Delhi District Court
(C.B.I. vs . Man Mohan Dubey & Ors.) on 22 December, 2012
In the matter of:
(C.B.I. Vs. Man Mohan Dubey & Ors.)
Dated : 22.12.2012.
: IN THE COURT OF SH. KANWAL JEET ARORA :
SPECIAL JUDGE : C.B.I. (P.C.ACT)
DWARKA COURT COMPLEX, NEW DELHI.
Case No.: RCAC2/2004/A/0001
ACUII/CBI/N.Delhi.
Under sec: 120B /420 /467 /468 /471
I.P.C. r/w sec.13(2) & 13(1) of P.C.Act.
In the matter of:
CENTRAL BUREAU OF
INVESTIGATIONS (C.B.I)
v e r s u s
(i) MAN MOHAN DUBEY,
S/o.: Sh.Late Sh.Kalka Prasad Dubey,
R/o.:J10, Andrews Ganj Extension,
New Delhi.
(ii) ROSHAN LAL,
S/o.: Sh.Charan Dass Dhingra,
R/o.: C149, Sarojini Nagar,
New Delhi.
(iii) JITENDER MOHAN NAYYAR,
S/o.: Late Sh.T.R.Nayyar,
R/o.:D629, Sarojini Nagar,
New Delhi.
... Accused Persons.
C.C.No: 16 / 2011 Page No.1 of 148
In the matter of:
(C.B.I. Vs. Man Mohan Dubey & Ors.)
Dated : 22.12.2012.
Date of Institution : 30.06.2004.
Date on which the case was : 30.09.2011.
received on transfer in this court
Date of reserving judgement : 16.11.2012.
Date of pronouncement : 22.12.2012.
: J U D G E M E N T :
1.Directorate General of Supplies and Disposal (hereinafter referred to as DGS&D), is a centralized "Purchase and Quality Assurance Department of Supplies" functioning under Ministry of Commerce, Government of India. DGS&D is considered as Nodal Agency of Government of India for purchase policy and procedure.
2. DGS&D besides being a Centralized department for purchase and disposals, also deals with the process of "registration". Registration with DGS&D is a process by which various firms can get enlisted as an "approved supplier" to qualify for participation in DGS&D Procurement Programme. C.C.No: 16 / 2011 Page No.2 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
3. Various firms / companies desirous of getting themselves registered with DGS&D submit their applications, for getting themselves registered. The applications so received for registration / grant of enlistment certificate are then processed by the Registration Section of DGS&D manned by the Assistants, Section Officers and Deputy Director.
4. Accused Man Mohan Dubey, the Deputy Director, Roshan Lal, the Section Officer and J.M.Nayyar,the Assistant posted with Registration Section of DGS&D, were charge sheeted by Central Bureau of Investigations (CBI) for offences under section 120 B IPC read with section 7 and section 13(1) (d) / 13(2) of Prevention of Corruption Act, 1988 and for substantive offences under section 7 and section13(1) (d) read with section 13(2) of Prevention of Corruption Act, 1988.
5. Before proceeding further, it is pertinent to advert to the facts in brief which led to registration of FIR and filing of charge sheet against the accused persons. The same are as under: C.C.No: 16 / 2011 Page No.3 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
FACTUAL MATRIX:
6. One Sh.Arun Kumar Sharma, Proprietor of M/s Infotech Consultants New Delhi was working as Consultant for various private companies and firms to render assistance to them for their enlistment and registration with DGS&D. Sh.Arun Kumar Sharma as such used to submit applications for and on behalf of various companies by whom he is engaged, and follows up the process of registration, after submission of the application on behalf of these companies.
7. Sh.Arun Kumar Sharma during the course of process of the application for registration of these firms, used to look after the deficiencies if any, pointed out by the officials of DGS&D and used to get the same removed under signatures of the companies on whose behalf he undertakes the work of registration. Arun Kumar Sharma had lodged a complaint dated 21.01.2004 with Central Bureau of Investigations (CBI), alleging therein that certain officers of DGS&D had started harassing him in the process of registration of firms, by raising frivolous deficiencies, just to extract illegal gratification.
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8. It is alleged that complainant had submitted papers for enlistment / registration of two firms namely M/s Star Micronics and M/s S.V.Instruments Analytica at the Dak Counter of DGS&D.
9. It is alleged by the complainant that for getting the letters of registration, he had visited the office of DGS&D a number of times, but the letter of registration has not been issued, as he had not fulfilled the demands of the accused persons.
10. It is alleged by the complainant that so far as the case of M/s Star Micronics is concerned, he visited the office of DGS&D on 20.01.2004 and met J.M.Nayyar, who was working there as Assistant, Roshan Lal, the Section Officer and Man Mohan Dubey, the Deputy Director. It is alleged that all three of them told that the file is ready but the letter of registration will not be issued till he pays them the illegal gratification.
11. It is alleged by the complainant that J.M.Nayyar (the Assistant) had demanded Rs.5,000/ whereas Roshan Lal (the C.C.No: 16 / 2011 Page No.5 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
Section Officer) had raised a demand of Rs.2,000/ and Man Mohan Dubey (the Deputy Director) demanded a sum of Rs.5,000/ from him.
12. It is alleged by the complainant that all the three accused persons told him to manage the demanded amount and come with the same to them on 22.01.2004 and only thereafter they will hand over the copy of the registration certificate to him, as the original is always sent to the concerned party by post.
13. It is alleged by the complainant that for the other firm for which he had submitted the papers for registration ie. M/s S.V.Instruments Analytica, the file was still at the processing stage. It is contended that for the said file, Anil Bindal was the Assistant, who had demanded Rs.3,000/ as "illegal gratification", whereas Roshan Lal, the Section Officer and Man Mohan Dubey, the Deputy Director had demanded a sum of Rs.2,000/ and Rs.5,000/ respectively for the same.
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14. It is further alleged by the complainant that as this file was still at the processing stage, therefore date of payment of the bribe amount was not fixed by the accused persons and they had also told him that they will finalize the present case only after the payment of bribe is made in the case pertaining to M/s Star Micronics.
15. It is alleged by the complainant that as he did not wish to pay the bribe amount, therefore he had filed the present complaint with CBI.
16. Pursuant to receipt of complaint dated 21.01.2004 with CBI, the same was entrusted for preliminary inquiry / verification to SI Arun Rawat, who was deputed to visit the office of DGS&D with the complainant.
17. SI Arun Rawat for the purposes of verification visited the office of DGS&D and submitted his verification report dated 22.01.2004 stating therein that Roshan Lal and J.M.Nayyar had demanded bribe from the complainant.
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18. On the basis of the complaint dated 21.01.2004 of the complainant and also the verification report, the present FIR bearing number RCACII2004 A0001 dated 22.01.2004 was registered. After registration of the same, it was entrusted to Inspector D.S.Dagar who was made the "Trap Laying Officer (TLO)".
19. The trap team was constituted consisting of Inspector D.S.Dagar, the Trap Laying Officer, Inspector A.B.Chaudhary, Inspector K.Babu, SI Arun Rawat, ASI Raj Rattan, ASI Sant Lal and other constables. Besides them, the trap team included the complainant and two independent witnesses namely Yogender Singh, Dy.Manager (Vigilance) Air India and one Kulbhushan Chopra, Stenographer from Enforcement Department.
20. Before laying the actual trap, all the members of the trap team were informed about the complaint and were asked to get clarification if any, required from the complainant. Complainant was asked to produce Rs.12,000/ which were to be used as the Tainted Money for payment of bribe on demand if any, by the C.C.No: 16 / 2011 Page No.8 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
accused persons. The serial numbers of said currency notes which were 3 notes of the denomination of Rs.1,000/ and 18 notes of Rs. 500, were noted down in a pretrap memo, which was prepared.
21. In the charge sheet so submitted, after conclusion of the investigations, it is stated that the members of the trap team were told that the trap which is going to be held is a scientific trap. Inspector K.Babu gave practical demonstration to the members of the trap team by treating a piece of paper with phenolphthalein powder. Thereafter he dipped his fingers in clear solution of sodium carbonate which turned pink. The member of the trap team were told that the tainted currency notes, so produced by the complainant, will be treated with phenolphthalein powder and after they were so treated, the same were handed over to the complainant with directions not to touch them again and again and to hand over the same to the accused only on their specific demand. The piece of paper and the pink solution which was there to give practical demonstration to the members of the team were thereafter destroyed.
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22. It has been stated in the chargesheet that Yogender Singh, the independent witness was deputed as a 'shadow witness' and was directed to remain with the complainant to over hear the conversation between the complainant and the accused persons. He was also directed by the Trap Laying Officer (TLO) to give signal to the trap team, once the complete transaction between the complainant and all the three accused persons takes place.
23. It is stated in the charge sheet that thereafter the trap team proceeded towards the office of DGS&D and at about 1:45 pm on 22.01.2004, they reached there.
24. It is alleged that the complainant as well as the shadow witness went inside the DGS&D's Office whereas the other members of the team positioned themselves in the nearby vicinity so as to be in the visibility of the complainant and the shadow witness.
25. It has been stated in the charge sheet that initially the complainant and the shadow witness went to the room of Roshan Lal, where complainant inquired about his work, to which C.C.No: 16 / 2011 Page No.10 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
Roshan Lal asked Paise laaye ho...?" It is stated that by that time J.M.Nayyar, the Assistant also came there and asked the complainant "Kya paise laaye hai ?".. It is alleged in the charge sheet that complainant requested J.M.Nayyar to accept Rs.3,000/ but he insisted "Paanch hi loonga...". Complainant thereafter handed over Rs.5,000/ to J.M.Nayyar, which he kept in the right pocket of this pant. It is alleged that Roshan Lal then got up with a file and asked the complainant to accompany him to the room of Man Mohan Dubey, the Deputy Director. The shadow witness also accompanied them. It is alleged that after reaching there, Roshan Lal said "Paise de do...", to which complainant requested Man Mohan Dubey for reducing the amount saying "Main itne case lekar aata hoon, kuch discount kar deejiye..". Man Mohan Dubey replied "tum aaya hi mat karo, hum apne aap kar lenge...". Complainant then gave Rs.5,000/ to Roshan Lal who inturn handed over the same to Man Mohan Dubey, who kept the same in his upper chest shirt pocket. It is alleged that Roshan Lal then demanded his share, on which complainant gave him Rs. 2,000/, which he kept in his shirt pocket and thereafter came out C.C.No: 16 / 2011 Page No.11 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
from the room of Man Mohan Dubey.
26. It is alleged that when Roshan Lal and complainant were proceeding towards Roshan Lal's Room, shadow witness gave signal to Inspector D.S.Dagar about completion of the transaction on which Inspector D.S.Dagar rushed to Man Mohan Dubey's room and challenged him of having demanded and accepted bribe of Rs.5,000/.
27. In the meantime, other members of the team who were keeping watch on J.M.Nayyar, after return of accused Roshan Lal in the room, disclosed their identities to Roshan Lal and J.M.Nayyar and challenged them of having demanded and accepted bribe. Roshan Lal and J.M.Nayyar were thereafter taken to the room of Man Mohan Dubey.
28. On search of Man Mohan Dubey, Rs.5,000/ were recovered from his shirt pocket whereas Rs.2,000/ were recovered from the shirt pocket of Roshan Lal and Rs.5,000/ from the right hand side pant pocket of J.M.Nayyar. The currency notes so C.C.No: 16 / 2011 Page No.12 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
recovered were tallied with the pretrap memo. It is alleged that hands of all the three accused persons were washed with the clear solution of sodiumcarbonate, which turned pink and this pink solution was kept separately in the bottles. It is alleged that shirts of Man Mohan Dubey and Roshan Lal and pant of J.M.Nayyar were also taken into possession and when pockets of shirts and pant dipped in the clear solution of sodium carbonate, the same turned pink which were also kept separately in the bottles, which were thereafter sealed.
