Delhi District Court
Central Bureau Of Investigation vs Ashok Kumar on 6 March, 2020
IN THE COURT OF SH. SANJAY GARG, SPECIAL JUDGE (PC ACT) (CBI)18,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI.
CBI Case No. : 232/2019.
FIR No. : RCDAI2015A0022.
In the matter of:
Central Bureau of Investigation
Versus
Ashok Kumar,
S/o Sh. Shankar Lal Sant,
R/o House No. 187B, PocketC,
Sidharth Extension, Ashram Chowk,
Nizamuddin, New Delhi.
Date of presentation of charge sheet : 02.01.2016
Date on which judgment was reserved : 22.02.2020
Date on which judgment was pronounced : 06.03.2020
JUDGMENT:
1. The allegations against the accused Ashok Kumar are that while posted as Junior Engineer in the Delhi Agricultural Marketing Board, he demanded illegal gratification of Rs. 30,000/ from the complainant Sh. Naveen Kumar, who was a registered contractor in CPWD, for preparation of bill amounting to Rs. 2 lacs and that he accepted the part bribe amount of Rs. 5,000/ on 10.08.2015 and the remaining amount of Rs. 25,000/ on C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 1 of 35 11.08.2015. It has further been alleged against the accused that after accepting the bribe amount of Rs. 25,000/ from the complainant, he had intentionally concealed or disposed of the same and thereby caused disappearance of evidence.
Case of the prosecution
2. The case of the prosecution is that a written complaint was lodged by the complainant Sh. Naveen Kumar against the accused with the CBI on 10.08.2015. In the complaint, the complainant averred that he was a registered contractor in the CPWD and was awarded two works by the Delhi Agricultural Marketing Board for installation of RACC sheet with precoated galvanized iron profile sheet at Slaughter House and Poultry Market, both situated at Gazipur, Delhi. He further alleged that he had completed the said work in May, 2015 and the bill to the tune of about Rs. 2 lacs in that regard was pending with the department. He also alleged that when he approached the accused, who was posted as Junior Engineer in Delhi Agricultural Marketing Board, Gazipur, Delhi, for preparation of the said bill, he demanded the illegal gratification of Rs. 30,000/ for the same.
2.1. The complaint was marked to Inspector Arjun Kumar Maurya for verification. In order to verify the complaint, Inspector Arjun Kumar Maurya along with the complainant Sh. Naveen Kumar, complainant's friend Sh. Rajeev Jain and independent witness Sh. Jitender Kumar Sharma C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 2 of 35 reached near the office of accused at Gazipur, Poultry Market, Delhi on 10.08.2015 at about 1 p.m. Since the complainant and his friend Sh. Rajeev Jain did not find the accused in his office, the complainant spoke to the accused on phone and the accused informed that he would reach the office at about 2.30 p.m. The complainant along with his friend Sh. Rajeev Jain met the accused in his office at about 2.30 p.m. and when the complainant asked the accused to prepare and finalize his bills, he again demanded the bribe of Rs. 30,000/. The complainant requested the accused to finalize his bills and gave him Rs. 5,000/ with the assurance to pay the balance bribe amount of Rs. 25,000/ on the following day. The conversations between the complainant and the accused during the verification proceedings were recorded in a memory card (Q1) with the help of digital voice recorder.
2.2. After verification of the complaint, the present case was registered on 11.08.2015 vide FIR No. RCDAI2015A0022 under Section 7 of the Prevention of Corruption Act, 1988 (for short, the PC Act).
2.3. The investigation of the case was assigned to Inspector H. S. K. Singh. On 11.08.2015, a trap team was constituted consisting of Inspector H. S. K. Singh, Trap Laying Officer, Inspector Pramod Kumar, Inspector Arjun Kumar Maurya, complainant Sh. Naveen Kumar, his friend Sh. Rajeev Jain and two independent witnesses namely Sh. Jitender Kumar Sharma and Sh. Gopi Raman Kanth. The complainant produced the C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 3 of 35 currency notes of Rs. 25,000/ in the denomination of Rs. 1000/ each. The complainant, his friend and the independent witnesses were informed about the procedure of laying a trap and a handing over/pretrap memo was prepared. The numbers of the said currency notes were recorded in the handing over memo. The demonstration of phenolphthalein powder and its chemical reaction with solution of sodium carbonate was given to the trap team members. The currency notes of Rs. 25,000/ were treated with phenolphthalein powder and were put in the right side front pant pocket of the complainant. The complainant was instructed to hand over the said amount to the accused on his specific demand and give signal by rubbing his face with both hands or giving a miss call on the mobile phone of Inspector H. S. K. Singh after handing over the bribe money to the accused. The introductory voices of independent witnesses Sh. Jitender Kumar Sharma and Sh. Gopi Raman Kanth were recorded in a memory card (Q2) fitted in the digital voice recorder. Sh. Jitender Kumar Sharma was asked to act as a shadow witness and to remain close to the complainant to over hear the conversation and watch the transaction of bribe amount. Sh. Gopi Raman Kanth, the other independent witness, was directed to remain with the trap party.
2.4. During the pretrap proceedings, the complainant made a call to the accused on his mobile phone No. 9911161366 from the mobile phone No. 9818116160 of his friend Sh. Rajeev Jain for fixing the place of meeting.
C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 4 of 35 The accused asked the complainant to come to the office of Delhi Agricultural Marketing Board at Janakpuri, New Delhi. The said call was made in the loudspeaker mode and the conversation was recorded in the memory card (Q2). Thereafter, the trap team left for the office of Delhi Agricultural Marketing Board, Janakpuri, New Delhi. On the way to the said office, the complainant made a call on the mobile phone of the accused from the mobile phone of Sh. Rajeev Jain at about 1 p.m. and the accused informed him that he would be available in the said office after about two and a half hours. The said conversation was also recorded in the memory card (Q2). At about 2.30 p.m., a call was again made on the mobile phone of the accused from the mobile phone of Sh. Rajeev Jain and during conversation, the accused informed that he would reach the Janakpuri office after about one and half hours. The above conversation was also recorded in the memory card (Q2).
