr. A. K. Mishra, Ld.Sr.PP for CBI.
Mr. R.P. Shukla, Ld. Counsel for the accused.(Mr.M.P.Singh,
H.K.Sharma and Hamid Ahmed represented the accused
during the trial)
JUDGMENT
1. Accused Jamuna Das Nagar, s/o late Shri Sukh Pal, a public State (CBI) v. Jamuna Das Nagar Page No.1/28 2 servant posted as Tax Assistant in the I.T.O., Vikas Sadan, New Delhhi, has been arraigned for trial by the State (CBI) on the charge of demanding and accepting bribe of Rs.1,000/ from the complainant Shiv Ram Saraswat, s/o Onkar Prasad Saraswat in order to deliver him the refund voucher of Rs.10,801/ towards excess income tax paid by him for the year 200203. FACTS
2. This case was registered on the basis of complaint Ex.PW1/C lodged by the complainant Shiv Ram Saraswat( PW2) alleging that he had been making several rounds to the Income Tax Department, Vikas Bhawan, New since December 2002 to collect his refund cheque in respect of assessment year 200203 which was not delivered to him as he did not pay any bribe to Om Sharma(PW7); that on 23.02.2003 he visited Income Tax Department, Delhi and inquired about the status of his refund order from Om Sharma (PW7) who directed him to contact the accused Jamuna Das Nagar, Dealing Assistant; that the complainant met the accused, who apprised him that his earlier refund voucher was ready but became time barred as it was not dispatched and for preparation of a new refund voucher/cheque, the accused demanded Rs.1000/ as bribe; that the complainant had no intention to grease the palms of the accused and thus he State (CBI) v. Jamuna Das Nagar Page No.2/28 3 lodged the complaint , on the basis of which, the present FIR Ex.PW1/D was registered and the matter was entrusted to Trap Laying Officer Inspector Umesh Vashist (PW14).
3. The case of the State (CBI) is that a trap team was organized including the independent witnesses Anand Sarup Sharma, UDC from MCD, Delhi (PW11) and Hanumanth Rao Murli,, UDC of Sales Tax Department(12); that Rs.1,000/ in the denomination of 10 GC notes of Rs.100/ each were provided by the complainant Shiv Ram Saraswat (PW2) and Rs.200/ were kept as contingency and the numbers of currency notes were noted down in the memo Ex. PW2/E ; the GC notes of Rs.1000/ were treated with Phenolphthalein Powder; that as generally done in such cases, the reaction of Phenolphthalein Powder with Sodium Carbonate was shown during the pre trap proceedings before the independent witnesses; that a digital recorder was obtained which was given to the complainant giving instructions how to use it and the entire proceedings were narrated in the handing over memo Ex.PW2/E prepared prior to departure from the CBI Office.
4. It is then brought out in the chargesheet that the CBI team reached the office of the accused at 3.00 PM; that the independent witnesses were instructed to remain as close as possible to the State (CBI) v. Jamuna Das Nagar Page No.3/28 4 PW2 complainant and oversee the transaction; that the remaining trap members took positions at the office of the accused; that on being approached, the accused demanded and accepted the bribe amount from the accused and kept the same in the upper left shirt pocket and further instructed complainant (PW2) to hand over Rs.50/ to another person whose identity was disclosed as Ajit Singh(PW 16) of Village Boraki, District Gautam Budh Nagar, Noida, a private person who was assisting the accused in his nefarious activities; that on receipt of secret signal, the accused was apprehended and the tainted money Ex.P1 to Ex.P10 was recovered from his left side upper shirt pocket that was seized vide memo Ex.PW2/F and Rs.100/ Ex.P11 were recovered from Ajit Singh who was apprehended as well; that handwash of the accused beside the wash of the left side shirt pocket confirmed that the accused had accepted the bribe amount.
5. It is the case of the State (CBI) that after examination of the witnesses, tape recorded conversation was heard, the transcript Ex. PW 2/G was prepared from the audio cassattee Ex. P12 which confirmed that accused had demanded and accepted bribe of Rs. 1000/ from the complainant (PW2) in order to issue fresh refund voucher for Rs.10,801/ dated 23.09.2003 Ex.PW2/D. The accused was arrested and investigation was handed over to PW15 State (CBI) v. Jamuna Das Nagar Page No.4/28 5 Inspector Sandhipini Garg on 23.10.2003 after obtaining permission u/s. 17 of the PC Act Ex.PW15/A from the court. Needless to state that after obtaining expert reports and sanction for prosecution u/s 19 of the PC Act, 1988 and on completion of investigation, the present charge sheet was filed against the accused.
CHARGE
6. The accused being a public servant was charged for demanding and accepting bribe of Rs.1000/ from the complainant for issuing the refund voucher by abusing his official position by corrupt or illegal means punishable u/s. 7 and 13 (1)
(d) r/w 13 (2) of the PC Act, 1988.