29. It is alleged that post trap proceedings were thereafter prepared in the form of Recovery Memo. During the course of investigations, undispatched original certificate dated 20.01.2004 duly signed by Man Mohan Dubey with respect to M/s Star Micronics found in the relevant file, was seized from the room of Man Mohan Dubey.
30. Site Plan was prepared at the spot. Thereafter the matter was investigated. During the course of investigations, the investigating officer had sent the hand and pocket wash solutions to C.C.No: 16 / 2011 Page No.13 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
CFSL and obtained the report confirming presence of phenolphthalein powder in the solution. Investigating Officer thereafter applied with the competent authority for grant of sanction under section 19 of Prevention of Corruption Act. After getting the necessary sanction orders against all the three accused persons, the present charge sheet was filed for trial of the accused persons.
31. Accused persons were thereafter summoned and in compliance with the provisions of section 207 Cr.P.C, copies of charge sheet were supplied to them.
CHARGE:
32. Ld.Predecessor of this Court after hearing Ld.Defence Counsels for all the three accused persons passed orders on the point of charge on 07.12.2005 forming an opinion that prima facie case for offences punishable under section 120 B IPC r/w section 7 and section 13(1) (d) / 13 (2) of Prevention of Corruption Act is made out, besides substantive offences under section 7 and 13 (1) (d) r/w section 13 (1) (2) of Prevention of Corruption Act against C.C.No: 16 / 2011 Page No.14 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
all the three accused persons.
33. On the basis of the same, a collective charge for offences punishable under section 120 B IPC r/w section 7 and Section 13(1) (d) / 13(2) of P.C.Act was framed against all the three accused persons. Separate charges for substantive offence under section 7 of P.C.Act and Section 13 (1) (d) r/w section 13 (2) of Prevention of Corruption Act were also framed, to which all the three accused persons pleaded not guilty. PROSECUTION EVIDENCE:
34. Prosecution was thereafter called upon to substantiate their case by examining their witnesses, listed in the list of witnesses, filed along with the charge sheet. Availing the given opportunities, CBI had examined 17 witnesses.
35. The witnessed so examined by the prosecution can be broadly categorized in 5 categories ; C.C.No: 16 / 2011 Page No.15 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
36. First Category is of material witnesses which consists of complainant Arun Kumar Sharma, who appeared in the witness box as PW1 and two independent witnesses who were joined during trap proceedings namely Sh.Yogender Singh, the Shadow Witness, who appeared in the witness box as PW3 and Sh.K.B.Chopra, the other independent witness, who appeared in the witness box as PW5.
37. Second Category consists of witnesses who deposed about process of registration of the application for enlistment, filed with DGS&D. Under this category, one Sohan Lal Peepal, Assistant, working with DGS&D was examined as PW2 and Rajeev Mahendroo, the Section Officer appeared in the witness box as PW4.
38. Third Category is that of Formal Witnesses. Under this category, Jitendra Mehandiratta PW9 and Amarjeet Bhalla PW11, representatives of M/s Star Micronics were examined by the prosecution. Representatives of M/s S.V.Analytica Instruments namely Sh.Ashok Kumar and Sh.S.K.Kaushik C.C.No: 16 / 2011 Page No.16 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
appeared in the witness box as PW14 and PW15. Representative from M/s Frost International namely Sh.A.K.Wadhera, appeared in the witness box as PW10. Sh.S.K.Pandey PW12 and Sh.N.Shivaramakrishnan PW13, were the witnesses from the Vigilance Department from DGS&D who had handed over the requisite files to CBI. Sh.P.Nath, the Scientific Officer appeared in the witness box as PW7, who proved the CFSL Report.
39. Fourth Category of the witnesses are the witnesses to the grant of sanction to prosecute the accused persons. Under this category prosecution had examined Sh.M.K.Anand, who appeared in the witness box as PW6.
40. Fifth Category of the witnesses examined by the prosecution were those who were part of the investigating team, including the investigating officer. Under this category Inspector D.S.Dagar, the Trap Laying Officer appeared in the witness box as PW8. SI Arun Rawat who was part of the team and had also submitted the verification report appeared in the witness box as PW17, IO Inspector A.B.Chaudhary himself appeared in the C.C.No: 16 / 2011 Page No.17 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
witness box as PW16.
41. Before proceeding further, it is pertinent to make a brief mention of the role and deposition of the prosecution witnesses category wise, as referred hereinabove. The detail deposition of the witnesses is not being adverted to, as the same shall be referred hereinafter while dealing with the necessary ingredients of the offence, with which accused have been charged, visavis the rival contentions advanced by Ld.Special PP for CBI, as well as by Ld.Defence Counsels for the accused persons.
42. All the prosecution witnesses were cross examined in detail by Sh.R.K.Handoo, Advocate, Ld.Counsel for accused M.M.Dubey, Sh.M.P.Singh, Advocate, Ld.Counsel on behalf of accused Roshan Lal and Sh.Ramesh Gupta, Ld.Senior Advocate, along with Sh.P.S.Singhal, Advocate, Ld.Counsels for accused J.M.Nayyar, who were ably assisted by battery of their respective associates. The cross examination of these witnesses is not being mentioned for the sake of brevity, but the same and material portion C.C.No: 16 / 2011 Page No.18 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
thereof, more particularly, the one referred to during the course of arguments, shall be adverted to hereinafter, while appreciating the legal and factual issues raised on behalf of the accused, alongside appreciation of evidence in entirety.
FIRST SET OF WITNESSES:
43. PW1 Arun Kumar Sharma, the complainant deposed that he is working as Proprietor of M/s Infotech Consultant and is operating from Gole Market New Delhi. He deposed that he undertakes the work of registration on behalf of various firms and companies with Government including DGS&D. He deposed that in DGS&D, there is a separate Registration Section, which is dealt with by Deputy Director, Section Officer and other staff. He deposed that for undertaking the work of registration on behalf of various firms, he takes his professional charges for getting the work done. He deposed that in the end of the year 2003, he had submitted the registration papers with respect to three firms namely M/s Star Micronics Devices, M/s S.V.Instruments Analytica Private Limited and M/s Frost International. C.C.No: 16 / 2011 Page No.19 of 148
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44. He further deposed that at that time, Man Mohan Dubey was posted as Deputy Director, Roshan Lal was posted as Section Officer and J.M.Nayyar was posted as Assistant and were dealing with processing of the applications with respect to registration of firms. He deposed that whenever any objection used to be raised by the department on the application of the firms, he used to meet those objections on behalf of the firms. He deposed that after registration of the firm, representative of the firm used to get the registration letter and in the present case, he was entitled to get the registration letter from the department. He deposed that as the registration with respect to M/s Star Micronics was pending for a long time, he visited the registration section 20 to 30 times. He deposed that for delivering the letter of registration in favor of the firm, Sh.J.M.Nayyar, the Assistant, demanded Rs.5,000/, Man Mohan Dubey, the Deputy Director, demanded Rs.5,000/ for him and Roshan Lal, Section Officer had demanded bribe of Rs.2,000/.
45. PW1 further deposed that as it was not feasible for him to pay the bribe, he had filed his complaint dated 21.01.2004 Ex.PW.1/1 with CBI.
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46. PW1 deposed that he visited DGS&D Office with SI Arun Rawat on 21.01.2004 for verification. He deposed that SI Arun Rawat, then submitted the verification report Ex.PW.1/2. He went on to depose that on 22.01.2004, a trap team was constituted which included two independent witnesses as well. He deposed that a practical demonstration of reaction of phenolphthalein powder with sodiumcarbonate solution was shown to the trap team and then the currency notes to be used for the trap were treated with phenolphthalein powder and pre trap memo Ex.PW.1/3 was prepared.
47. PW1 deposed that they left for DGS&D's Office where on demand of accused persons, he had handed over the currency notes to the accused persons in presence of shadow witness. He deposed that all the three accused were then over powered by the trap team. Bribe amount was recovered from their possession.
48. PW1 further deposed that the hand wash and pocket wash of shirts of accused Man Mohan Dubey and Roshan Lal C.C.No: 16 / 2011 Page No.21 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
and pant pocket wash of accused J.M.Nayyar were taken separately.
49. On being cross examined by Ld.PP for CBI, PW1 deposed that three currency notes of Rs.1,000/ and 4 notes of Rs. 500/ were recovered from accused Man Mohan Dubey, which were exhibited as ex.P1 to Ex.P.7. He deposed that ten currency notes of Rs.500/ were recovered from right pant pocket of accused J.M.Nayyar, which were exhibited as Ex.P8 to Ex.P17. He deposed that 4 currency notes of Rs.500/ were recovered from shirt pocket of accused Roshan Lal, which were exhibited as Ex.P18 to Ex.P21. He deposed that pant of J.M.Nayyar and shirts of Roshan Lal and M.M.Dubey were taken into possession in separate sealed parcels. Pant of J.M.Nayyar was identified and exhibited as Ex.P22, Shirt of Roshan Lal as Ex.P23 and shirt of Man Mohan Dubey as Ex.P24. He deposed that shirts, pant, hand wash of the accused persons, recovered currency notes, after the same were tallied with the pre trap memo Ex.PW.1/3, were taken into possession and a post trap memo Ex.PW.1/4 was prepared at the spot.
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50. PW3 Yogender Singh, Deputy Manager (Vigilance) Air India deposed that on 22.01.2004, he pursuant to instructions from his Manager, had reached the office of CBI, to join investigations, where on directions of SP Arun Sharma, he met Inspector D.S.Dagar. He deposed that another witness namely Kulbhushan Chopra, also came there where other CBI officers were also present.
51. PW3 deposed that he was appointed as shadow witness and accompanied the complainant as per instructions of trap laying officer. He corroborated the facts deposed by the complainant regarding demand and acceptance of bribe by all the three accused persons. He deposed that on conclusion of transaction, he gave the signal on which accused persons were apprehended and the bribe amount was recovered from them.
52. He deposed that thereafter a post trap memo was prepared on which seal of CBI impression was put and seal after use was handed over to him. He deposed that a site plan Ex.PW.3/8 was also prepared at the spot. He deposed that all the accused persons C.C.No: 16 / 2011 Page No.23 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
were arrested and a search cum seizure memo Ex.PW.3/9 was prepared by Inspector D.S.Dagar, which was signed by him, as a witness.
53. PW5 Kulbhushan Chopra, Stenographer working with Directorate of Enforcement, appeared in the witness box and deposed that on the date of incident, he was asked by his senior officers to visit CBI office and join investigations.
54. PW5 deposed that he remained with the trap team and after apprehension of the accused persons, bribe amount was recovered from them. He, on being cross examined by Ld.PP for CBI corroborated the version of PW1 and PW3 with respect to the proceedings recorded after apprehension of the accused persons by officers of CBI.
SECOND SET OF WITNESSES:
55. Sohan Lal Peepal working as Assistant in the Registration Section of DGS&D was examined by the CBI as PW2. C.C.No: 16 / 2011 Page No.24 of 148
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He deposed that during his tenure with Registration Section, accused Man Mohan Dubey was posted as Deputy Director, Roshan Lal as Section Officer and J.M.Nayyar as Assistant. He identified the file relating to M/s Star Micronics Devices as Ex.PW.2/1. He identified the registration certificate dated 20.01.2004 with respect to this firm as Ex.PW.2/2 and identified signatures of accused M.M.Dubey on the same.