2.5. At about 3.50 p.m., the complainant along with his friend Sh. Rajeev Jain and shadow witness Sh. Jitender Kumar Sharma entered the office of Delhi Agricultural Marketing Board, Janakpuri, New Delhi. Before leaving, the memory card (Q2) inserted in the digital voice recorder was given to the complainant, which he kept in his left side Tshirt pocket. The complainant and his friend met the accused in the office of Executive Engineer, which was situated in the basement of the building, and upon demand of bribe by the accused, the complainant handed over Rs. 25,000/ C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 5 of 35 to him outside the said room. The said amount was kept by the accused in his right side front pant pocket. The transaction of bribe was also witnessed by Sh. Jitender Kumar Sharma, who was present outside the said room.
2.6. After making the payment, the complainant along with Sh. Jitender Kumar Sharma came out of the office of Delhi Agricultural Marketing Board and informed Inspector H. S. K. Singh that the bribe transaction had taken place. Thereafter, the CBI team rushed inside the office of Delhi Agricultural Marketing Board and apprehended the accused from the ground floor on the identification of Sh. Rajeev Jain. The accused was asked about the demand and acceptance of Rs.25,000/ as bribe from the complainant but he denied the same. The independent witness Sh. Gopi Raman Kanth took search of the pant pockets of the accused but the bribe amount was not found. The bribe money could not be recovered even after the search of the office premises. Thereafter, the right hand wash, left hand wash and the right side front pant pocket wash of the accused were taken in the solution of sodium carbonate and the same were seized. The pant, which was worn by the accused at the time of trap proceedings, was also seized. All the conversations of the trap proceedings were recorded in the memory card (Q2). After being apprehended, the accused had also voluntarily given his voice specimen, which was also recorded in the said memory card. The accused was arrested. A recovery memo dated C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 6 of 35 11.08.2015 narrating the trap proceedings was prepared in the CBI office. The conversations recorded in the memory cards Q1 and Q2 were heard in the CBI office and the transcriptions thereof were prepared. After the completion of investigation, the charge sheet was filed.
Charge
3. On 15.03.2017, the charge was framed against the accused for the commission of offence punishable under Sections 7 and 13 (2) read with Section 13 (1) (d) of the PC Act and Section 201 IPC. The accused pleaded not guilty and claimed trial.
Prosecution evidence
4. The prosecution examined 15 witnesses in support of its case.
4.1. PW1 Sh. Naveen Kumar is the complainant. He proved his complaint as Ex. PW1/A; the verification report on the said complaint as Ex. PW1/B; the FIR in the present case as Ex. PW1/C; the handing over/pretrap proceedings dated 11.08.2015 as Ex. PW1/D; the spot proceedings/recovery memo as Ex. PW1/E; the transcription cum voice identification memo dated 24.09.2015 as Ex. PW1/F and the transcriptions of the conversations recorded in the memory cards Q1 and Q2 as Ex. PW1/G (Colly.). He also identified and proved the memory cards Q1 and Q2 as Ex. P1 and Ex. P3 respectively.
C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 7 of 35 4.2. PW2 Sh. Jitender Kumar Sharma is the independent witness of the verification as well as trap proceedings. He proved the rough site plan of the trap spot prepared by Inspector Pramod Kumar on the direction of Inspector H. S. K. Singh as Ex. PW2/A; the arrest cum personal search memo of the accused as Ex. PW2/B and the transcription cum voice identification memo dated 28.09.2015 as Ex. PW2/C. He also identified and proved the bottles containing the right hand wash, left hand wash and the right side front pant pocket wash of the accused as Ex. P4, Ex. P5 and Ex. P6 respectively; the wrappers of the said bottles as Ex. P7, Ex. P8 and Ex. P9 respectively and the pant worn by the accused at the time of trap proceedings as Ex. P10.
4.3. PW3 Sh. Surender Kumar, Nodal Officer, Bharti Airtel Limited, proved the customer application form and the accompanying documents submitted by Sh. Rajeev Jain in respect of the mobile phone No. 9818116160 as Ex. PW3/A (Colly.); the call details record of the said mobile phone number for the period 09.08.2015 to 12.08.2015 along with location chart as Ex. PW3/B (Colly.) and the certificate under Section 65B of the Indian Evidence Act as Ex. PW3/C. 4.4. PW4 Sh. Prem Singh Meena, who was posted as Executive Engineer in the office of Delhi Agricultural Marketing Board during the year 2014 2015 and was looking after the work of Gazipur, Delhi, proved the letter dated 18.08.2015 vide which the CBI had required him to produce the work C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 8 of 35 files in respect of installation of RACC sheet with precoated galvanized iron sheet at Slaughter House and Poultry Market, Gazipur, Delhi as Ex. PW4/A; the letter dated 19.08.2015 vide which he had forwarded the said work files along with the measurement books to the CBI as Ex. PW4/B; the work file relating to the installation of RACC sheet at Slaughter House, Gazipur, Delhi as Ex. PW4/C; the work file relating to the installation of RACC sheet at Poultry Market, Gazipur, Delhi as Ex. PW4/D and the measurement books pertaining to the said works as Ex. PW4/E to Ex. PW4/G. 4.5. PW5 Sh. Dinesh Kumar Sharma, who was posted as Assistant Engineer in the office of Delhi Agricultural Marketing Board in the year 2015 and was looking after the work of Gazipur, Delhi, deposed that the firm of the complainant was awarded two works by Delhi Agricultural Marketing Board for installation of RACC sheet with precoated galvanized iron profile sheet at Slaughter House and Poultry Market, Gazipur, Delhi. He further deposed that the work executed by the firm of the complainant was being supervised by the accused and that the bills for payment in that regard were also to be prepared by him.