7. The accused pleaded not guilty to both counts of the charges and claimed trial.
PROSECUTION EVIDENCE
8. The prosecution in order to prove its case examined as many as 16 witnesses.
9. PW1 was Prahlad Singh, posted as Joint Commissioner of Income Tax, Range21, New Delhi, who deposed that he was State (CBI) v. Jamuna Das Nagar Page No.5/28 6 competent to appoint and remove the accused Jamuna Das Nagar who was working as a Tax Assistant in the Department of Income Tax and he passed the sanction order dated 01.10.2004 vide Ex.PW1/A for prosecution of the accused. At the outset, no challenge is made to this piece of evidence by the defence. The sanction order is speaking order and it does not suffer from any error, mistake or illegality.
10. PW2 was Shiv Ram Sarawat, who was the complainant, who supported the prosecution case and I shall dwell on his evidence later on in this judgment.
11. PW3 was Dr. Rajender Singh, Principal Scientific Officer, CFSL. He deposed about examining the questioned cassettes Q1 and Q2 (Ex. P12) containing the tape recorded conversation as between the complainant and the accused visavis specimen voice S1 and S2 and proved his report Ex.PW3/A dated 23.03.2004. The report indicates that the questioned audio cassette Q1(A) contained the voice of Jamuna Das Nagar, while Q1(B) contained the voice of Om Parkash Sharma in terms of the specimen voice S1 of accused and S2 of Om Parkash Sharma. I shall dwell on his evidence later on in this judgment. State (CBI) v. Jamuna Das Nagar Page No.6/28 7
12. PW4 was C.L.Bansal, Senior Scientific Officer, CFSL. He deposed that on 01/10/2003 he examined two sealed bottles containing seal of the IO Ex.P27 containing left hand wash and Ex.P28 containing left side shirt pocket wash, which as per his report Ex.PW4/A revealed traces of the presence of Phenolphthalein and Sodium Carbonate.
13. PW5 was G.L.Kasturia, an officer in Ward No.21 (2) of Income Tax Department, Vikas Bhawan, New Delhi. He deposed about the procedure that was being followed for assessment of income tax in his ward and for issuance of refund voucher. He deposed about production cum seizure memo Ex.PW5/A whereby the refund voucher dated 27.12.2002 for Rs.10,801 Ex.PW2/B was seized by the IO. The income tax file for the year 200203 of the complainant with refund voucher dated 23.09.2003 for Rs. 10,801/ was prepared by the accused that was proved vide Ex.PW2/D. He also deposed that Ajit Singh was not an employee of the income department.
14. PW6 was Bhagirath Singh Chauhan, who was posted as Tax Assistant in Ward no. 21/1. In reference to register D13 , which was a centralised refund cell register, range 21 for financial year 200203, he deposed that vide entry no.1813 assesse Shiv Ram State (CBI) v. Jamuna Das Nagar Page No.7/28 8 Saraswat was entitled the refund of income tax which registers are Ex.PW6/A as reflected vide Ex.PW6/B.
15. PW7 was Om Sharma. He was Senior Tax Assistant during the relevant time. This witness deposed about the procedure that was being followed for refund voucher and he deposed that refund cheque Ex.PW2/D was prepared by accused Jamuna Das Nagar.
16. PW8 was D.N.Kar, who was posted as an Additional Commissioner during the relevant time. He was associated during the investigation of this case after the accused was apprehended.
17. PW9 was Bhoop Singh, who was working as DDOCIT VII, Vikas Bhawan, IP Extension. He deposed handing over the bio data of service record of accused to the IO besides attendance register for the month of September, 2003 Ex.PW9/B vide letter Ex.PW9/A.
18. PW10 was R.K.Singh, Nodal Officer, Bharti Airtel Limited. He produced the mobile call records Ex.PW10/A to Ex.PW10/C in respect of mobile no. 9810475160 in the name of shiv Ram State (CBI) v. Jamuna Das Nagar Page No.8/28 9 Saraswat, also deposing about the call details for the period 15.08.2003 to 25.09.2003 running into 8 pages Ex.PW10/D . This witness also deposed about the mobile record in respect of mobiel no.9810769122 that are Ex.PW10/E and Ex.PW10/F in the name of accused Jamuna Das Nagar besides proving the call detail record w.e.f. 15.08.2003 to 25.09.2003 vide Ex.PW10/G.
19. PW11 was Anand Sarup Sharma. At the cost of repetition, he was an independent witness, who was part of the trap team and I shall dwell on his evidence later on in this judgment.
20. PW12 was Hanumant Rao Murali. He was the other independent witness joined during the trap but unfortunate for the prosecution case this witness was partly under cross examination and on the deferred date it was found that he had expired and therefore his evidence is of no use to the prosecution.
21. PW13 was Dr. S.C.Mittal, Principal Scientific Officer, CFSL during the relevant time who was a Questioned Documents Examiner and handwriting expert. He proved his report Ex.PW13/A thereby suggesting that the handwriting on the refund voucher and cheque Ex.PW2/D dated 29.09.2003 was of Jamuna Das Nagar in terms of specimen English writing marked S1 to State (CBI) v. Jamuna Das Nagar Page No.9/28 10 S10 Ex.PW13/1 to Ex.PW13/10.