56. PW2 identified the file of M/s S.V.Instruments Analytica, as Ex.PW.2/3 and deposed that this file was dealt with by Sh.Anil Bindal, being dealing hand, Roshan Lal being Section Officer and Man Mohan Dubey, being Deputy Director. This witness further identified the file pertaining to M/s Frost International as Ex.PW.2/4 and stated that the same was dealt with, by him being dealing hand, Roshan Lal, being section officer and Man Mohan Dubey, being Dy.Director. He identified registration certificate in favor of M/s Frost International, as Ex.PW.2/5, bearing signatures of M.M.Dubey. C.C.No: 16 / 2011 Page No.25 of 148
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57. Rajeev Mahendroo who was earlier posted as Section Officer with DGS&D was examined as PW4. He during the course of his deposition narrated the procedure adopted by the Registration Section for processing any application submitted by any firm, with the section for the purposes of enlistment. He during the course of his testimony deposed that the enlistment certificate Ex.PW.2/2 pertaining to M/s Star Micronics bearing date 20.01.2004, should have been sent to the Section Officer immediately. He had identified signatures of accused Man Mohan Dubey on this certificate bearing the date of 20.01.2004.
THIRD SET OF WITNESSES:
58. PW9 Jitender Kumar Mehandiratta, partner of M/s Star Micronics Devices deposed that as to supply medical equipments to government department, an enlistment certificate is required from DGS&D, therefore they had engaged Arun Kr.Sharma for this job. He deposed that Arun Kumar Sharma applied on behalf of their firm for enlistment certificate. He proved the file pertaining to his firm as Ex.PW. 2/1. He deposed that a letter of deficiency in documents was received by them, which was replied by them vide their letter Ex.PW.4/D6. C.C.No: 16 / 2011 Page No.26 of 148
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59. PW11 Amarjeet Bhalla, the other partner of M/s Star Micronics Devices during the course of his deposition, corroborated the version given on record by PW9. He deposed that they did not had any written agreement with complainant Arun Kumar Sharma. He deposed that pursuant to receipt of letter from DGS&D regarding deficiency in documents, they submitted their reply Ex.PW.4/D6. He deposed that the supporting documents filed along with this reply Ex.PW.11/A bears his signatures.
60. PW10 A.K.Wadhera, Director of M/s Frost International, appeared in the witness box and deposed that one Sh.B.M.Ganjoo was working with their company as Senior Executive. He deposed that he himself does not know as to whether Arun Kumar Sharma was appointed on behalf of their firm to obtain the registration certificate. He deposed that a letter dated 23.03.2004 was written by their Sr.Executive which is Ex.PW.10/A. He identified the file pertaining to his company as Ex.PW.2/4 and identified the supporting documents in the said file of his company, bearing his signatures as Ex.PW.10/1 to Ex.PW.10/19. C.C.No: 16 / 2011 Page No.27 of 148
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61. PW14 Ashok Kumar, Director of M/s S.V.Instruments Analytica Private Limited, appeared and deposed that they had applied for registration with DGS&D through complainant Arun Kumar Sharma, but had not executed any written agreement with him. He deposed that he himself had never dealt with Arun Kumar Sharma, as their Managing Director Sh.S.K.Kaushik, used to deal with him. He proved their file for registration with DGS&D as Ex.PW.2/3.
62. PW15 Sh.S.K.Kaushik, Managing Director of M/s S.V.Instruments Analytica Private Limited, deposing on the lines of PW14 stated that their application for registration signed by him is Ex.PW.15/A. He deposed that letter dated 23.03.2004 to DGS&D was signed by Sh.A.K.Kharbanda, Director of their Company, which is Ex.PW.15/B.
63. PW12 S.K.Pandey, deposed that he was posted with registration section of DGS&D. He deposed that on 26.03.2004, he had handed over two files, both pertaining to M/s C.C.No: 16 / 2011 Page No.28 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
Frost International to Director Vigilance vide forwarding letter Ex.PW.12/1.
64. PW13 Sh.N.Shivarama Krishnan, posted as Deputy Director (Vigilance) with DGS&D, deposed that on 26.03.2004, he had sent the intimation and files to CBI vide his forwarding letter Ex.PW.13/A along with letter Ex.PW.12/1 received by him from registration section.
65. PW7 P.Nath, Senior Scientific Officer, working with CFSL deposed that they had received 7 sealed bottles from CBI which are Ex.PW.3/1 to Ex.PW.3/7. He deposed that contents of those bottles were examined, which gave positive result of presence of phenolphthalein powder. He proved his report dated 10.02.2004 to that effect as Ex.PW.7/A. He deposed that seal impressions removed from the bottles were kept separately and were also sent back in envelope Ex.PW.7/B. C.C.No: 16 / 2011 Page No.29 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
FOURTH SET OF WITNESSES:
66. PW6 Sh.M.K.Anand, posted as Director with Ministry of Commerce and Industries, deposed that CBI had submitted a request for grant of sanction under section 19 of P.C.Act, for prosecution of the accused persons. He deposed that the competent authority had applied its mind and the sanction was accorded in the name of President. He deposed that he conveyed the sanction. As per the Allocation of Business Rules, Director was empowered to sign on behalf of President of India. He proved the sanction with respect to accused M.M.Dubey as Ex.PW.6/A, J.M.Nayyar as Ex.PW.6/B and with respect to accused Roshan Lal as Ex.PW.6/C. FIFTH SET OF WITNESSES:
67. Inspector D.S.Dagar, The trap laying officer, appeared in the witness box as PW8. He deposed that on 21.01.2004, he was called by Sh.Arun Sharma, SP CBI who introduced him with the complainant stating that a complaint has been filed by him against some officers, who are demanding bribe from him. PW8 deposed that SI Arun Rawat was deputed for C.C.No: 16 / 2011 Page No.30 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
verification of the complaint. PW8 deposed that on 22.01.2004, SP CBI had informed him that SI Arun Rawat had submitted his verification report. He deposed that thereafter FIR Ex.PW.8/A was registered. He deposed that after registration of FIR, matter was entrusted to him for laying the trap.
68. PW8 deposed that trap team was constituted which included two independent witnesses namely Yogender Singh and Kulbhushan Chopra and they were apprised of the complaint Ex.PW.1/1. PW8 deposed that to acquaint the witnesses with scientific method, Inspector K.Babu gave practical demonstration of reaction of phenolphthalein powder with solution of sodium carbonate. PW8 deposed that complainant produced currency notes amounting to Rs.12,000/, numbers of which were noted down and a pre trap memo was prepared.
69. PW8 deposed that currency notes were then treated with phenolphthalein powder and were given to the complainant, with directions to give the same to the accused on demand. Yogender Singh was deputed as Shadow Witness to over C.C.No: 16 / 2011 Page No.31 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
hear the conversation between the complainant and accused. PW8 further deposed that shadow witness was directed to give signal, after acceptance of bribe by M.M.Dubey and were directed to go first to Roshan Lal, then J.M.Nayyar and then M.M.Dubey.
70. PW8 deposed that they reached the office of DGS&D at about 1:45 pm, whereafter complainant along with shadow witness, went inside the room of section officer and other members of the team took their positions. He deposed that at about 2:15 pm, he received the signal from shadow witness, about completion of the transaction.
71. PW8 deposed that he then directed Inspector S.C.Daundriyal to go to the room of Roshan Lal and J.M.Nayyar and he himself rushed to the room of M.M.Dubey. PW8 deposed that he then disclosed his identity to M.M.Dubey and ask Yogender Singh to take personal search of M.M.Dubey, who then recovered Rs.5,000/ from the shirt pocket of M.M.Dubey, number of which were tallied from the pretrap memo. The notes were identified as Ex.P.1 to Ex.P.7.
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72. PW8 further deposed that by that time accused Roshan Lal, the section officer and J.M.Nayyar were brought in the room of accused M.M.Dubey, by Inspector S.C.Daundriyal. PW8 deposed that Kulbhushan Chopra took personal search of accused J.M.Nayyar and recovered Rs.5,000/ from the pocket of his pant and Rs.2,000/ from the shirt pocket of Roshan Lal which were proved as Ex.PW.8 to Ex.PW.17 and Ex.P.18 to Ex.P21 respectively.
73. PW8 deposed that thereafter fingers of right hand of accused M.M.Dubey were dipped in sodiumcarbonate solution, which turned pink. The same was kept in a bottle and was sealed. Same is Ex.PW.3/1. The solution of shirt pocket wash of M.M.Dubey was proved as Ex.PW.3/2.
74. PW8 deposed that the right hand finger wash of Roshan Lal was taken and he proved the bottle containing the same as Ex.PW.3/3. The solution of shirt pocket wash of Roshan Lal was proved as Ex.PW.3/4.
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75. PW8 deposed that right hand finger and left hand finger wash of J.M.Nayyar were separately obtained and proved the bottles containing solution as Ex.PW.3/5 and Ex.PW.3/6. PW8 further proved the pant pocket wash of J.M.Nayyar as Ex.PW.3/7.
76. PW8 deposed that shirts of M.M.Dubey and Roshan Lal and pant of J.M.Nayyar, were taken into possession and were sealed separately, which he proved as Ex.P.23, Ex.P24 and Ex.P.22 respectively. PW8 deposed that he then recorded post trap memo Ex.PW.1/4 prepared site plan Ex.PW.3/8, and rough site plan Ex.PW.8/B. He proved the search cum seizure memo as Ex.PW.3/9. He deposed that seal after use was handed over to Yogender Singh, the independent witness.
77. SI Arun Rawat was examined by CBI as PW17. He deposed that on 21.01.2004, he was directed by SP CBI to verify the complaint Ex.PW.1/1 made by complainant Arun Kumar Sharma. He deposed that the same was marked to him for verification. He deposed that he went to the office of DGS&D with complainant and after verifying the complaint, he submitted the C.C.No: 16 / 2011 Page No.34 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
verification report on 22.01.2004 Ex.PW.1/2.
78. PW17 deposed that on 22.01.2004, he joined investigations with Inspector D.S.Dagar, the trap laying officer.
79. He corroborated the facts as deposed by PW8 regarding the manner in which trap was laid and the proceedings which were conducted after getting the signal from shadow witness about acceptance of bribe by all the three accused persons.
80. He deposed that post trap memo Ex.PW.1/4 was thereafter prepared, which was signed by all the persons. He identified the solutions containing finger wash and shirt and pant pocket wash of the accused persons as Ex.PW.3/1 to Ex.PW.3/7 and currency notes recovered from possession of accused M.M.Dubey as Ex.P.1 to Ex.P.7, recovered from J.M.Nayyar as Ex.P8 to Ex.P.17 and recovered from Roshan Lal as Ex.P.18 to Ex.P.21. C.C.No: 16 / 2011 Page No.35 of 148
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81. The investigating officer Inspector A.B.Chaudhary, was examined as PW16. He deposed that in January 2004, he was entrusted with investigations of the present case. During the course of his deposition, he stated that on 22.01.2004, he was also one of the members of the trap team. He deposed the manner in which the trap team including independent witnesses was organized by trap laying officer Inspector D.S.Dagar and the manner in which the trap proceedings were conducted. He also proved the pre trap memo Ex.PW.1/3 as well as the post trap memo Ex.PW.1/4 prepared at instance of trap laying officer, Inspector D.S.Dagar. He proved the bottles containing hand wash and shirt and pant wash of the accused persons as Ex.PW.3/1 to Ex.PW.3/7. Currency notes recovered from the accused persons which they had accepted as bribe as Ex.P.1 to Ex.P.21.