4.6. PW6 Sh. Rajeev Jain is the friend of complainant. He is also the witness of the verification as well as trap proceedings.
4.7. PW7 Sh. Gopi Raman Kanth is the second independent witness of the C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 9 of 35 trap proceedings.
4.8. PW8 Sh. Saurabh Aggarwal, Alternate Nodal Officer, Vodafone Idea Limited, proved the customer application form submitted by the accused in respect of the mobile phone No. 9911161366 as Ex. PW8/A; the call details record of the said mobile phone number for the period 09.08.2015 to 12.08.2015 as Ex. PW8/B; the certificate under Section 65B of the Indian Evidence Act in that regard as Ex. PW8/C; the subscriber details report of the said mobile phone number as Ex. PW8/D and the letter dated 30.09.2015 whereby the above documents were forwarded to the CBI as Ex. PW8/E; the customer application form submitted by the complainant in respect of the mobile phone No. 9999256766 as Ex. PW8/F; the call details record of the said mobile phone number for the period 09.08.2015 to 12.08.2015 as Ex. PW8/G; the certificate under Section 65B of the Indian Evidence Act in that regard as Ex. PW8/H and the letter dated 30.09.2015 whereby the above documents were forwarded to the CBI as Ex. PW8/J. 4.9. PW9 Sh. V. P. Rao, who was posted as Director, Agriculture Marketing cum Vice Chairman, Marketing Board and Secretary Planning, Govt. of NCT of Delhi in the year 2015, was the competent authority to grant sanction for prosecution of the accused. He proved the sanction dated 04.12.2015 granted by him for prosecution against the accused as Ex. PW9/A. C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 10 of 35 4.10. PW10 Ms. Deepti Bhargava, Senior Scientific Officer, GradeII (Chemistry), CFSL, New Delhi, proved the chemical examination report dated 21.08.2015 in respect of the right hand wash, left hand wash and right side front pant pocket wash of the accused as Ex. PW10/A and the letter dated 01.09.2015 vide which the Director, CFSL had requested the CBI to collect the said report and the exhibits of the case as Ex. PW10/B. 4.11. PW11 Sh. Arjun Kumar Maurya, who was posted as Inspector in CBI, ACB, New Delhi in the year 2015, had conducted the verification of the complaint submitted by the complainant. He was also a member of the trap team.
4.12. PW12 Sh. Deepak Kumar Tanwar, Principal Scientific Officer (Physics), CFSL, New Delhi, proved his forensic voice examination report dated 29.07.2016 in respect of the questioned and specimen voices as Ex. PW12/A. He also identified and proved the digital voice recorder sent by the CBI to the CFSL as Ex. PA.
4.13. PW13 Sh. A. D. Tiwari, Principal Scientific Officer (Photo), CFSL, New Delhi, deposed that on 04.09.2015, he had received two sealed parcels of the memory cards Q1 and Q2+S1 from the CBI with the request to prepare five copies of the contents of the said memory cards. He further deposed that after the preparation of the copies thereof, an intimation was sent to the CBI for collecting the exhibits and the copies thereof vide letter C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 11 of 35 dated 22.09.2015. He proved the said letter dated 22.09.2015 as Ex. PW13/A. 4.14. PW14 Inspector H. Suresh Kumar Singh is the trap laying officer.
4.15. PW15 Inspector Saminder Singh is the second IO of the present case. He deposed that on 27.08.2015, when he was posted as Inspector in CBI, ACB, New Delhi, the then head of ACB Branch had assigned the present case to him for further investigation. He proved the charge sheet as Ex. PW15/A; the letter dated 13.08.2015 vide which Sh. D. K. Barik, the then SP, had forwarded the right hand wash, left hand wash and the right side front pant pocket wash of the accused to the CFSL for chemical examination as Ex. PW15/B; the copy of letter dated 11.08.2015 vide which Sh. Anish Prasad, the then SP, had forwarded the digital voice recorder and the questioned voices contained in memory cards Q1 & Q2 + S1 to the CFSL for voice examination as Ex. PW15/C and the notices dated 24.09.2015 under Section 91 Cr.P.C. issued by him to the Nodal Officers of the respective service provider companies for producing the documents in respect of mobile phone Nos. 9911161366, 9999256766 and 9818116160 as Ex. PW15/D to Ex. PW15/F. Statement of the accused
5. The statement of the accused under Section 313 Cr.P.C. was recorded on 14.02.2020, wherein all the incriminating evidence was put to C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 12 of 35 him. The accused pleaded innocence. He stated that the complainant had not completed the work within the stipulated time and had sought extension of time. He further stated that the complainant was pressurizing him to prepare the final bill without completion of work and since he did not accede to his illegal demand, the complainant falsely implicated him in the present case. However, he chose not to produce any evidence in his defence.
Arguments on behalf of the CBI
6. The PP for the CBI has submitted that from the material on record and the evidence produced during trial, the prosecution has succeeded in proving its case against the accused. She has stated that the material witnesses have fully supported the case of the prosecution and their testimonies are corroborated by the tape recorded conversations and forensic evidence proved on record. She has urged that since the prosecution has proved the guilt of the accused beyond any reasonable doubt, he is liable to be convicted for the charges against him.