22. PW14 was Umesh Vashist, who was the TLO and PW15 was the IO Inspector Sandipini Garg.
STATEMENT OF THE ACCUSED/DEFENCE EVIDENCE
23. On the close of the prosecution evidence , the accused was examined as per Section 313 Cr.PC. On putting the incriminating oral and documentary evidence brought on the record, he admitted that the complainant approached him for obtaining the refund voucher. He denied that he demanded or accepted any bribe from him. He submitted that he was innocent and has been implicated falsely at the behest of the CBI.
24. The accused preferred to file written submissions as per section 313 (5) of the Cr. P.C. thereby alleging that it was never his part of the duty to prepare refund voucher and the complainant met only Om Parkash Sharma, who was a senior officer who gave him the file to despatch the refund voucher; and he complied with the directions ; that complainant then approached him and insisted that the refund voucher be given to him then and there but he did not do so, since it was to be dispatched as per official procedure; that the complainant got angry and thrusted some State (CBI) v. Jamuna Das Nagar Page No.10/28 11 money into his hands and caught hold him yelling and falsely accusing him that he had taken bribe; later the entire proceedings were fabricated and his version was not heard.
25. After recording of statement of the accused, an application was moved by the State(CBI) summon Ajit Singh who was apprehended by the CBI along with the accused but not arrayed as one and instead his statement was recorded u/s 164 of the Cr.P.C. The application was allowed and such witness was examined as PW 16 who did not support the prosecution case. Any how, on the conclusion of such evidence, the accused was examined afresh u/s 313 Cr.P.C and he denied that he had employed any private person to assist him in his duties.
26. I have heard Ld.Sr.PP for the State (CBI) and Ld. Defence Counsel for the accused. I have perused the record carefully and minutely.
27. The legal position which emerges regarding appreciation of evidence in a trap case can be summarized as under :
(i) To succeed in such a case, the prosecution is obliged to prove the previous demand of bribe, its acceptance and the recovery of tainted money;
(ii) The demand can be proved by the testimony of the complainant as well from the complaint made by him if proved in accordance with law;State (CBI) v. Jamuna Das Nagar Page No.11/28 12
(iii) A presumption as to the demand of bribe can also be drawn if the tainted money i.e. the money tendered as bribe money is recovered from the possession of the accused, which presumption of course is rebuttable;
(iv) However, if the explanation given by the accused about the recovery of such money is false, it may be taken as an adverse circumstance against the accused;
(v) If the accused gives some defence that can be scrutinized by the test of preponderance of probability while the prosecution must prove its case beyond reasonable doubt; and
(vi) However if the explanation given is false it may be used adversely against the accused and may strengthen the presumption under Section 20 of the Act.
28. In the light of the said proposition of law and for the fact that even bribe giver is an accomplice and therefor, as as rule of caution his evidence has to be scrutinized carefully to examine whether it is reliable, let us delve into the evidence of PW2 Shiv Ram Sarawat. First thing first, there is no denying the evidence that PW2 Shiv Ram Saraswat as a LIC Agent has been filing his income tax returns and for the assessment year 200203 Ex.PW2/A ,he was entitled to refund of Rs.10,801/ in terms of evidence of PW7 Bhagirath Singh Chauhan, Tax Assistant in the Refund Cell, who produced the Centralized Refund Register Ex.PW6/A vide entry Ex.PW6/B.
29. PW2 Shiv Ram Saraswat gave an exhaustive narration of the sequence of events. He deposed that he went to the ITO Office and met Om Sharma, Tax Assistant several times in connection State (CBI) v. Jamuna Das Nagar Page No.12/28 13 with refunds, who told him that his refund vouhcer/cheque dated 27.12.2002 Ex.PW2/B was ready but he demanded bribe of Rs. 1,000/ to deliver the same but he refused to pay it. PW2 Shiv Ram Saraswat deposed that when he did not oblige Om Sharma (PW7), he threatened him that he would face problems in future in regard to such kind of work. PW2 Shiv Ram Saraswat deposed that he made an oral complaint to Shri G.L.Kasturia (PW5) Income Tax Officer as well as Shri D.N.Kar (Addl. Commissioner), Income Tax regarding not getting his timely refund and their promises went in vain as on few occasions the file was misplaced and on other occasions he was told that the postal stamps were unavailable and therefore refund voucher could not be dispatched. PW2 Shiv Ram Saraswat also deposed that Om Sharma called him several times but he did not respond to his calls as he was not willing to give him the bribe.