82. He deposed that after the investigations were entrusted to him, he had obtained documents from DGS&D, pursuant to the letter dated 24.03.2004 Ex.PW.16/A. He deposed of having received the documents from DGS&D vide letter Ex.PW. 13/A, which included the files of M/s Frost International. He deposed C.C.No: 16 / 2011 Page No.36 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
that the water solutions which were sent to CFSL, were received back alongwith report of CFSL, Ex.PW.7/A. He deposed that he had received a letter from Director of M/s S.V.Instruments Analytica, which is Ex.PW.15/B. He deposed that he had recorded statement of complainant Arun Kumar Sharma. He also proved a letter received from A.S.Bhalla, representative of M/s Star Micronics as Ex.PW.9/A. PW16 the investigating officer deposed that on conclusion of investigations, he had applied for sanction for prosecution of accused persons, from the competent authority. He deposed that sanction orders with respect to M.M.Dubey Ex.PW.6/A, J.M.Nayyar Ex.PW. 6/B and Roshan Lal Ex.PW.6/C were obtained. He deposed that after obtaining the sanction orders, he filed the charge sheet in court.
STATEMENT OF ACCUSED:
83. Separate statement of all the three accused persons were thereafter recorded under section 313 Cr.P.C., wherein the prosecution evidence against them was put, which they denied. It is stated by accused Man Mohan Dubey and Roshan Lal that nothing was recovered from their possession and money was planted C.C.No: 16 / 2011 Page No.37 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
on them. Accused J.M.Nayyar stated that the money recovered from his possession was not the bribe, but was the loan amount which he had earlier given to the complainant and he had returned the same to him on 22.01.2004.
84. On being asked, all the three accused persons wish to examine witnesses in their defence. They were permitted to do so.
DEFENCE EVIDENCE:
85. Availing the given opportunities, accused Man Mohan Dubey examined one Sh.V.K.Puri, who appeared in the witness box as DW1 and Sh.Krishan, DDG of DGS&D who was examined as DW3.
86. On behalf of accused J.M.Nayyar, one Sh.Tarsem Lal Verma appeared in the witness box as DW2 and accused J.M.Nayyar examined himself after taking permission from the court under section 315 Cr.P.C as DW4.
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87. DW1 Sh.V.K.Puri, Zonal Supervisor, Reception Organization, appeared and produced the visitor's register of DGS&D. He proved the entries with respect to 20.01.2004 as Ex.DW.1/A and those of 21.01.2004 as Ex.DW.1/B. This witness on being cross examined by Ld.PP for CBI deposed that at the reception, the person making entry in the register is not asked to produce his identity. He deposed that even if complete name is not mentioned by the visitor in the register, he is not asked to furnish his full name.
88. DW3 Shri Krishan appearing on behalf of accused Man Mohan Dubey deposed that complainant Arun Kumar Sharma came to him on 21.01.2004 regarding registration of some firm, on which he had called Man Mohan Dubey to his room, who gave the clarification on which complainant left satisfied. He deposed that complainant had not lodged any complaint with him.
89. On being cross examined by Ld.PP for CBI, this witness deposed that he had not given anything in writing to the complainant. He stated that he had not lodged any complaint C.C.No: 16 / 2011 Page No.39 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
against complainant with the police but had stopped his entry after coming to know that he was a tout.
90. DW2 Sh.Tarsem Lal Verma appearing on behalf of accused J.M.Nayyar deposed that in October - November 2003, he had visited house of J.M.Nayyar. He deposed that J.M.Nayyar was getting the flat renovated / white washed. He deposed that one Arun Kumar Sharma came there and had requested J.M.Nayyar for a loan of Rs.8,000/ saying that he requires it for treatment of his wife. He deposed that J.M.Nayyar had only Rs.3,000/, so he took Rs.2,000/ from him and gave Rs.5,000/ to said person, who assured to return it in one month. On being cross examined, he denied the suggestion of Ld.PP for CBI that he never had gone to the house of J.M.Nayyar. He denied that Arun Kumar Sharma never came there or never asked for any loan from J.M.Nayyar.
91. Accused J.M.Nayyar examined himself as DW4 under section 315 Cr.P.C. He during the course of his deposition stated that on 16.11.2003, he was present at his newly alloted government accommodation with his wife and friend Tarsem Lal C.C.No: 16 / 2011 Page No.40 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
Verma. He deposed that at that time, complainant Arun Kumar Sharma came there and asked for a loan of about Rs.7,000/ to Rs. 8,000/ saying his wife to be ill. He deposed that as he was not having that much amount with him, he requested his friend Tarsem Lal Verma from whom he had taken Rs.2000/ and in all gave Rs. 5,000/ to complainant Arun Kumar Sharma. He deposed that thereafter they went to the market and had tea for which payment was made by Arun Kumar Sharma. He deposed that he started demanding his money from complainant in December 2003. He deposed that on 22.01.2004 he got a call from complainant who told him that he wants to return his money. He deposed that he told complainant to come to his office. He deposed that on 22.01.2004 during lunch hours, complainant returned his money, which he counted and kept in his pocket. He deposed that CBI caught him immediately thereafter and did not consider his version that this was not bribe, but the return of the loan amount which he had received from the complainant.
92. On being cross examined by Ld.PP for CBI, DW4 deposed that no writing took place between him and the accused C.C.No: 16 / 2011 Page No.41 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
regarding loan. He denied that it did not take place as no loan was ever paid by him to the complainant. He denied that this was bribe which he had accepted from complainant.
93. I have heard the arguments advanced by Ld.Special PP for CBI. I also had the privilege to hear arguments from Sh.R.K.Handoo, Ld.Counsel for accused Man Mohan Dubey. On behalf of accused Roshan Lal, Sh.M.P.Singh, Advocate had advanced arguments. Whereas Sh.Ramesh Gupta, Ld.Senior Counsel assisted by Sh.P.S.Singhal, Advocate had advanced arguments on behalf of accused J.M.Nayyar. ARGUMENTS ON BEHALF OF CBI:
94. It is contended by Ld.Special PP for CBI relying upon the deposition of the witnesses examined by them during the course of trial that prosecution has been able to establish its case against the accused persons who were working as Deputy Director, Section Officer and Assistant, in the Registration Section of DGS&D and thus were public servants. It is contended by Ld.PP for CBI that their being public servant, has not been disputed by the C.C.No: 16 / 2011 Page No.42 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
accused persons.
95. He contended relying upon the deposition of complainant, the independent witnesses coupled with the deposition of Investigating Officer and other officers who were part of the trap team, that accused persons had demanded bribe from the complainant and thereafter accepted the same as a motive or reward for doing an official act and for showing favor to the complainant for rendering their service which they otherwise were supposed to do, as per their official functions.
96. He contended relying upon the deposition of the prosecution witnesses that all the three accused persons were acting inconcert with the sole intention of forcing the complainant to pay bribe to them for doing an act, which they otherwise were supposed to do under the exigencies of their official duties. It has further been contended by Ld.Special PP relying upon the deposition of its witnesses that the currency notes which were accepted by the accused persons as bribe were recovered from them, immediately after accepting the same in presence of independent witnesses and C.C.No: 16 / 2011 Page No.43 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
as per the CFSL Report Ex.PW.7/A their hand wash which turned pink, is found containing traces of phenolphthalein powder, in itself speaks volume about the factum of their having accepted the bribe from the complainant.
97. It is further contended by Ld.Special PP that after conclusion of the investigations the sanction to prosecute the accused persons was also obtained from the competent authority and on the basis of said sanction, which has been duly proved on record by PW6 Sh.M.K.Anand, the present charge sheet was filed against the accused persons. He contended that accused persons be accordingly convicted under the relevant provisions of Law. DEFENCE ARGUMENTS :
(a) On behalf of accused no.1 M.M.Dubey:
98. Sh.R.K.Handoo, Advocate, leading the Defence Arguments, opened the same with a multipronged attack on the case of prosecution. The first and foremost contention of Sh.R.K.Handoo to the case of prosecution was that no case whatsoever is made out against the accused M.M.Dubey, Deputy C.C.No: 16 / 2011 Page No.44 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
Director, DGS&D as there is no demand of bribe by him from the complainant. He contended that even the complaint is silent about the same. He further contended that in the verification report so submitted by SI Arun Rawat to CBI, it is apparent that there are no allegations of any demand on the part of M.M.Dubey, from the complainant.
99. To augment his contention, Ld.Defence Counsel stated that for the purposes of establishing a case for offences u/s 7 and Section 13 (1) (d) of Prevention of Corruption Act, "demand" is prerequisite or sinaquanon for the offence. He contended that acceptance of bribe or even recovery thereof from the accused, divorced off the demand cannot establish the necessary ingredients of the offence against the accused, with which he has been charged.
100. His second contention was that there was no occasion with M.M.Dubey to raise any demand of bribe from the complainant as to the knowledge of complainant, he had already cleared the file of M/s Star Micronics with respect to which the present complaint was filed and thus he had become functus officio. C.C.No: 16 / 2011 Page No.45 of 148
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He contended that as there was no motive with M.M.Dubey for demand of the bribe as the official work which he was supposed to do, has already been done, therefore no case is made out against him.
101. To substantiate his contention, Ld.Defence Counsel relying upon the deposition of the representatives of M/s Star Micronics ie. PW11 Sh.Amarjeet Singh Bhalla contended that these witnesses categorically stated that no demand of bribe was raised from them by M.M.Dubey, nor any such demand from him was conveyed to them by the complainant.
102. Another limb of the argument advanced by Ld.Defence Counsel for accused M.M.Dubey was that the evidence led on record by CBI should be discredited, as the same has not been corroborated by independent witnesses. During the course of his multifaceted attack on the prosecution case, he challenged the independence of the socalled independent witnesses namely Yogender Singh, who appeared in the witness box as PW3 and Kulbhushan Chopra, who was examined as PW5. C.C.No: 16 / 2011 Page No.46 of 148
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103. Sh.R.K.Handoo, pointed out from the cross examination of these two witnesses that Sh.Arun Sharma, SP CBI, at whose instance FIR was registered, had been the Boss of Yogender Singh while he was posted with Air India on deputation. He further contended that the other witness joined in the investigations namely Kulbhushan Chopra, was working as Stenographer with Directorate of Enforcement, which is the parent department of Arun Sharma, the then SP, CBI. He contended that as both these witnesses were subordinates at some point of time to SP CBI, therefore, they by no stretch of imagination can be termed as "Independent witnesses". He contended that their deposition thus being deposition of stock witnesses having vested interests, should be discarded and cannot be used to corroborate the version of the complainant.
104. Sh.R.K.Handoo, Advocate, Ld.Counsel for accused M.M.Dubey brought my attention to the site plan Ex.PW.3/8 and contended that the place where so called independent witness was standing was such, from where he could neither see nor hear anything, which was going on in the room of M.M.Dubey. He C.C.No: 16 / 2011 Page No.47 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
further contended that there are so many contradictions in the version of prosecution witnesses regarding the place where alleged bribe was kept by accused Man Mohan Dubey, who took search of accused Man Mohan Dubey and when the same was conducted.
105. Next contention of Ld.Defence Counsel was that the recovery memo Ex.PW.3/9, alleged to have been prepared at the spot by CBI is a false document, as the same depicts recovery of file pertaining to M/s Frost International from the room of M.M.Dubey, whereas as per Ex.PW.1/4, the post trap memo, the said file was taken away with him, by Roshan Lal, while leaving the room of M.M.Dubey, for going back to registration section. He contended that the recovery memo Ex.PW.3/9, therefore should not be relied upon.