Arguments on behalf of the accused
7. On the other hand, the counsel for the accused has submitted that in order to attract the rigors of Sections 7, 13(2) read with 13(1)(d) of the PC Act, the prosecution was under a legal obligation to prove the twin requirements of 'demand and acceptance of bribe money by the accused'. In C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 13 of 35 support of the above submission, he has placed reliance on Mukhtiar Singh v. State of Punjab, (2017) 8 Supreme Court Cases 136; Dashrath Singh Chauhan v. Central Bureau of Investigation, AIR 2018 Supreme Court 4720; P. Parasurami Reddy v. State of Andhra Pradesh, (2011) 12 Supreme Court Cases 294; Subash Parbat Sonvane v. State of Gujarat, AIR 2003 SC 2169; Madan Gopal Singhal v. State, (2016) Delhi Law Times 43 and C. Sukumaran v. State of Kerala, 2015(2) JCC 1322. He has contended that the prosecution has failed to prove both the above requirements. He has argued that the very fact that no tainted money was recovered from the possession of the accused goes to show that no such amount was ever handed over to him by the complainant. He has urged that the forensic reports in respect of phenolphthalein test and tape recorded conversations produced by the prosecution are also not reliable and trustworthy. He has submitted that the burden of proving the guilt of the accused beyond reasonable doubt by clear, cogent and unimpeachable evidence is upon the prosecution and the burden to displace the statutory presumption under Section 20 of the PC Act would rest on the accused only after the foundational facts have been established by the prosecution. He has argued that the matter has remained in the realm of suspicion and since suspicion, howsoever grave, cannot take place of proof, the accused is entitled to the benefit of doubt. Reliance has been placed on Banarsi Dass v. State of Haryana, (2010) 4 Supreme Court Cases 450; M. Narsinga Rao v. State of A.P., (2001) 1 Supreme Court Cases 691; T. Subramanian v.
C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 14 of 35 The State of Tamil Nadu, AIR 2006 Supreme Court 836; Harish Kumar and Ors. v. State, 2016 IV AD (Delhi) 693; Satvir Singh v. State of Delhi, (2014) 13 Supreme Court Cases 143 and Sujit Biswas v. State of Assam, (2013) 12 Supreme Court Cases 406.
Legal provisions involved
8. Section 7 of the PC Act deals with the offence of taking illegal gratification by a public servant. The said section (as it stood at the relevant time) reads thus:
"7. Pubic servant taking gratification other than legal remuneration in respect of an official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine."
Section 13 of the PC Act defines the offence of criminal misconduct. The relevant portion of the said section (as it stood at the relevant time) is reproduced as under:
"13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct, C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 15 of 35
(a) xxx xxx xxx
(b) xxx xxx xxx
(c) xxx xxx xxx
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or
(e) xxx xxx xxx"
Section 13 (2) of the PC Act prescribes punishment for the offence of criminal misconduct.
Section 201 IPC prescribes punishment for causing disappearance of evidence of an offence or giving false information with the intention of screening the offender from legal punishment.
Sanction for prosecution
9. In the case on hand, it is not in dispute that at the relevant time, the accused was posted as Junior Engineer in the Delhi Agricultural Marketing Board. Since the accused was a public servant, sanction from the competent authority for his prosecution was required to be obtained in terms of Section 19 (1) of the PC Act. In this regard, the prosecution has examined Sh. V. P. Rao, the then Director, Agriculture MarketingcumVice Chairman, Marketing Board and Secretary Planning, Govt. of NCT of Delhi, as PW9. In his testimony, PW9 Sh. V. P. Rao has deposed that he C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 16 of 35 was competent to remove the accused from his service and as such was competent to grant sanction for his prosecution. He further deposed that he had perused the relevant material and satisfied himself about the need for grant of sanction for prosecution of the accused. He proved the sanction order dated 04.12.2015 granted by him for prosecution of the accused as Ex. PW9/A. The fact that PW9 was the competent authority to grant sanction for prosecution of the accused has not been questioned by the accused. A perusal of the sanction order shows that the same is quite comprehensive and all the material facts and circumstances of the case have been spelt out. As it is apparent from the recital of the sanction order that the sanctioning authority had granted the sanction after due application of mind, the requirement of Section 19 (1) of the PC Act has been duly complied with.
Appreciation and evaluation of evidence
10. It is the admitted position that the complainant Sh. Naveen Kumar was awarded two works by the Delhi Agricultural Marketing Board, one for installation of RACC sheet at Poultry Market, Gazipur, Delhi and the other for installation of RACC sheet at Slaughter House, Gazipur, Delhi. The accused has also admitted that the work executed by the complainant was being supervised by him and that the bills for execution of work were also to be prepared by him.
10.1. In order to bring home the guilt of the accused for the offences under C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 17 of 35 Sections 7, 13(2) read with 13(1)(d) of the PC Act, the prosecution is required to prove:
(i) that the accused had demanded illegal gratification from the complainant; and
(ii) that the accused had voluntarily accepted money from the complainant knowing it to be illegal gratification.