30. PW2 Shiv Ram Saraswat then deposed that when he went to the office of income tax on 23.09.2003 again requested Om Sharma to give him the refund voucher; that Om Sharma instructed two persons, one of whom was the accused to locate his file but they were not able to it and then it was Om Sharma, who took out out a bundle of files from his almirah and gave it to accused Jamuna Dass Nagar and other fellow later identified as State (CBI) v. Jamuna Das Nagar Page No.13/28 14 Ajit Singh. PW2 Shiv Ram Saraswat further deposed that accused was able to trace his file and found the refund voucher Ex.PW2/B dated 27.12.2002 but the accused told him that it was stale and he would prepare a new cheque , which he did for Rs.10,801/ Ex.PW2/D. PW2 Shiv Ram Saraswat deposed that accused told him that signatures of the ITO were required to be obtained on the cheque and asked him to come after lunch to collect it and accused demanded Rs.1000/. PW2 Shiv Ram Saraswat that he requested the accused to reduce the bribe amount but he didn't.
31. It is in the evidence of PW2 Shiv Ram Saraswat that he left the office of income tax as he was not willing to pay the bribe amount, however, the accused rang him twice later in the day on which he told the accused that he would come on the next day to collect the refund voucher/cheque; that on the next day, he went to the office of CBI but could not get any help as the duty officer told him that CBI officials were out on some raid and he was asked to come the following day. PW2 deposed that when he was present in the office of CBI on 24.09.2003 he also received a calls from accused inquiring from him as to why he had not come to collect the cheque and he gave him some excuse telling that he would come the next day. It is then in the evidence of PW2 Shiv Ram Saraswat that he went to the office of CBI in the morning of State (CBI) v. Jamuna Das Nagar Page No.14/28 15 25.09.2003 at 10.00 AM and lodged written complaint Ex.PW1/C and thereafter pre trap proceedings were conducted wherein two independent witnesses were joined and he produced the bribe amount in the shape of 10 GC notes of Rs.1000/ in denomination besides Rs.200/ as contingency. He deposed that he was given a digital recorder by the CBI officer with direction to keep it in the left side upper shirt pocket and switch it on as soon as conversation is struck with the accused and in this regard the pre trap proceedings were recorded in the handing over memo Ex.PW2/E, which detailed the procedure in regard to application of Phenolphthalein Powder on currency notes, its reaction with Sodium Carbonate Solution and the numbers of the currency notes.
32. It is in the evidence of PW2 Shiv Ram Saraswat that accused had also called him on his mobile before their departure from the office of CBI and that CBI team reached the Income Tax Office at around 3.00 PM and took positions in the office concerned. PW2 Shiv Ram Saraswat deposed that he approached the accused and who asked as to why he had not come on the previous day to collect the refund voucher/cheque, on which he replied that some of his relative was ill and thus he could not come; that he took the assessment file from the table on which Om Sharma was sitting; State (CBI) v. Jamuna Das Nagar Page No.15/28 16 that he enquired about his cheque and accused told him that everything had been done and only rubber stamp was to be affixed and they discussed about the correction of the PAN Number in the refund papers; PW2 the deposed that the accused then made a gesture in a slow voice asking money from him and he took out the tainted Rs.1,000/ from his upper left side pocket of the shirt and handed over to the accused, who accepted it by his left hand as he was holding the file with his right hand and kept it in the upper left shirt pocket.
33. PW2 Shiv Ram Saraswat deposed that accused also enquired from him " PURE HEIN" to which he replied " GIN LO SIR PURE 1000 HAIN" . PW2 Shiv Ram Saraswat further deposed that he told the accused that as he demanded Rs.1,000/, there was no question of him bringing less amount and accused replied that it was a matter of trust; and then he affixed the rubber stamp on the cheque and offered him tea and also instructed him to give Rs.50/ to Ajeet Singh (PW16). PW2 Shiv Ram Saraswat deposed that he enquired from accused as to why he should pay any money to that person and accused replied that Ajeet Singh is vested with the task of sending advice/refund voucher ; PW2 deposed that he told him that he was not having any change of Rs. 50/ on which accused told that he should not worry as Ajit Singh State (CBI) v. Jamuna Das Nagar Page No.16/28 17 would get it. PW2 Shiv Ram Saraswat further deposed that he passed on one GC note of Rs.100/ in denomination to Ajeet Singh.
34. PW2 Shiv Ram Saraswat then deposed that on such transaction, he gave the pre determined signal to CBI team, who converged on the spot and caught accused Jamuna Dass Nagar from both of his wrists and CBI officials identified themselves to him; that at that time Om Sharma was standing nearby but he left the hall. It is then in the evidence of PW2 Shiv Ram Saraswat that crowd of officials had gathered at the site with public persons and thus the accused was taken to the office of Shri DN Kar, Additional Commissioner (PW8) where the entire trap proceedings were conducted. He further deposed that the bribe amount was recovered from the shirt pocket of the accused by other witness Murli (PW12) Ex. P1 to P10 and the numbers of GC notes were tallied with the details in the handing over memo Ex.PW2/E and were found the same; that hand wash of the left hand of the accused was taken besides left upper side pocket of the shirt in the solution of Sodium Carbonate, which turned pink and such solutions were transferred into two separate bottles Ex.P27 and Ex.P28. He further deposed that seizure memo Ex.PW2/F was prepared ; that one GC note Ex.P11 was recovered State (CBI) v. Jamuna Das Nagar Page No.17/28 18 from Ajeet Singh. He also deposed that tape recorded instrument was played that was was containing audible voice of himself and the accused; and that the tape recording was transferred in an audio cassette that was sealed.