106. Next contention of Ld.Defence Counsel was that in the present case, CBI had deliberately failed to make use of the taperecording device during the trap proceedings, which ordinarily is being used by them in such like cases. He contended that this was done deliberately so as to falsely implicate accused M.M.Dubey, C.C.No: 16 / 2011 Page No.48 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
as they knew that there was no demand of bribe from this accused.
107. It has been contended by Ld.Defence Counsel that in the FIR there were allegations levelled against four persons, but for reasons best known to CBI, no investigations or verification was conducted with respect to the fourth person namely Anil Bindal which in itself speaks volume about the mode and manner of the working of CBI. He contended that the accused has been wrongly and falsely roped in by CBI at its whims and fancies.
108. Lastly it was contended by Ld.Defence Counsel that the sanctioning authority has failed to apply its mind and had granted sanction in a mechanical manner.
(b) On behalf of accused no.2 Roshan Lal :
109. Sh.M.P.Singh, Advocate, had advanced arguments on behalf of accused no.2 Roshan Lal. He while endorsing the contentions raised by Sh.R.K.Handoo, Advocate, supplemented the same stating that the allegations levelled against the accused in the charge is for demand of bribe for the purposes of handing over the C.C.No: 16 / 2011 Page No.49 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
letter of registration / enlistment.
110. He contended that the evidence on record falls short of any conspiracy amongst the accused persons or meeting of mind to force the complainant to pay the demanded bribe. He contended that complainant himself was aware of the fact that registration / enlistment certificate is never handed over to the party or his representative in person and same is always sent to the concerned party, by post. He further contended that the evidence on record falls short of the grounds of demand, as no such certificate of registration was asked for, by the complainant from any of the accused while handing over the alleged bribe.
111. Second contention of Ld.Defence Counsel was that as entry of the complainant in the office of DGS&D was stopped by Mr.M.M.Dubey, therefore complainant in order to take revenge had falsely implicated not only M.M.Dubey, but also Roshan Lal and J.M.Nayyar. He contended that had there been any semblance in the complaint, the complainant should have forwarded / sent his complaint to Director CBI. But in the present case, he straightaway C.C.No: 16 / 2011 Page No.50 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
went to the then SP Arun Sharma, who for vested interests got the FIR registered.
112. His third contention was that after registration of FIR, when a trap laying officer was appointed, choice of independent witnesses should have been left at the discretion of the Trap Laying Officer (TLO) which was not done in the present case and SP Arun Sharma, himself had chosen the independent witnesses from the departments, where he had already worked, therefore the socalled independent witnesses ie. PW3 and PW5, cannot be relied upon as they were acting and deposing under the influence of SP CBI.
113. Another attack led by Ld.Defence Counsel to the case of CBI was that the present case was not investigated independently. He contended that the investigating officer should have been a person who is not the member of the trap team, but in the present case, the investigations were done by Inspector A.B.Chaudhary, who was very much a member of the Trap Team, therefore, it cannot be said that the investigations were carried out in an independent and fair manner.
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114. Ld.Defence Counsel further contended that there are innumerable contradictions in the deposition of the witnesses regarding the alleged demand of bribe and the place where it was demanded and accepted. He further contended that as per the case of CBI, Roshan Lal had accepted the bribe in the room of Man Mohan Dubey, but, for reasons best known to CBI, he was not arrested then and there and was permitted to go back to the Registration Section.
115. He further contended that the investigating officer during the course of investigations, had failed to collect the evidence, as to whether the deficiencies raised by the department, to the applications of M/s Star Micronics were genuine objections or were frivolous ones. His next contention was that even the visitor's register kept at the office of DGS&D was not taken into possession by the investigating officer, to check the veracity of the visits of the complainant, as alleged by him, in his complaint.
116. He further contended that there is no evidence on record that Roshan Lal amassed illegal wealth and no case of C.C.No: 16 / 2011 Page No.52 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
disproportionate assets was registered either against Roshan Lal or any other accused. He contended that as CBI has failed to establish the necessary ingredients of the offence, therefore the accused persons deserves acquittal.
(c) On behalf of accused no.3 J.M.Nayyar :
117. While towing the lines of arguments advanced on behalf of other two accused persons by their respective counsels, Sh.Ramesh Gupta, Ld.Senior Advocate, appearing on behalf of accused J.M.Nayyar, contended that the charge so framed in the present case needs modification / correction.
118. It is contended by Ld.Defence Counsel that in the entire evidence led on record by the prosecution, there is nothing to suggest any meeting of mind amongst the accused persons, for conspiring to force the complainant to pay bribe to them.
119. He contended that complainant was known to accused J.M.Nayyar and used to visit him at his residence. Sh.Ramesh Gupta, Advocate, submitted that complainant had taken C.C.No: 16 / 2011 Page No.53 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
a loan of Rs.5,000/ from accused J.M.Nayyar at the pretext of requiring the same for treatment of his wife who was suffering from Cancer. He contended that J.M.Nayyar had demanded his amount from the complainant on which complainant got annoyed. He contended that on the date of incident, complainant himself called accused J.M.Nayyar and told him that he wants to pay back the loan amount. It is submitted by Ld.Defence Counsel that on the date of incident, Rs.5,000/ were paid by the complainant to J.M.Nayyar, in the staircase of Jeevan Tara Building, which was the loan amount taken by him from the accused.
120. It is contended that the said money was subsequently recovered by CBI from J.M.Nayyar, but the same was not the bribe amount as alleged against the accused. For the purposes of fortifying his contention, Ld.Defence Counsel had relied upon the deposition of DW2 Sh.Tarsem Lal Verma and DW4 accused J.M.Nayyar himself, who appeared in the witness box under section 315 Cr.P.C. It is contended by Ld.Defence Counsel that DW2 as well as DW4 categorically deposed that complainant had visited the house of accused which fact has even been admitted by C.C.No: 16 / 2011 Page No.54 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
the complainant during the course of his cross examination. He contended that complainant had taken a loan of Rs.5,000/ from the accused on said date.
121. Ld.Defence Counsel vociferously contended that the Defence Evidence so led, should be given equal weightage and importance, as is given to the prosecution evidence. He contended that accused himself appeared in the witness box under section 315 Cr.P.C and has subjected himself to the offence of perjury, in case, he is found guilty of giving a false deposition. He further contended that the onus to prove its defence on the accused, stands on a much lower footing, than the onus to prove its case which rests on the prosecution. It is submitted by Ld.Defence Counsel, that prosecution is required to prove its case beyond reasonable doubt, whereas accused is supposed to bring its case only within the purview of preponderance of probabilities.
122. While accepting the recovery of Rs.5,000/ from possession of accused J.M.Nayyar, Ld.Defence Counsel submitted that prosecution has to establish that this amount so recovered from C.C.No: 16 / 2011 Page No.55 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
possession of accused was "bribe", as alleged by them.
123. It is contended by Ld.Defence Counsel that the investigating officer in the present case had not conducted the investigations in a fair manner and had withheld the statement of material witnesses, besides which prosecution has also failed to examine the material witnesses, for which an adverse inference should be drawn against the prosecution.
124. It is submitted by Ld.Defence Counsel that the present accused had already cleared the file of M/s Star Micronics on 16.01.2004 and had no other role to play towards issuance of registration certificate, therefore he had no occasion to demand or accept bribe, as alleged by the prosecution.
125. Last contention of Ld.Defence Counsel was that there are material contradictions in the deposition of prosecution witnesses as complainant stated that bribe amount was paid to accused J.M.Nayyar near the staircase, whereas PW3 stated that the same was paid to him in the registration section, where accused C.C.No: 16 / 2011 Page No.56 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
used to sit.
APPRECIATION OF EVIDENCE AND RIVAL CONTENTIONS:
126. Before adverting to delve upon the contentions raised by Ld.Defence Counsels against the prosecution case visavis the arguments of Ld.Special PP for CBI in support thereof, it is pertinent to look into the point urged on behalf of accused persons regarding modification of the charge dated 20.10.2005.
127. It is contended by Sh.Ramesh Gupta and Sh.M.P.Singh, Advocates on behalf of accused J.M.Nayyar and Roshan Lal that the charge for offences under section 120B IPC framed collectively against all the three accused persons and the separate charge for substantive offences under section 7 and 13(1)(d) read with section 13(2) of Prevention of Corruption Act, against these two accused persons, needs correction / modification. It is submitted that as per the charge sheet allegations against accused J.M.Nayyar is for demand and acceptance of Rs.5,000/ as illegal C.C.No: 16 / 2011 Page No.57 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
gratification and of Rs.2,000/ against accused Roshan Lal, whereas in the collective and the separate charges so framed, inadvertently these amounts are depicted the other way round.
128. I have considered the submissions advanced and have perused the charge so framed by Ld.Predecessor of this court, in the light of facts alleged in the charge sheet. I have also gone through the order dated 07.12.2005 passed on the point of charge. After going through the same, I do find force in the arguments of Ld.Defence Counsels, that charge is required to be corrected.
129. On perusal of complaint Ex.PW.1/1 which was the precursor to the present case, it is clear that complainant has alleged that all the three accused had demanded bribe from him for issuance of certificate for registration of the firm M/s Star Micronics despite the fact that file has already been cleared. The complaint is dated 21.01.2004. On this complaint, trap was laid on 22.01.2004.
130. Meaning thereby that the alleged conspiracy, which is required to be proved by the prosecution initiated before C.C.No: 16 / 2011 Page No.58 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
22.01.2004. The collective charge of conspiracy framed against all the three accused persons, however states as "... on 22.01.2004 entered into criminal conspiracy with each other..."
131. This sentence requires to be modified and the words "on or before" are required to be inserted in between "on 22.01.2004", so that the sentence should read as, "....on or before 22.01.2004 entered into criminal conspiracy with each other....".
132. Apart from this, the other inadvertent error which has crept in the collective and the separate charges against accused J.M.Nayyar and Roshan Lal is also required to be corrected.
133. In case of accused Roshan Lal, the alleged bribe amount is required to be corrected from Rs.5,000/ to Rs.2,000/ and in case of accused J.M.Nayyar from Rs.2,000/ as stated in the charge to Rs.5,000/.
C.C.No: 16 / 2011 Page No.59 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
134. These modifications which are required owing to inadvertent error, are of such trivial nature, that the same if made, to my mind are not going to cause any prejudice either to the case of prosecution or to the case of accused persons. As prosecution has lead the evidence on the basis of allegations so levelled in the charge sheet and the accused persons had cross examined the prosecution witnesses and led their defence evidence being fully aware of the allegations case against them.
135. In view thereof, these modifications / corrections are made in the charges framed earlier by Ld.Predecessor of this Court, against my signatures and endorsement of today's date.
136. The matter is now being finally disposed off, after considering the rival contentions raised on behalf of the parties, on the basis of the evidence, which is already on record. C.C.No: 16 / 2011 Page No.60 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
COMMON CONTENTIONS ON BEHALF OF ALL THE ACCUSED PERSONS:
137. I have given my thoughtful consideration to the arguments advanced in the light of oral as well as documentary evidence on record. I have also gone through the precedents referred upon by Ld.Special PP from CBI as well as Ld.Defence Counsels to substantiate their respective contentions.
138. At this stage, I deem it appropriate to consider and address the common arguments raised by Ld.Defence Counsels for all the three accused persons before dealing with accused specific contentions. The first and the foremost contention which was advanced on behalf of all the three accused persons was to discredit and discard the deposition of independent witness examined by the prosecution ie. of PW3 Yogender Singh and PW5 Kulbhushan Chopra.