Demand of illegal gratification 10.2. The case of the prosecution is that the accused had demanded illegal gratification of Rs. 30,000/ from the complainant to finalize the bills in respect of the work executed by him. To prove the same, the prosecution has examined the complainant Sh. Naveen Kumar and his friend Sh. Rajeev Jain as PW1 and PW6 respectively. In his testimony, the complainant (PW1) deposed that he had executed both the work orders in May, 2015 but since the accused demanded illegal gratification of Rs. 30,000/ for the finalization of bills, he lodged a written complaint (Ex. PW1/A) with the CBI on 10.08.2015. He further deposed that the complaint was marked to Inspector Arjun Kumar Maurya for verification and that during the verification proceedings, on the instruction of Inspector Arjun Kumar Maurya, he along with his friend Sh. Rajeev Jain met the accused in his office situated at Gazipur, Delhi on 10.08.2015 at about 2.30 p.m. He further deposed that in the said meeting, when he asked the accused to prepare and finalize his bills, the accused again demanded bribe of Rs. 30,000/ by gesture, whereupon he gave Rs. 5,000/ to him and C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 18 of 35 assured that the balance amount of Rs. 25,000/ would be paid on the following day. He further deposed that though an independent witness Sh. Jitender Kumar Sharma was also joined in the verification proceedings but he was left with Inspector Arjun Kumar Maurya outside the office of the accused as it was apprehended that the accused might not make demand of bribe in the presence of a stranger. He also deposed that the conversations between him and the accused during the verification proceedings were recorded in a memory card with the help of digital voice recorder.
10.3. The complainant's friend Sh. Rajeev Jain (PW6) has deposed on the same lines as that of the complainant (PW1). He deposed that he used to assist the complainant in his business and look after the processing of bills. He further deposed that an amount of Rs. 2 lacs was due to the complainant from the Delhi Agricultural Marketing Board and that since the accused had demanded Rs. 30,000/ for preparing the bills, the complainant had lodged a complaint with the CBI on 10.08.2015. He further deposed that he along with the complainant had met the accused in his office during the verification proceedings on 10.08.2015 and that in the said meeting, the accused again demanded bribe of Rs. 30,000/. He also deposed that since the complainant was having an amount of Rs. 5,000/ with him, he handed over the same to the accused and told him that the balance amount of Rs. 25,000/ would be paid on the next day.
10.4. The factum of verification proceedings has also been affirmed by C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 19 of 35 the independent witness Sh. Jitender Kumar Sharma (PW2) and the verification officer Inspector Arjun Kumar Maurya (PW11). Both of them have deposed that during the verification proceedings on 10.08.2015, they had accompanied the complainant and his friend Sh. Rajeev Jain to Gazipur, Delhi and that when the complainant and his friend went inside the office of the accused to meet him, a digital voice recorder containing memory card (Q1) was handed over to the complainant in switch on mode. They further deposed that when the complainant and his friend returned after meeting the accused, the digital voice recorder was taken back and conservations recorded therein were heard at CBI office.
10.5. The complainant (PW1) and his friend Sh. Rajeev Jain (PW6) were crossexamined on behalf of the accused. In the said crossexamination, the accused nowhere disputed that the complainant and his friend had met him in his office on 10.08.2015. The accused has crossexamined the complainant and his friend essentially on the line that neither any demand of bribe was made by him nor any money was given to him by the complainant. From the suggestions given to them, it can be gathered that the defence raised by the accused was that since the complainant had sought extension of time for the execution of the work, no bill was due and pending and therefore, there was no occasion to demand illegal gratification for preparation of the bills by him and that as he had recorded entries in the Hindrance book relating to unsatisfactory work C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 20 of 35 executed by the complainant, the complainant was pressurizing him to prepare the bills without completion of work. It is pertinent to mention that neither the accused has led any evidence in his defence to prove the adverse entries against the complainant in the Hindrance book nor he confronted the complainant and his friend with the alleged entries. On the other hand, the prosecution has examined the senior officials namely Sh. Prem Singh Meena, Executive Engineer and Sh. Dinesh Kumar Sharma, Assistant Engineer as PW4 and PW5 respectively and both of them have expressed ignorance regarding the alleged adverse entries in the Hindrance book against the complainant. Further, though the complainant has admitted that he had applied for the extension of time for the execution of work, however, PW4 Sh. Prem Singh Meena has stated that as on 10.08.2015, 10% of the payment for the work executed by the complainant was still due and outstanding. Similarly, PW5 Sh. Dinesh Kumar Sharma also stated that the bills for part payment in respect of the work executed and for full payment in respect of the extra item work executed by the complainant were pending with the accused. Considering the above, it is clear that the defence raised by the accused was without any substance.
10.6. Apart from the depositions of the complainant and his friend, the prosecution has also produced on record the memory card Q1 and the transcription of the conversations recorded therein to show as to what had transpired in the meeting between the accused, complainant and his friend C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 21 of 35 during the verification proceedings on 10.08.2015. It is seen from the record that after the verification proceedings, the memory card Q1 was duly sealed and the seal was handed over to the independent witness Sh. Jitender Kumar Sharma (PW2) for safe custody. The said seal remained in his custody and was produced and handed over by him to the MHC(M) in court during the course of recording of his testimony. The sealed parcels of the memory card Q1, digital voice recorder and sample voice of the accused were sent to the CFSL for voice examination. PW12 Sh. Deepak Kumar Tanwar, Principal Scientific Officer (Physics), CFSL, New Delhi, has deposed that the seals on the parcels were found intact and tallied with the specimen seal impression. Thus, the possibility of tampering with the memory card Q1 before the examination thereof by PW12 is completely ruled out. PW12 Sh. Deepak Kumar Tanwar has also deposed that the audio recordings contained in the memory card Q1 are continuous and no form of tampering has been detected and that the questioned voices contained in the said memory card are the probable voice of the accused. He proved his voice examination report dated 29.07.2016 as Ex. PW12/A. 10.7. The audio recordings contained in memory card Q1 were played while recording the testimony of the complainant (PW1). The complainant had not only identified the voice of the accused but also deposed that the transcription Ex. PW1/G was the correct reproduction of the conversations recorded in memory card Q1. The relevant portions of the said C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 22 of 35 transcription, which pertain to the contents of the memory card Q1, are reproduced as under:
"एन: ठठीक हह कल आप हममारमा बबिल बिनमा दद .... एक बबिल बिनमा दद, ददनन मत बिनमाआआ .... हम तद बिबंधआ हह आप सआ .... एक बदयमा और भठी दआ सकतआ हह ए: आप कद जद हह मआरआ पआ बविश्विमास क्यन नहठी हह ....