35. PW 2 was put to a grueling cross examination on 10.10.2006, 03.04.2007, 17.07.2007, 07.09.2007 and 28.02.2008 by the defence. I am afraid on meticulous perusal of the entire evidence of PW2 Shiv Ram Saraswat, I find that he strongly stood his grounds and his testimony is very cogent, coherent, and there is nothing to cast any doubt on its reliability. PW2 Shiv Ram Saraswat had no motive to falsely implicate the accused. Rather he had all the motives to implicate Om Prakash but he truthfully deposed about the incident as obviously the latest demand for bribe emanated from the accused. I do not find any merit in the submissions of Shri R.P.Shukla, ld.counsel for the accused that the State (CBI) has made attempts to shield the real culprit i.e. Om Sharma (PW7). It is indeed strange that CBI chose to examine Om Sharma as PW7 despite the fact that he was also a real culprit in the entire episode but it is probably a question of quality of evidence that could not be gathered against him and there is nothing in the tape recorded conversation that he played any significant role on the day in question. Indeed a perusal of complaint Ex.PW2/C would State (CBI) v. Jamuna Das Nagar Page No.18/28 19 show that PW2 Shiv Ram Saraswat had grievance as against Om Sharma, who had been stalling the delivery of refund voucher Ex.PW2/B to him for almost 9 months but the complaint Ex.PW2/C also reflects that it was on 23.09.2003 that money was demanded by the accused. Unfortunate for the accused, he was the wrong person at the wrong time in as much as it cannot be denied that he too demanded money from the complainant for delivering him the refund voucher Ex.PW2/D. One can say that Om Sharma and accused were birds of the same feather but destiny hard struck the accused as he was the last one to raise demand of bribe and accepts the same from the hands of the accused while destiny smiled on Om Sharma who went scot free.
36. Mr. Shukla, ld. Counsel vehemently urged that there is no corroboration to the evidence of PW2 Shiv Ram Saraswat in as much as PW11 Anand Swaroop Sharma did not testify that any demand of bribe was made by the accused before him and he was unable to tell as to how the money came in the pocket of the accused. It may be reiterated here that neither the prosecution nor the accused could rely on testimony of PW 12 Hanumant Rao Murali since his cross examination remained inconclusive. as he died during the trial. So far as PW11 Anand Swaroop Sharma is concerned, indeed he did not say that any demand was made by State (CBI) v. Jamuna Das Nagar Page No.19/28 20 accused in his presence and he did not see the delivery of tainted money to the accused. His evidence suggest that he was standing little away from the accused and the complainant and perhaps did not pay attention to such crucial details. At the same time, it must be seen that the plea that tainted money was forcibly thrusted into the pocket of the accused cannot be accepted since no such suggestion was given either to PW2 Shiv Ram Saraswat or to PW11 Anand Swaroop Sharma or for that matter to the Trap Laying Officer PW14. Nor any suggestion was given to such witnesses that accused on immediate apprehension protested that such money was thrusted in his pocket and or that he was being falsely implicated. Such suggestion was not even given to the officers from the I.T. Department. .
37. In so far as the corroboration is concerned, that comes in the nature of tape recorded conversation, the transcript of which has been proved as Ex.PW2/G. The entire tape recorded conversation contained in audio cassette Ex.P12 was played in the court during the testimony of PW2 Shiv Ram Saraswat who without any challenge in the cross examination identified his voice from C1 to C1 and in that manner onwards upto C20 to C20 and that of the accused as A1 to A1 and in that sequence upto A12 to A12.
State (CBI) v. Jamuna Das Nagar Page No.20/28 21
38. Mr. Shukla, Ld. Counsel for the accused has vehemently urged that transcript does not indicate any demand of bribe by the accused. I am afraid such is not the position. Bare perusal of the transcript would show that more or less the evidence given by PW2 Shiv Ram Saraswat is corroborated by the transcript. Accused as per transcript portion A7 to A7 attributed to him asked "AB AAP AISA KARO KI YEH CHUP CHAAP NIKALO". The tape recorded conversation besides transcript indicate that thereafter PW2 Shiv Ram Saraswat gave the money C14 to C14 and asked accused to count the same. The accused in conversation A8 to A8 asked "PURE NAHI HAIN" on which PW2 Shiv Ram Saraswat from C15 to C15 replied "HAN AAPNE HAZAAR KE LIYE KAHA THA, EK HAZAAR HAIN. PAANCH SOU KAISE HO SAKTE HAIN". The accused replied as per A9 to A9 "GINA NAHI KARTE" and PW2 said as per C17 to C17 "AREY KOI BAAT NAHI, YEH TO GOD FAITH KI BAAT HAI NA SIR". Thereafter the accused asked the complainant to give Rs.50/ to Ajeet Singh. Further conversation reveals that PW2 said that he was not having change and on that accused told him that Ajit Singh would get the change and thereafter Rs.100/ was given to Ajit Singh. It may also be indicated that while the audio cassette Ex.P12 was being played in the Court, the witness also pointed out that his words " State (CBI) v. Jamuna Das Nagar Page No.21/28 22
KHULE NAHI HONGE APKE PASS" addressed to the accused were not reflected in the transcript Ex.Pw 2/G and the accused stated that "YE KHULE KAR DEGA.