139. It is contended by Sh.R.K.Handoo, Ld.Defence Counsel that the genesis of the prosecution case hinges on the C.C.No: 16 / 2011 Page No.61 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
testimony of these two witnesses, who by no stretch of imagination can be termed as "independent witness". He contended while drawing my attention to the cross examination of PW3 and PW5, that SP, CBI viz. Sh.Arun Kumar who was the officer, supervising this raid had remained posted with Air India, being boss of PW3. He further contended that parent department of SP CBI was Enforcement Directorate from where PW5 was called. He contended that as both these witnesses, at some point of time worked as subordinates to SP CBI, therefore they cannot be termed as "Independent witnesses". He contended that their testimony should be rejected, being testimony of stock and interested witnesses, acting at behest and instance of SP CBI.
140. In order to substantiate his contention, Ld.Defence Counsel had relied upon the precedents titled "State of Gujarat through CBI v/s K.P.Shah" reported as 1997 SCC (Cri.) 750". Ld.Defence Counsel brought my attention to the relevant portions of cross examination of PW3 and PW5 and stated that they did not point out this fact that SP CBI had been posted with Air India on deputation and also that his parent department was Enforcement C.C.No: 16 / 2011 Page No.62 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
Directorate, at the time of briefing of the trap team. He further contended on the basis of cross examination of PW8 Inspector D.S.Dagar, the trap laying officer, PW16 Inspector A.B.Chaudhary, the investigating officer and PW17 SI Arun Rawat, that these witnesses, were procured by SP CBI, himself.
141. I have considered the contentions advanced by Ld.Defence Counsel in the light of evidence on record visavis the precedents relied upon.
142. As the outcome of any criminal trial leaves an indelible impression and effect on the life and liberty of the accused, who underwent the same, therefore the importance and significance which is laid to the independent corroboration to the deposition of the complainant, cannot be undermined or compromised.
143. Code of Criminal Procedure obligates it on the part of investigating agency to join independent witnesses during the course of investigations. Witnesses so joined were infact, independent or not, is to be seen from the facts and circumstances of C.C.No: 16 / 2011 Page No.63 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
the case under consideration.
144. PW3 Yogender Singh was working as Deputy Manager (Vigilance) with Air India and PW5 Kulbhushan Chopra was working as Stenographer with Directorate of Enforcement.
145. Admittedly, PW3 during the course of his cross examination stated that Sh.Arun Sharma, SP CBI, had once worked with Air India on deputation and had remained his boss. He however deposed that Arun Sharma remained his boss sometime during the years 1990 to 1994.
146. The trap in the present case was laid in the year 2004 ie. more than 10 years, after PW3 had worked under Arun Sharma. Further, as per PW3, Arun Sharma had worked with Air India on deputation and thus, on the date of trap, he had no control or supervisory role, so far as department of PW3 is concerned.
147. Similarly, PW5 Kulbhushan Chopra who was working as Stenographer with Enforcement Directorate, as on date C.C.No: 16 / 2011 Page No.64 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
of joining of investigations, was not working under the authority of Arun Sharma, SP CBI.
148. It is apparent from deposition of PW8 Inspector D.S.Dagar, the trap laying officer, PW16 Inspector A.B.Chaudhary and PW17 SI Arun Rawat, that the request for the witnesses, was sent by way of "requisition letter" under signatures of SP Arun Sharma.
149. From the testimony of PW3 Yogender Singh, it is apparent that he on, 22.01.2004 was called by his Manager, who directed him to visit CBI Officers to join investigations. Whereas, PW5 Kulbhushan Chopra, deposed that he was directed by his senior officer to visit CBI Office to join investigations. It is thus evident that these two witnesses were not summoned by SP CBI to join investigations by their names, rather a request was forwarded to their respective departments, to send some one to join investigations and it is on this request that PW3 and PW5 were sent by their respective departments to join investigations in the present case. There was no suggestion either to these two witnesses C.C.No: 16 / 2011 Page No.65 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
or to the trap laying officer, on behalf of the accused persons, that these two witnesses were summoned by SP CBI by their specific names.
150. Evidence on record, more particularly the cross examination of these two witnesses, conducted by Ld.Defence Counsels, does not lead to any such inference that on the date of trap, either of them was working under the control or authority of SP Arun Sharma, or that he was in any supervisory position qua PW3 and PW5, even from a distant perspective.
151. The contention of Ld.Defence Counsel that once PW8 was appointed the trap laying officer, then he should have procured independent witnesses, is devoid of any merits. The investigating agency works as a unit and if the requisition letter to the department for making available independent witnesses has been sent by SP CBI, that in itself cannot be held to be any interference in the power and authority of Trap Laying Officer. More particularly, when the witnesses were not summoned by giving specific names to their respective departments. C.C.No: 16 / 2011 Page No.66 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
152. Thus, there cannot be any doubt regarding the independence of the witnesses, who were joined during the trap proceedings in the present case.
153. Further, the precedents relied upon by Ld.Defence Counsel viz. State of Gujarat Vs. K.P.Shah (supra), does not come to the rescue of defence, as in said case the "panch witness"
during the course of his statement before court, tried to give a picture that he had not acted as panch witness in other cases, whereas on the basis of documentary evidence, it was established that he acted as panch witness, in a number of cases. Thus, he was found not worthy of a credible witness. The facts of that case does not apply to the present case.
154. It is apparent from the cross examination of both PW3 and PW5 that they have never appeared in any other case, as a witness for CBI as "panch witness", though PW3 did state that he was associated in investigations by CBI in one more case. No suggestion or material was brought on record, on behalf of the accused persons to confront them during their cross examination to C.C.No: 16 / 2011 Page No.67 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
prove otherwise. Thus, deposition of PW3 and PW5 cannot be discredited at the outset, being testimonies of interested or stock witnesses, as claimed by Ld.Defence Counsels.
155. In view of the aforesaid discussion, I am of the opinion that the evidence of PW3 and PW5, which is yet to be considered on the touch stone of Indian Evidence Act, cannot be discarded at the outset, as has been argued by Ld.Defence Counsel.
156. Another limb of arguments advanced by Ld.Defence Counsels was that the prosecution has withheld material witnesses. Sh.Ramesh Gupta and Sh.M.P.Singh, Ld.Counsels for accused J.M.Nayyar and Roshan Lal contended that neither SP CBI Arun Sharma, nor ASI Sant Lal, nor the constables who as per prosecution case were members of the trap team were examined by the prosecution. They contended that nonexamination of these material witnesses has caused prejudice to the case of accused persons, therefore an adverse inference should be cast on the prosecution case. Ld.Defence Counsels in support of their contentions had relied upon the law laid down by Hon'ble Supreme C.C.No: 16 / 2011 Page No.68 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
Court in case titled "Narain & Others vs. State of Punjab"
reported as AIR 1959 SC 484.
157. I have considered this contention of Ld.Defence Counsels and have also perused the precedents relied upon by them.
158. It is and always has been a sound and well established rule of law and practice, that a court while adjudicating upon a particular issue, should always be concerned with the quality of evidence before it and not quantity for proving or disproving a fact. The material witnesses listed in the "list of witnesses" by the prosecution, should be and ought to be examined. However, the discretion always rests with the Public Prosecutor, who is Incharge of the prosecution case, not to examine irrelevant or superfluous witnesses, more particularly, when a particular fact which is sought to be proved, has already come up on record through deposition of other witnesses already examined.
159. The relevant test has been laid down by Hon'ble Supreme Court in the precedent relied upon by Ld.Defence Counsels C.C.No: 16 / 2011 Page No.69 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
which is, "The test is, whether he is a witness essential to the unfolding of narrative, on which the prosecution is based".
160. Going by this particular test laid down by Hon'ble Apex Court, I am of the opinion that all the material witnesses, who were essential to the unfolding of prosecution case, were examined. Those witnesses who were not summoned despite having figured in the list of witnesses, are superfluous witnesses. Further, there was no prohibition imposed on the accused persons to summon any or all those witnesses, who they think were necessary for their defence. They could have filed an appropriate application for the same, which they failed to do.
161. In view thereof, I am of the considered opinion that this argument has been raised only as an afterthought and in an attempt to dent the prosecution case in an indirect manner. The same is therefore rejected.
162. Next contention raised by Ld.Counsels for all the three accused persons to demolish the case of prosecution was that C.C.No: 16 / 2011 Page No.70 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
the prosecution case is silent with respect to the alleged offence of conspiracy with which the accused persons have been charged. It is contended by Ld.Defence Counsels that there is no material on record, from which it can be inferred that there is any meeting of mind, amongst the accused persons, to do any illegal act.
163. It has been contended by Ld.Defence Counsels that accused Man Mohan Dubey, being Deputy Director, used to sit separately from the Registration Section to whom files used to reach through proper channel. It is contended that accused J.M.Nayyar being Assistant, was the dealing hand, having a specific and specified role assigned to him for processing any application so received with DGS&D, for the purposes of grant of enlistment certificate. It is submitted that accused Roshan Lal being Section Officer, though used to sit in the same section, but had a specific role in the whole process which starts from submission of an application for registration and culminates at either acceptance or refusal by the department for issuance of registration certificate. It is contended that there is no evidence on record from which it can be inferred that there was any prior meeting of mind amongst these C.C.No: 16 / 2011 Page No.71 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
three accused persons, for any illegal act.
164. Section 120A IPC defines "criminal conspiracy". Accordingly to this section when two or more persons agree to do, or cause to be done (i) an illegal act, or (ii) an act which is not illegal, by illegal means such an agreement is designated as "criminal conspiracy".
165. In view of this definition, the gist of the offence is "an agreement to break the law". Parties to such an agreement are guilty of criminal conspiracy, though the illegal act agreed upon by them to be done, has not or could not be done. It is not necessary that all the parties to such an agreement should agree to do a single illegal act. It may comprise of commission of a number of acts. It is not necessary that all the conspirators must know each and every detail of the conspiracy.
166. As conspiracy is seldom an open affair. Its existence and objects can only be deduced from circumstances of the case and conduct of the accused, who are party to such conspiracy. C.C.No: 16 / 2011 Page No.72 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
167. As Conspiracy has to be and can only be inferred from the physical manifestation of conduct of the conspirators / accused. Thus, to deduce actual meeting of minds amongst the accused person to find out transmission of thoughts, the actual words used by them during communication, are to be considered.
168. The conduct of the conspirators / accused are to be deciphered not only from the actual words spoken by them but also from their body language, mannerism and behaviour by which they intervene in the conversation taking place between the complainant and coaccused, as their state of mind has to be inferred on the basis of their conduct.
169. In the present case, it is established on record by the prosecution by virtue of deposition of PW4 Rajeev Mahendroo, the entire procedure of processing any application so filed with DGS&D for grant of registration certificate. The procedural aspect deposed by PW4 during the course of his deposition has not at all been controverted or challenged on behalf of any of the three accused persons, as no suggestion from anyone of them was given to C.C.No: 16 / 2011 Page No.73 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
this witness, contradicting any procedural aspect so deposed by him.
170. It is evident from the deposition of PW4 that any application so received at the Dak Counter, or at website in the prescribed format along with the documents comes to the registration section whereafter it is put up before the Director, through Section Officer and Deputy Director, who then marks it to a dealing hand. The dealing hand then examines the file and documents and points out the deficiency, if any, which is then put up before the Section Officer, who examines the file and makes his observations on the deficiency, if any. It is further apparent from deposition of PW4 that Section Officer then puts it before Dy.Director, who either accepts the deficiencies, so pointed out, or rejects them whereafter the deficiencies are notified to the applicant, through a letter. Reply of the applicant along with the additional documents are then examined by dealing assistant, thereafter by Section Officer and then by a Deputy Director. If deficiencies are made good, Deputy Director orders for grant of enlistment certificate, whereafter dealing hand prepares a draft certificate and after its approval from Deputy Director, its fair copy C.C.No: 16 / 2011 Page No.74 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
is prepared which is then put up before Deputy Director, through Proper Channel. Deputy Director after signing the same, sends it back to Section Officer whereafter the registration certificate is sent to the applicant by registered post.