आर: बविश्विमास नहह हदतमा .... बविश्विमास जरूरठी हह ए: बविश्विमास क्यन नहह हह ? .... समझद .... आपनआ ..ए०ई० कआ दआ बदए , एक्शन कआ धर बदए .... एस०ई० कद दआ बदए .... आपनआ मआरआ कद पतमा चलमा .... ए०ई० कद बदए .... एस०ई० कद बदए .... जआ ० ई० कआ क्यन रदकआ .... आपनआ क्यन रदकआ .... मआ रआ कद सबिनआ बितमायमा हमआ तद पह सआ बमल गए ....
xxxxxx xxxxxx xxxxxx एन: सर एक महठीनमा हद गयमा अबि तद सदच ललयमा हदगमा आपनआ आर: रलजस्टर मम एनटट ठी भठी तद करनठी हह ए: बदममाग नहह चलतमा - जबि तक एन: बदममाग मम जबि तक पआ टट दल नमा डल जमाए ए: हमाबं विद बिमात भठी आर: बबिनमा प्रसमाद कआ कक छ नहह हदतमा हमाबं हमाबं हमाबं ।
ए: एकचचूअ ल मम क्यमा हदतमा हह .... आदमठी उस पआ ध्यमा नहह दआ पमातमा
xxxxxx xxxxxx xxxxxx
ए: बकतनआ
एन: 5 रख लद
आर: मम बिहठमा हह ह
एन: अबि आपकआ 25 रह गए .... ठठीक हह
ए: ठठीक हह .... एमबिठी लआनआ जमा रहमा हह बं , अच्छमा रहआगमा मआरआ समाथ चलद .... मम ककछ सदच कआ
कह रहमा हह बं "
(emphasis supplied)
The abbreviations 'एन', 'ए' and 'आर' in the above transcription stand C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 23 of 35 for the complainant Sh. Naveen Kumar, accused Ashok Kumar and complainant's friend Sh. Rajeev Jain respectively. The above reproduced recorded conversations were also heard by the court at the stage of final arguments to satisfy about the contents thereof. A perusal of the transcription of the recorded conversations shows that after stating that the payments had already been made to the senior officials for preparation of the bills, the accused had questioned the complainant as to why his payment was stopped. This clearly brings to fore that the accused was demanding bribe from the complainant for preparation of his bills. Further, from the affirmative response of the accused to the words '5 रख लद' and 'अबि आपकआ 25 रह गए' spoken by the complainant, the version of the complainant that the accused had demanded bribe of Rs. 30,000/ from him for preparation of his bills and that in pursuance thereto, he had handed over the part bribe amount of Rs. 5,000/ to the accused on 10.08.2015 gets conclusively established.
10.8. The counsel for the accused had contended that since PW12 Sh. Deepak Kumar Tanwar has admitted in his cross examination that he does not have any formal degree or diploma in voice identification, he cannot be said to be an 'expert' within the meaning of Section 45 of the Indian Evidence Act and therefore, no reliance can be placed on the report Ex. PW12/A prepared by him. In support of the above contention, he has placed reliance on Ramesh Chandra Agarwal v. Regency Hospital C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 24 of 35 Limited and Others, (2009) 9 Supreme Court Cases 709.
Section 45 of the Evidence Act reads as under:
"45. Opinions of experts.when the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts.
Such persons are called experts."
In Ramesh Chandra Agarwal case (supra), while dealing with Section 45 of the Evidence Act, the Hon'ble Supreme Court held thus:
"18. The importance of the provision has been explained in State of H.P. v. Jai Lal. It is held that, Section 45 of the Evidence Act which makes opinion of experts admissible lays down, that, when the court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions are relevant facts. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject."
(emphasis supplied) In view of the above judgment, it is clear that if a witness has made a special study of the subject or acquired a special experience therein, he shall be treated as an expert in such subject. In the case on hand, PW12 Sh. Deepak Kumar Tanwar, who is posted as Principal Scientific Officer (Physics), CFSL, New Delhi, has deposed that he has done M.Sc.
C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 25 of 35 (Physics), M. Phil (Physics) and Certificate Course in Forensic Science and has been working in the field of forensic voice examination and physical examination for the last more than forty four years and that during this period, he has examined the voices of more than three thousand persons in about twelve hundred cases of voice examination. He further stated that he has also undergone one month training on the subject 'Speakers Identification and Allied Areas' from University of Trier, Germany. Since PW12 Sh. Deepak Kumar Tanwar has undergone training course in forensic voice examination and has been working in the said field for more than four decades, there can be no doubt that he is skilled and has adequate knowledge of the subject. Considering the same, PW12 is an expert witness and there is no impediment in relying upon the report given by him.