39. In the case of Ram Singh & Ors. v. Col. Ram Singh, 1985 (Supp) SCC 611, the conditions necessary for admissibility for tape recorded statements were laid down as under :
(i) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(ii) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial.
(iii) Every possibility of tampering with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(iv) The statement must be relevant according to the rules of Evidence Act.
(v) The recorded cassette must be carefully sealed and kept in safe or official custody.
(vi) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
40. I must indicate here that the tape recorded conversation has been found to be quite audible amply demonstrating State (CBI) v. Jamuna Das Nagar Page No.22/28 23 continuity of conversation without any background distortion. I do not find any merit in the submissions of Mr. Shukla, ld. defence counsel that tape recorded conversation was not transferred into audio cassette in the presence of any independent witness. No suggestion were given to the witnesses that the tape recorded conversation has been tempered with in any manner nor I observe any doubt of such nature. Both PW2 Shiv Ram Saraswat and PW11 Anand Swaroop Sharma supported by P14 TLO deposed that such procedure was done in their presence while the transcript Ex.PW2/G was made on the following day. It is also in evidence that the specimen voice of accused Jamuna Dass Nagar was taken on Audio Cassette S1 Ex.P21 in presence of the witness namely PW11 Anant Swaroop Singh by the TLO PW 14 on 26.09.2003 as per specimen voice memo Ex.PW 11/C. The report of PW3 Dr. Rajinder Singh which is Ex.PW 3/A clearly establishes that the questioned cassette Ex.P12 contained the voice of the same person whose specimen voice was found in cassette Ex.S1. There is no denial by the defence that specimen voice of the accused was taken in the manner deposed by the witness.
41. Much mileage was sought to be drawn by Sh. Shukla, Ld. Counsel for the accused to the effect that PW 16 Ajeet Singh State (CBI) v. Jamuna Das Nagar Page No.23/28 24 denied that he was employed by the accused for doing any work and he denied that he had taken any amount from the complainant. PW 16 did not support the prosecution case but in his cross examination Court observation was recorded that the witness had been brought by his elder maternal brother and the witness appeared to be suffering from some mental disorder Court observation was also made that the witness was able to reply to the question after taking lot of time and explanation. It was informed that the witness had undergone several heart surgeries and had lost mental capacity to understand things and give rational answers. Anyhow, the witness did admit that he had acquaintance with the accused and his refusal on the point that his statement u/s 164 Cr.PC was not recorded cannot make any crack in the prosecution case. The defence admitted the fact that statement of witness u/s 164 Cr.P.C. Ex.PW 16/PA was recorded before the Magistrate during the course of investigation. Even de hor the statement u/s 164 Cr.PC the evidence of PW2 supported by PW11 and the TLO categorically bring out that PW Ajit Singh was apprehended at the spot and Rs.100 which was one of the tainted note mark Ex.P11 was recovered from his shirt pocket and the same was reflected in the recovery memo Ex.PW 2/F. The site plan of the place of occurrence was also prepared Ex.PW 11/A where also the presence of PW 16 Ajit Singh is indicated and the State (CBI) v. Jamuna Das Nagar Page No.24/28 25 site plan was not disputed.
42. It is also pertinent to mention that the handwriting on the refund cheque Ex.PW2/D was that of the accused as per report Ex.PW13/A which has not been disputed. It is also in evidence of PW2 Shiv Ram Saraswat corroborated by PW 11 Anand Swaroop Sharma and PW8 DN Kar that the hand wash of the accused was taken in their presence with solution of Sodium Carbonate, which turned pink and the solution was transferred into two clean glass bottles. The prosecution has proved the chemical report by producing PW4 C.L.Bansal, who in its report stated that bottles Ex.P27 and Ex.P28 containing the left hand wash and left side shirt pocket wash respectively contained traces of Phenolphthalein Powder and Sodium Carbonate. The shirt of the accused was produced in evidence marked Ex. P29. There is no explanation by the defence in regard to evidence on the hand wash.