171. From the deposition of PW4 regarding procedural aspect, which is not challenged by any of the accused persons, it is established on record by the prosecution that Assistant being dealing hand, Section Officer and Deputy Director have clearly defined roles in processing an application for grant of enlistment certificate. It is also clear from the deposition of PW4 that once a registration certificate is signed by the Deputy Director, the file is sent back to the Section Officer immediately, who thereafter send the same to the concerned party by registered / speed post.
172. In the present case, it has come up on record from the depositions of PW1, the complainant, PW3, Yogender Singh , PW5 Kulbhushan Chopra and PW16 Inspector A.B.Chaudhary, that the file pertaining to M/s Star Micronics, which is the bone C.C.No: 16 / 2011 Page No.75 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
contention of the present case Ex.PW.2/1, was recovered from the room of Man Mohan Dubey on 22.01.2004, which was taken into possession vide seizure memo Ex.PW.3/9. This fact was further corroborated on record by Inspector D.S.Dagar, who appeared in the witness box as PW8 and it was he, who had prepared seizure memo Ex.PW.3/9.
173. Although Sh.R.K.Handoo, Ld.Counsel for accused Man Mohan Dubey raised an argument with respect to the authenticity and veracity of Ex.PW.3/9, but to my mind, this objection of Ld.Defence Counsel, does not hold much waters, in view of the discussion and observations made by me in para nos. 290 to 298 (infra).
174. For any applicant who had applied for getting the enlistment certificate with DGS&D, the fruits of his application / efforts is the actual enlistment certificate, when the same after being dispatched, comes in his hand and not when the same even after being granted, keeps on lying in the file of the concerned department. C.C.No: 16 / 2011 Page No.76 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
175. Although it has been contended by Sh.Ramesh Gupta, Ld.Senior Counsel for accused J.M.Nayyar that his client had cleared this file on 16.01.2004 whereafter he had absolutely no role to play on the said file and it is contended by Sh.R.K.Handoo, Advocate, for accused M.M.Dubey that his client had signed the enlistment certificate Ex.PW.2/2 on 20.01.2004 and has thus become, functusofficio. However, to my mind, this fact does not absolve them, from their illegal act of forcing the complainant to agree to their demand of gratification as they kept the certificate even after its grant with them and had not posted the same whereas in ordinary course of business, they should have posted the same, immediately after its grant to the applicant. Accused Man Mohan Dubey in furtherance of the object of the conspiracy kept on holding / retaining the file with him despite having signed the same on 20.01.2004 itself.
176. PW4 during the course of his deposition has categorically stated that Enlistment Certificate Ex.PW.2/2 dated 20.01.2004, should have been sent to the Section Officer immediately, for its dispatch. The same was not done. Reasons were C.C.No: 16 / 2011 Page No.77 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
obvious.
177. On the date of incident ie. 22.01.2004, when the complainant along with shadow witness reached the registration section and met Roshan Lal, it is apparent from the deposition of PW1, the complainant, as well as PW3 Yogender Singh, the shadow witness that J.M.Nayyar came there and intervened in the conversation between complainant and coaccused Roshan Lal and asked complainant "Paise laaye ho kya?..." within the hearing of co accused Roshan Lal. Further Roshan Lal took the complainant with him to the room of M.M.Dubey. These facts in itself reveals that there was a prior meeting of mind amongst the accused persons, to force the complainant to pay illegal gratification to them, only whereafter the registration certificate which was already granted, would have been sent by post or copy thereof given to the complainant.
178. In view thereof, I do not find any merits in the contentions advanced by Ld.Counsels for the accused persons that the material on record is not sufficient to infer that there was no C.C.No: 16 / 2011 Page No.78 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
meeting of mind amongst the accused persons to carry out any illegal design.
179. Prosecution has been able to establish that all the three accused persons hatched a conspiracy, the object of which was to achieve illegal gratification from the complainant.
180. Next argument raised on behalf of the accused persons is that the onus to prove necessary ingredients of the offence with which the accused persons have been charged is on the prosecution. It is contended that prosecution cannot take advantage of the statutory presumption laid down in Section 20 of the Act to substantiate its case without first proving on record the demand and acceptance of bribe from the complainant.
181. For considering the contention advanced by Ld.Defence Counsels for the accused persons, it is pertinent to peruse the relevant section first. The same reads as under:
20. Presumption where public servant accepts gratification other than legal remuneration C.C.No: 16 / 2011 Page No.79 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
(1)Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of subsection (1) of Section 13, it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (2). . .
(3). . .
182. Bare perusal of this Section makes it evident that the same is available for cases under section 7 or 11 or clause (a) and (b) of sub section (1) of Section 13 of the Act. Meaning thereby that for offences under clause (d) of Sub Section (1) of Section 13 of the Act this presumption is not available.
183. I do find force in the contention advanced by Ld.Defence Counsels that this statutory presumption can be raised C.C.No: 16 / 2011 Page No.80 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
by the prosecution only after discharge of the initial onus of proving that the accused have accepted or obtained any gratification or any valuable thing. Further, it is also evident from the language of the Section that the presumption is a rebuttable presumption and the accused can by way of evidence establish on record that whatever was accepted by him was infact not illegal gratification but was something else.
184. With this observation, I proceed to deal with the other arguments in the wake of evidence on record.
185. This has brought me down to the next and most prominent contention urged by Sh.R.K.Handoo, Ld.Counsel on behalf of accused Man Mohan Dubey. He submitted that for the purposes of establishing a case for offence under section 7 and 13(1)
(d) of P.C.Act, "demand" is prerequisite or sinequanon. He contended that acceptance of bribe or even recovery thereof, from the accused, divorced of demand cannot establish the necessary ingredients of the offence. He contended relying upon the cross examination of PW1, the complainant and PW17 SI Arun Rawat, C.C.No: 16 / 2011 Page No.81 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
that even the verification report Ex.PW.1/2 is silent with respect to demand, so far as accused Man Mohan Dubey is concerned.
186. He further contended relying upon cross examination of PW1, the complainant, PW8 Inspector D.S.Dagar, PW16 Inspector A.B.Chaudhary and PW4 Rajeev Mahendroo that there was no occasion with accused Man Mohan Dubey to demand bribe as he had already cleared the file of M/s Star Micronics with respect to which the present case was filed, on 20.01.2004 itself and that fact was in the knowledge of the complainant.
187. This particular argument was supplemented by Ld.Defence Counsels for the other two accused persons as well. It was contended that accused J.M.Nayyar had already cleared this file on 16.01.2004 and had no other role to play. It was contended that accused Roshan Lal had already forwarded the file, thus even he had no motive to demand the bribe as the official work, which accused persons were supposed to do, has already been done by them.
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188. In order to substantiate their contentions Ld.Defence Counsels had relied upon the law laid down in case titled "Shanti Lal Vs. State of Rajasthan" reported as (1976) 1 SCC 577 ; "Suraj Mal Vs. Delhi Administration" reported as AIR 1979 SC 1408 ; "P.K.Gupta vs. CBI" reported as 2011 (4) JCC 2352 ; "State of Kerala Vs. C.P.Rao" reported as (2011) 6 SCC 450 ; "C.M.Girish Babu vs. CBI" reported as 2009 (3) SCC 779 and "Banarasi Dass Vs. State of Haryana" reported as 2010 (3) JCC 1842.
189. I have considered the submissions advanced in the light of relevant portion of evidence of the prosecution witnesses including their cross examination. I have also perused the relevant provisions of law and the precedents relied upon.
190. Before adverting to deliberate upon the contentions advanced by Ld.Defence Counsels for the accused, it is pertinent to peruse Section 7 and Section 13(1) (d) of the Act, which are reproduced as under: C.C.No: 16 / 2011 Page No.83 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
Section7 : Public 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 six months but which may extend to five years and shall also be liable to fine.
Section 13: Criminal misconduct by a public servant : (1) A public servant is said to commit the offence of criminal misconduct,
(a) . . .
(b) . . .
(c) . . .
(d) if he, C.C.No: 16 / 2011 Page No.84 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
(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 positioning 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) . . .
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years an shall also be liable to fine ;
191. Bare perusal of Section 7, makes it evident that the same has been drafted by the Legislature, using words of wide connotation. The literal meaning, if given to the words reveals that the provision is all encompassing. This section which is parimatria to the erstwhile section 161 of Indian Penal Code, does not talk of any specific demand by the accsued for illegal gratification. It specifically states that whoever being, or expecting to be a C.C.No: 16 / 2011 Page No.85 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
public servant, accepts or obtains or agrees to accept or attempts to obtains, any gratification as a motive or reward for doing any official act in exercise of his official functions can be tried for an offence under this Section.
192. Consequently the language, import and spirit of Section 7 of the Act, to my mind is, "acceptance of gratification", its invocation does not call for any other act, action or inaction.
193. Section 13(1) (d) though is differently worded. Legislature in its wisdom has chosen the word "obtains" in this Section and has omitted the words "accepts".
194. The essential ingredients of both these sections with which the accused persons have been charged are delineated as under:
195. Essential ingredients of Section 7 of the Act are : C.C.No: 16 / 2011 Page No.86 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
(I)That the person accepting the gratification should be a public servant ;
(II) That he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in exercise of his official functions, favor or disfavor to any person.
196. The essential ingredients of Section 13(1) (d) of the Act are:
(i) That he should have been a public servant ;
(ii) That he should have used corrupt or illegal means or otherwise abused his position as such public servant ; and
(iii) That he should have obtained a valuable thing or pecuniary advantage for himself or for any other person ;
C.C.No: 16 / 2011 Page No.87 of 148
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197. There is no dispute that all the three accused persons namely Man Mohan Dubey being Deputy Director, Roshan Lal being Section Officer and J.M.Nayyar being Assistant working with DGS&D, were "public servants", at the relevant point of time. The question which requires determination is, as to whether they had accepted the gratification for doing favor to the complainant in exercise of their official functions, or that they have used illegal means or otherwise abused their position, as such public servants, and obtained valuable thing or pecuniary advantage.
198. In order to find out as to whether the essential ingredients of offences under section 7 and 13 (1) (d) of the Act are or are not established on record on the basis of prosecution evidence, it would be pertinent to have the literal meaning of the word "accept" and to see how it is different from the word "obtain".
199. As per Law Lexicon, the word "accept" means "to take or receive what is offered". In Webster's Third New International Dictionary, the word "accept" means take, receive , perceive. As per the Black's Law Dictionary, the word "accept" C.C.No: 16 / 2011 Page No.88 of 148
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means to receive with approval or satisfaction; to receive with intent to retain.
200. Whereas, the word "obtain" as per Law Lexicon (Encyclopedic Law Dictionary) means to acquire, get. In Stroud's Judicial Dictionary, the word "obtain" means to procure or gain, as the result of purpose and effort. Thus, the word "obtains" does not eliminate the idea of acceptance what is given or offered to be given, though, it connotes also an element of effort on the part of the receiver.
201. Ld.Defence Counsels during the course of arguments vociferously contended that for establishing a case against the accused persons for offences under section 13(1) (d) as well as section 7 of the Act, proof of "demand" on the part of accused is required to be proved, as mere acceptance or recovery of tainted money divorced of demand is not sufficient.