Acceptance of illegal gratification 10.9. It is the case of the prosecution that after the verification proceedings, a trap was laid on 11.08.2015 and the remaining bribe amount of Rs. 25,000/ was accepted by the accused from the complainant. In this regard, the complainant (PW1) deposed that on 11.08.2015, a trap team including him, his friend Sh. Rajeev Jain, two independent witnesses Sh. Jitender Kumar Sharma and Sh. Gopi Raman Kanth and CBI officials was constituted; that the currency notes of Rs. 25,000/ produced by him were treated with phenolphthalein powder; that he made a call to the accused on C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 26 of 35 his mobile phone from the mobile phone of his friend Sh. Rajeev Jain for fixing the place of meeting; that the accused asked him to come to the office of Delhi Agricultural Marketing Board at Janakpuri, New Delhi; that he along with his friend Sh. Rajeev Jain met the accused in the office room of Executive Engineer situated in the basement of the building; that the shadow witness Sh. Jitender Kumar Sharma remained present outside the said room; that during the conversation, when the accused demanded bribe by hand gestures, he indicated the accused to come out of the room; that when the accused came out of the room and saw the independent witness Sh. Jitender Kumar Sharma, he enquired about him; that he told the accused that Sh. Jitender Kumar was his uncle; that thereafter, he handed over the bribe amount of Rs. 25,000/ to the accused near the staircase; that the accused received the money by his right hand and kept the same in his right side front pant pocket; that thereafter, he left Sh. Rajeev Jain with the accused and came out of the office building along with Sh. Jitender Kumar Sharma and informed Inspector H. S. K. Singh that the transaction of bribe had taken place; that the CBI team rushed inside the office and apprehended the accused from the ground floor on the identification of Sh. Rajeev Jain; that when the bribe amount was not recovered from the personal search of the accused, the CBI officials enquired from the accused as to whether he had kept the bribe amount somewhere or had given the same to someone but he did not give any reply; that thereafter, the right hand wash, left hand wash and right side C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 27 of 35 front pant pocket wash of the accused were separately taken by the CBI officials in the solution of sodium carbonate; that while the colour of the solution in which the right hand and pant pocket of the accused were dipped turned pink, the colour of the solution in which the left hand of the accused was dipped did not change and that all the conversations of the trap proceedings were recorded in a memory card with the help of digital voice recorder.
10.10. In his testimony, the complainant's friend Sh. Rajeev Jain (PW6) has corroborated the deposition of the complainant and stated that during the trap proceedings on 11.08.2015, he had accompanied the complainant to the head office of Delhi Agricultural Marketing Board, near Janakpuri and that the accused had accepted the balance bribe amount of Rs. 25,000/ from the complainant outside the office of the Executive Engineer in his presence. He further deposed that after handing over the bribe amount of Rs. 25,000/ to the accused, the complainant had tried to make a phone call to the CBI officials as instructed by them but the call was not connected. He further deposed that in order to inform the CBI team regarding the transaction of bribe, the complainant had departed from the spot leaving him with the accused. He further deposed that after the departure of the complainant, the accused suddenly entered into the lift and disappeared. He further deposed that he went to ground floor of the building in the search of the accused and found that the CBI team had also arrived. He C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 28 of 35 also deposed that after sometime, the accused was seen coming out of the lift on the ground floor and CBI team apprehended him on his identification.
10.11. The version of the complainant qua the trap proceedings has also been corroborated by the independent witness Sh. Jitender Kumar Sharma (PW2). He deposed that he had joined the trap proceedings on 11.08.2015 and had witnessed the complainant handing over the currency notes of Rs. 25,000/ to the accused in the gallery outside the office room of the Executive Engineer.
10.12. In the crossexamination of the complainant (PW1) and his friend Sh. Rajeev Jain (PW6), the accused has neither disputed that the complainant and his friend had met him in the Janakpuri office of Delhi Agricultural Marketing Board on 11.08.2015 nor that he was apprehended from the said office by the CBI officials on the said day. Though both the witnesses were crossexamined on the line that there was no demand or acceptance of bribe, however, the accused failed to dent the testimonies of the complainant and his friend on that score and elicit anything material so as to render their testimonies unreliable. The independent witness Sh. Jitender Kumar Sharma (PW2) has also reiterated in his crossexamination that the bribe amount was handed over by the complainant to the accused in his presence outside the office of the Executive Engineer but stated that the same was given in an envelope. The counsel for the accused has contended C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 29 of 35 that in stark contrast to the testimonies of the complainant and his friend, PW2 Sh. Jitender Kumar Sharma has stated that the bribe money was handed over to the accused in an envelope, which amounts to material contradiction in the version of the prosecution witnesses and therefore, the accused should be given benefit of the same. The court is unable to agree with the above contention. No doubt, a discrepancy has crept in the cross examination of PW2 with regard to the mode of handing over of the bribe money to the accused, however, the same is not fatal to the case of the prosecution as such minor discrepancies are bound to occur due to lapse of time. Further, the above discrepancy does not go to the root of the case especially when the PW2 has categorically stated that the envelope was containing the bribe money.
10.13. In addition to the depositions of the above witnesses, the prosecution has also produced on record the memory card Q2 containing the conversations between the accused, complainant and his friend during the trap proceedings. Qua the said memory card also, PW12 Sh. Deepak Kumar Tanwar, Principal Scientific Officer (Physics), CFSL, New Delhi, has given the report (Ex. PW12/A) that no form of tampering was detected in the memory card Q2 and that the questioned voices contained in the said memory card are the probable voice of the accused.
The relevant portion of the transcriptions Ex. PW1/G (Colly.), which pertains to the contents of the memory card Q2, is reproduced as C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 30 of 35 under:
"N : चमाचमा जठी हम A: चमाचमा जठी हह उनहम बबिठमा दआ तआ हम ।
N: क्यमा करूबं बफिर मम बनकल जमाऊबं ?
R: आप बनकल लद .... मम बिमात करकआ आ जमाऊबंगमा A: आप बनकल जमाओ .... ठठीक हह नमा N: लआ ब कन आप बनबिटमा दआ न मा इस बकस्सआ कद .... ठठीक हह ? .... 25 हजमार रूपए बिह लम स ....