43. It is also proved on the record in terms of evidence of PW5 G. L. Kasturia and PW8 DN Kar that accused was working in the capacity of Tax Assistant vested with the task of preparing refund vouchers . The prosecution has proved the call details by producing PW10 RK Singh, Nodal Officer, Bharti Airtel Limited State (CBI) v. Jamuna Das Nagar Page No.25/28 26 who produced the record of mobile phone no.9810769122 i.e.,in the name of the accused as per customer application/enrollment form Ex.PW10/E and Ex.PW10/F for the period 15.08.2003 to 15.09.2003Ex.PW10/G which indicates that accused called PW2 on 23.09.2003 on his mobile no. 9810475160 at 14:29:35. It also indicates that on the same day the accused called PW2 at 16:59:54 and on 24.09.2003 at 12:50:06. The call detail Ex.PW10/G further indicates that accused called PW2 on 25.09.2003 at 12:57:58. These calls raise an inference about the anxiety of the accused in calling over the complainant PW2 Shiv Ram Saraswat to his office in order to obtain illegal gratification and indicates the conduct of the accused u/s 8 of the Indian Evidence Act. Though such call records are not accompanied with a certificate as per S. 65B of the Indian Evidence Act, the evidence that PW 10 had taken out the print outs was not assailed nor his evidence was challenged about any irregularities in gathering such evidence. Lastly, I do not find any blemish on the part of the TLO in the execution of the trap and in conducting the proceedings.
44. Mr. Shukla, Ld. Counsel for the accused referred to decision in C. M. Girish Babu v. CBI 2009 3 SSC 779 arguing that mere recovery of tainted money from the accused by itself was not sufficient to hold him guilty. I am afraid the decision is no State (CBI) v. Jamuna Das Nagar Page No.26/28 27 support to the defence since the ratio of the case was that "mere recovery of tainted money by itself not sufficient when the substantive evidence is not reliable". In the instant case, the prosecution has been able to prove its case beyond reasonable doubt that accused voluntarily accepted the money knowing that it was a bribe. Another case titled Prem Singh Yadav v. CBI 2001 (2) JCC 1059 was cited thereby arguing that presumption u/s 20 of the PC Act against the accused cannot be raised as the prosecution has failed to prove its case beyond reasonable doubt. Again, I do not see as to how the case law is of any help to the defence. The evidence led by the prosecution amply brings home that accused consciously demanded bribe, pursued the complainant PW2 and finally accepted the tainted bribe money and to my mind, presumption u/s 20 of the PC Act could very well be raised that the illegal gratification was accepted by the accused as a motive or reward for delivery of the refund of the cheque Ex.PW 2/D.
45. In the case of Krishna Ram. v. State of Rajasthan, (2010) 1 SCC (Cri) 147 and (2009) 11 SCC 708, it was held that every acceptance of illegal gratification, whether preceded by a demand or not, would be covered by Section 7 of the Act. But, if the acceptance of an illegal gratification is in pursuance of a demand State (CBI) v. Jamuna Das Nagar Page No.27/28 28 by the public servant, then it would also fall under Section 13 (1)
(d) of the PC Act. The charge under the said two provisions are clearly made out by the prosecution beyond reasonable doubt that there was demand and conscious acceptance of bribe by the accused..
46. In the said view of the discussion, the accused Jamuna Dass Nagar is convicted of the offence u/s 7 and 13 (1) (d) r/w (2) of the PC Act, 1988. Let the accused be heard on the point of sentence on 23.01.2012.
ANNOUNCED IN THE OPEN COURT TODAY: ON 20.01.2012 (DHARMESH SHARMA) SPECIAL JUDGE 03 (CBI) NEW DELHI State (CBI) v. Jamuna Das Nagar Page No.28/28 29 CC No. 09/2011 CBI v. Jamuna Dass Nagar 20.01.2012 Present : Mr. A. K. Mishra, Ld.Sr.PP for CBI.
Accused is present on court bail.
Mr. R.P. Shukla, Ld. Counsel for the accused. Vide separate order of even date, accused Jamuna Dass Nagar is convicted of the offence u/s 7 and 13 (1) (d) r/w (2) of the PC Act, 1988.
Let the accused be heard on the point of sentence on 23.01.2012.
(DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
State (CBI) v. Jamuna Das Nagar Page No.29/28 30 IN THE COURT OF SH. DHARMESH SHARMA SPECIAL JUDGE03 CBI NEW DELHI DISTRICT, NEW DELHI CC No. 09/2011 RC No.52 (A)/2003/CBI/ACB/ND In re:
STATE (CBI) VS JAMUNA DASS NAGAR S/O LATE SH. SUKH PAL R/O B47, MAGAZINE ROAD, MAJNU KA TILA, DELHI110054.
PERMANENT ADDRESS :
VILLAGE TODA BHIM PS KHAS, TODA BHIM, DISTRICT KAROLI, RAJASTHAN.
APPEARANCES: Mr. A. K. Mishra, Ld.Sr.PP for CBI.
Mr. R.P. Shukla, Ld. Counsel for the accused. 23.01.2011 ORDER ON THE POINT OF SENTENCE.