अबि तक कमा बहसमाबि .... आज इसकद करकआ जमानमा ... आज एमबिठी कर दआनमा ... ठठीक हह । A: हह बं "
(emphasis supplied) The above transcription of the recorded conversations lends credence to the version of the complainant (PW1) that on being inquired by the accused, he had told that Sh. Jitender Kumar Sharma (i.e. the independent witness) was his uncle and that after handing over the bribe amount of Rs. 25,000/ to the accused in the presence of his friend Sh. Rajeev Jain and independent witness Sh. Jitender Kumar Sharma, the complainant had departed from the spot leaving Sh. Rajeev Jain with the accused.
10.14. Another material piece of evidence which clinches the issue against the accused is the presence of phenolphthalein in the sodium carbonate solution in which the wash of right hand, left hand and right side front pant pocket of the accused were taken. It is not in dispute that after the apprehension of the accused on 11.08.2015, the right hand wash, left hand C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 31 of 35 wash and right side front pant pocket wash of the accused were separately taken in the solution of sodium carbonate. The said exhibits were examined by Ms. Deepti Bhargava, Senior Scientific Officer, GradeII (Chemistry), CFSL, New Delhi. In her report (Ex. PW10/A), PW10 Ms. Deepti Bhargava has observed that the seals of all three bottles received for chemical examination were intact and tallied with the specimen seal impression and that upon examination, the contents of all the bottles gave positive tests for the presence of phenolphthalein and sodium carbonate.
10.15. The counsel for the accused has argued that no reliance can be placed on the report Ex. PW10/A as the same appears to have been manipulated by the investigating agency to strengthen its case. He has submitted that though the prosecution has set up the case that the colour of the solutions in which the wash of the right hand and pant pocket of the accused were taken had turned pink and the colour of the solution in which the left hand of the accused was dipped did not change colour, however, when the said three bottles were produced in court during the course of trial, it was observed that the colour of the solutions of all the bottles was whitish. He has argued that from the same, it is clear that the solution of none of the bottles had turned pink and that the report Ex. PW10/A showing the presence of phenolphthalein in all the bottles is completely incorrect.
In her report (Ex. PW10/A), PW10 Ms. Deepti Bhargava has C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 32 of 35 specifically observed that out of the three bottles received in the CFSL, the colour of solution in two bottles containing the right hand wash and right side front pant pocket wash was 'very light pink' and that the solution in the third bottle containing the left hand wash was colourless. In her cross examination, she has clarified that if 5 microgram of phenolphthalein is added to 100 ml of water and 2 gram of sodium carbonate, the solution turns pink in colour, which can be seen with naked eyes. It follows therefrom that merely because the change in colour of a solution is not visible with the naked eye, it cannot be said that the same does not contain phenolphthalein as the quantity of phenolphthalein therein may be less than 5 microgram. PW10 has further deposed that even if a solution containing phenolphthalein is kept in a bottle with its seal intact for a long period such as two years, its colour would change due to natural causes. In the case on hand, the bottles containing wash were produced in court after the lapse of more than two years. Considering the same, it is quite possible that the light pink colour of the right hand wash and the right side front pant pocket wash of the accused might have faded away with the passage of time especially when the said bottles were opened in the CFSL for the purpose of chemical examination. Hence, the contention of the counsel for the accused that the report Ex. PW10/A is incorrect and unreliable is rejected. Here it is noteworthy that contrary to the above contention, it was suggested on behalf of the accused to PW11 Inspector Arjun Kumar Maurya as well as PW14 Inspector H. S. K. Singh that phenolphthalein C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 33 of 35 powder had been forcibly applied by the trap team on the hands and the pant pocket of the accused before obtaining the wash so as to falsely implicate him in the case. The contrary stands of the accused bring out the shallowness of his defence especially when the CBI officials had no motive to falsely implicate the accused.
10.16. In view of the testimonies of the witnesses coupled with the recorded conversations and the phenolphthalein test report, it is evident that the prosecution has succeeded in proving that the accused had voluntarily accepted the remaining bribe amount of Rs. 25,000/ from the complainant on 11.08.2015.
Nonrecovery of bribe money 10.17. The counsel for the accused has also contended that the non recovery of the bribe money from the possession of the accused goes to show that the said money was not received by him. He has submitted that it has come on record in the testimony of PW6 Sh. Rajeev Jain that after receiving the bribe money in the basement, the accused had boarded the lift and that when he came out of the lift on the ground floor, he was apprehended by the CBI officials. He has argued that since the accused had remained in the lift, there was no opportunity for him to conceal or cause disappearance of the bribe money and therefore, the nonrecovery of the alleged bribe money either from the person of the accused or from the lift is fatal to the case of the prosecution.
C.C. No. 232/2019 CBI v. Ashok Kumar Page No. 34 of 35 It can be culled out from the testimony of PW6 Sh. Rajeev Jain that after the accused had boarded the lift at the basement and the doors of the lift had closed, PW6 took the stairs to reach the ground floor and that after some time of his reaching the ground floor, the doors of the lift opened and the accused came out. It is a matter of common knowledge that the time taken by the lift to reach the ground floor from basement would be less than the time taken in climbing the stairs from the basement to the ground floor. The very fact that the lift opened at the ground floor after the PW6 had already reached there through stairs clearly shows that before opening on the ground floor, the lift must have travelled to the other floors of the building and thereby, the accused had the opportunity to get rid of the money. Since the accused was carrying the bribe money while boarding the lift and the said money could not be recovered from him on his apprehension from the ground floor, it is evident that the accused had caused the disappearance of the bribe money.
Conclusion
11. Resultantly, the accused is convicted for the commission of offences punishable under Sections 7 and 13 (1) (d) read with Section 13(2) of the PC Act and Section 201 IPC.
Announced in the open court (Sanjay Garg) Dated : 06.03.2020. Special Judge (PC Act) (CBI)18, Rouse Avenue District Courts, New Delhi.
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