1. Heard on the point of sentence and perused the record.
2. Mr. Shukla, Ld. Counsel for the convict submits that convict Jamuna Dass Nagar is more than 60 years of age and he has been under suspension since the date of incident. It is further urged State (CBI) v. Jamuna Das Nagar Page No.30/28 31 that convict has already crossed the age of retirement and he would be severely impacted financially in as much as his entire retirement benefits would not be released to him by virtue of the CCS Conduct Rules. It is urged that the convict has a marriageable daughter and he would find it very difficult to get a suitable match for her after this conviction due to the stigma. It is stated that his wife is not earning and totally dependent upon him. Lastly it is submitted that convict has suffered agony of trial for about 7 years and he hails from a poor strata of the society. It is, therefore, requested that a lenient view may be taken.
3. Per contra, Mr. A.K. Mishra, Ld. Sr. PP for the CBI has urged that no mitigating circumstances exists in this case so as to take a lenient view in favour of the convict and it is urged that maximum punishment be awarded under the law.
4. It bears repetition that the convict Jamuna Dass Nagar was posted as Tax Assistant in Income Tax Office, New Delhi and he demanded of Rs.1000/ from the complainant to hand over the refund voucher/cheque. The evidence during the trial clearly demonstrates the agony and the frustration of the complainant in not getting his lawful refund for about 9 months due to criminal misconduct or corrupt attitude of the convict and his colleagues.
He had to make several rounds to the ITO Office and the convict exhibited no sensitivities towards him. Though sentencing is a State (CBI) v. Jamuna Das Nagar Page No.31/28 32 difficult task involving balancing of factors such as reformation, retribution as well as the issue of deterrence as the underlying object of the penal laws, in my opinion in matters such as the instant one the punishment must serve as an effective deterrent clearly demonstrating zero tolerance to corrupt activities in all spheres of public life. It must be realized that corruption in our country has acquired gigantic and insurmountable proportions impairing the faith of the people in everything that concerns the discharge of governmental and sovereign functions.
5. In the totality of the facts and circumstances of the case, I sentence the convict Jamuna Dass Nagar to undergo rigorous imprisonment for a period of 3 years u/s 7 of PC Act and also pay fine of Rs. 5,000/ in default to further undergo RI for a period of six months.
6. I further sentence the convict Jamuna Dass Nagar to undergo rigorous imprisonment for a period of 3 years u/s 13 (2) r/w 13 (1) (d) of PC Act and also pay fine of Rs.5,000/ in default to further undergo RI for a period of six months. Both the sentences shall run concurrently. Benefit u/s. 428 Cr.PC. shall be given to the convict.
7. At this stage, an application is moved u/s 389 of Cr.P.C seeking suspension of sentence and grant of bail. Copy given to the Ld. Sr. PP for the CBI who has opposed the same. State (CBI) v. Jamuna Das Nagar Page No.32/28 33
8. Heard. The convict has been regularly appearing in the trial.
The convict appears to be full of remorse and regrets this unsavory incident in his life. The convict is admitted to bail on furnishing PB&SB in the sum of Rs.20,000/ with one surety in the like amount till 22.04.2012.
9. Fine of Rs.10,000/ has been deposited by the convict vide receipt no.0461405. Copy of the judgment da xted 20.01.2012 and and order on sentence dated 23.01.2012 be given free of cost.
10. File be consigned to record room.
ANNOUNCED IN OPEN COURT TODAY: ON 23.01.2011.
(DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
State (CBI) v. Jamuna Das Nagar Page No.33/28 34 CC No. 09/2011 CBI v. Jamuna Dass Nagar 23.01.2012 Present : Mr. A. K. Mishra, Ld.Sr.PP for CBI.
Convict J. D. Nagar is present along with Mr. R.P. Shukla, Ld. Counsel Vide separate order of even date, the convict Jamuna Dass Nagar is sentenced to undergo rigorous imprisonment for a period of 3 years u/s 7 of PC Act and also pay fine of Rs. 5,000/ in default to further undergo RI for a period of six months.
I further sentence the convict Jamuna Dass Nagar to undergo rigorous imprisonment for a period of 3 years u/s 13 (2) r/w 13 (1) (d) of PC Act and also pay fine of Rs.5,000/ in default to further undergo RI for a period of six months. Both the sentences shall run concurrently. Benefit u/s. 428 Cr.PC. shall be given to the convict.
At this stage, an application is moved u/s 389 of Cr.P.C seeking suspension of sentence and grant of bail. Copy given to the Ld. Sr. PP for the CBI who has opposed the same.
Heard. The convict has been regularly appearing in the trial. The convict appears to be full of remorse and regrets this unsavory incident in his life. The convict is admitted to bail on furnishing PB&SB in the sum of Rs.20,000/ with one surety in the like amount till 22.04.2012.
Fine of Rs.10,000/ has been deposited by the convict vide receipt no.0461405. Copy of the judgment dated 20.01.2012 and and order on sentence dated 23.01.2012 be given free of cost.
File be consigned to record room.
(DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
State (CBI) v. Jamuna Das Nagar Page No.34/28 35 State (CBI) v. Jamuna Das Nagar Page No.35/28 36 State (CBI) v. Jamuna Das Nagar Page No.36/28