202. The answer to this lies in the observations of Hon'ble Supreme Court in the case titled "C.K.Domodaran Nair C.C.No: 16 / 2011 Page No.89 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
Vs. Government of India" reported as AIR 1997 SC 551, Hon'ble Apex Court considered the word "obtain" used in section 5 (1) (d) and held as under : "11. From a combined reading of Section 161 IPC and Section 4(1) of the Act, it is evident that if, in the instant case, the prosecution has succeeded in proving that the appellant was the public servant at the material time and that he had "accepted" or "obtained" Rs.1,000 from PW9 as gratification not only the first two ingredients of the former would stand proved but also the third, in view of the presumption under the latter which the Court is bound to draw unless, of course, the appellant, in his turn, has succeeded in rebutting that presumption. According to the shorter Oxford Dictionary "accept" means to take or receive with a "consenting mind". Obviously, such a "consent" can be established not only by leading evidence of prior agreement, but also from the circumstances surrounding the transaction itself without proof of such prior agreement. If an acquaintance of a public servant in expectation and with the hope that in future, if need be, he would be able to get some official favor from him, voluntarily offers any gratification and if the public servant willingly takes or receives such gratification, it would certainly amount to "acceptance" within the meaning of Section 161 IPC. It cannot be said, therefore, as an abstract proposition of law, that without a prior demand there cannot be "acceptance".
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12. The position will, however, be different so far as an offence under section 5 (1) (d) read with Section 5 (2) of the Act is concerned. For such an offence, prosecution has to prove that the accused "obtained" the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act, as it is available only in respect of offences under Section 5(1) (a) and (b) and not under 5 (1)
(c), (d) or (e) of the Act. "Obtain" means to secure or gain (something) as the result of request of effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be, primary requisite for an offence under Section 5 (1) (d) of the Act, unlike an offence under Section 161, which, as noticed above, can be established by proof of either "acceptance" or "obtainment".
203. Hon'ble Apex Court in no uncertain terms have held that the offence under section 7 (erstwhile 161 IPC) of the Act can be established merely on proof of "acceptance" only, unlike the offence under section 13(1) (d) [previously section 5(1)(d)] for which primary requisite is the "demand" from the accused public C.C.No: 16 / 2011 Page No.91 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
servant.
204. Now the question which requires consideration is, whether the demand has to be direct or it can be inferred from the actions or conduct of the accused using different words.
205. To my mind, such "illgotten money" is not received or given by using the depiction that it is being taken or given as bribe. At times, accused uses camouflaging words to solicit payment of bribe.
206. Hon'ble Supreme Court of India in case titled "Ram Krishan Vs. State of Delhi" reported as AIR 1956 SC 476, had dealt with section 5(1)(d) of P.C.Act 1947, which is parimatria to section 13(1)(d) of P.C.Act 1988. In the said case, Hon'ble Apex Court observed : "In one sense, this is no doubt true but it does not follow that there is no overlapping of offences. We have, primarily to look at the language employed and give effect to it. One class of cases might arise when corrupt or illegal means are adopted or pursued by public servant C.C.No: 16 / 2011 Page No.92 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
to gain for himself a pecuniary advantage. The word "obtains" on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of receiver. One may accept money. This is offered or solicit payment of a bribe, or extort the bribe by threat or coercion, in each case, he obtains pecuniary advantage by abusing his position as public servant..."
"It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely irrespective of motive or reward for showing favor or disfavor..."
207. Section 13(1) (d) of the Act again popped up before Hon'ble Apex Court in the case titled "M.W.Mohiuddin Vs. State of Maharashtra" reported as 1999 S.C. (Cri.)546, wherein Hon'ble Apex Court took into consideration Ram Krishan's case (supra) as well as dictionary meaning of words "obtain" and observed: "Whether there was an acceptance of what is given as a bribe and whether there was an effort on the port of receiver to obtain the pecuniary advantage by way of acceptance of bribe depends on facts and circumstance of each case". C.C.No: 16 / 2011 Page No.93 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
208. In the case of "S.P.Sonvane Vs. State of Gujarat" reported as 2002 Cr.L.J 2787, Hon'ble Apex Court upheld the conviction and in arriving at the conclusion that accused had infact "obtained", the pecuniary advantage, took into consideration that accused made demand and after getting affirmative answer from complainant, made the complainant to wrap the money in the hankerchief.
209. In the backdrop of above statutory provisions and the interpretation of the same by Hon'ble Apex Court, the position which emerges is that to establish offence under section 7 of the Act, prosecution has to establish the "factum of acceptance" of bribe only on the part of accused persons and once that is established, even the statutory presumption under section 20 of the Act, can be brought into play.
210. For offence under Section 13(1) (d) read with section 13(2) of the Act, the prosecution will have to establish an element of effort on the part of accused persons or demand by C.C.No: 16 / 2011 Page No.94 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
them from the complainant abusing their official position in order to obtain, the pecuniary advantage.
211. Having held so, with respect to the substantive sections with which the accused persons have been charged, and their requirements on the basis of the interpretation given to them by Hon'ble Apex Court, I am of the considered opinion that the argument thus raised by Ld.Defence Counsels that even for proving section 7 of Prevention of Corruption Act, prosecution is required to establish the aspect of demand on the part of the accused persons, is ill founded and the same is therefore rejected.
212. The next question being whether or not prosecution has been able to discharge the onus to prove the necessary ingredients in the light of the discussions hereinabove, is to be seen and gathered by appreciating the evidence on record.
213. Complainant, Arun Kumar Sharma who appeared in the witness box as PW1 had deposed that on behalf of M/s Star Micronics, he had applied with DGS&D for grant of enlistment C.C.No: 16 / 2011 Page No.95 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
certificate. The fact that he was engaged by M/s Star Micronics Devices for taking up the matter for registration with DGS&D has been established on record by PW9 Jitender Kumar Mehandiratta and PW11 Amarjeet Bhalla, the partners of the firm. Both these witnesses deposed that they had hired the services of the complainant for the job. The application for registration was in fact filed and a file Ex.PW.2/1 was prepared by the department is proved by PW2 Sh.Sohan Lal Peepal, working as Assistant with DGS&D.
214. It is further apparent from the deposition of PW2 as well as from the file Ex.PW.2/1, that the same was processed by the accused persons viz. J.M.Nayyar being Assistant / Dealing Hand, Roshan Lal, the Section Officer and Man Mohan Dubey being Deputy Director. This fact is even otherwise admitted by the accused persons in their statements under section 313 Cr.P.C.
215. PW1 categorically deposed that all the three accused persons had demanded bribe from him for issuance of certificate for registration, though his file is ready. He proved his complaint to CBI as Ex.PW.1/1. PW1 further deposed that on his C.C.No: 16 / 2011 Page No.96 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
complaint SI Arun Rawat was deputed for verification, who submitted his verification report as Ex.PW.1/2.
216. The version of PW1 that accused J.M.Nayyar and Roshan Lal had asked for the bribe was corroborated by PW17 SI Arun Rawat who also substantiated this fact in his report Ex.PW. 1/2. Although this fact that SI Arun Rawat visited the office of DGS&D with complainant on 21.01.2004 and had in fact met J.M.Nayyar and Roshan Lal has been disputed by them. During cross examination of PW17, suggestions were given on behalf of accused J.M.Nayyar and Roshan Lal that they in fact were not present in the office during postlunch session of 21.01.2004, but the same were denied by PW17. It was put to the witness that J.M.Nayyar at that time was in Karol Bagh for some shopping and Roshan Lal had gone to Hon'ble High Court, which was denied by the witness.
217. Nothing substantial was brought on record by or on behalf of these two accused persons to substantiate the contentions of their nonavailability. Neither any leave application C.C.No: 16 / 2011 Page No.97 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
of J.M.Nayyar nor the movement register showing visit of Roshan Lal to Hon'ble High Court for official purposes, has been brought on record.
218. Consequently, the version given on record by PW1 and PW17 coupled with report Ex.PW.2/1 establishes the factum of verification regarding demand of bribe on the part of accused J.M.Nayyar and Roshan Lal.
219. Admittedly, PW17 during his cross examination and PW1 during his cross examination conducted on behalf of accused Man Mohan Dubey did state that they did not meet Man Mohan Dubey on 21.01.2004 regarding verification of demand of bribe. Ex.PW.2/1 is also silent on this aspect.
220. But that in itself is not sufficient to absolve accused Man Mohan Dubey, as is argued by Ld.Defence Counsel. Verification was asked to be done just to check the veracity and authenticity of the complainant, the same cannot be considered as the epitome of the investigations, as the same were started only C.C.No: 16 / 2011 Page No.98 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
after registration of FIR Ex.PW.8/A, which succeeded the verification report.
221. PW1, the complainant in cogent and clear terms deposed that on 22.01.2004, a trap team was constituted of which Inspector D.S.Dagar, was the trap laying officer (TLO). He deposed that the said team included two independent witnesses viz. Yogender Singh and Kulbhushan Chopra. PW1 further deposed that Yogender Singh was deputed as shadow witness and was directed by TLO to remain with him to see and overhear the conversation and to give signal once the entire transaction was over. PW1 further deposed that they had been given practical demonstration of reaction between phenolphthalein powder and solution of sodium carbonate.
222. He further deposed that the currency notes which were to be used as "tainted money" were treated with phenolphthalein powder and the details thereof, were notes on pre trap memo Ex.PW.1/3.
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223. All these facts were corroborated on record by PW3 Yogender Singh, PW5 Kulbhushan Chopra, PW16 Inspector A.B.Chaudhary and PW17 SI Arun Rawat. The same were substantiated by PW8 Inspector D.S.Dagar.
224. PW1, PW3 and PW8 corroborated each other and deposed that signal to the other members of the trap team was to be given once the entire transaction is over, as three accused were involved in the case.
225. PW1, the complainant deposed that on 22.01.2004, after reaching the office of DGS&D along with the trap team, he along with PW3 went inside the registration section and met accused Roshan Lal. He deposed that accused J.M.Nayyar also came there and intervened. PW1 deposed that J.M.Nayyar took him near staircase and as money was demanded by all the three accused, he gave Rs.5,000/ to J.M.Nayyar. On being cross examined, PW1 had deposed that he had given the money to J.M.Nayyar on his demand. He went on to depose that thereafter Roshan Lal took him to the room of Man Mohan Dubey. PW1 C.C.No: 16 / 2011 Page No.100 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
deposed that there he gave Rs.5,000/to Man Mohan Dubey, who kept the same in drawer of his table and Rs.2,000/ to Roshan Lal.
226. PW3 the shadow witness deposed that PW3 deposed that all the members of trap team then reached DGS&D office, whereafter he along with the complainant, went inside the office where complainant met accused Roshan Lal and asked him "Meri file ka kaam karaa dijiye..." on which Roshan Lal asked "Paise laaye ho kya"?.. PW3 deposed that in the meantime accused J.M.Nayyar came there to whom complainant introduced him as representative of some company. PW3 deposed that J.M.Nayyar then asked "Paise laaye ho kya...?" to which complainant said Yes and requested "Teen Hazaar le lijiye..." but J.M.Nayyar insisted "Nahi Paanch hi loonga..". PW3 deposed that thereafter complainant gave the money to J.M.Nayyar who counted the same and kept it in the right pocket of his pant.
227. PW3 further deposed that thereafter accused Roshan Lal took a file and asked the complainant to accompany him C.C.No: 16 / 2011 Page No.101 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
to Man Mohan Dubey's Room. PW3 deposed that he also went with them, where Roshan Lal asked him to remain standing near the inner door of the Room and Roshan Lal along with the complainant went inside. PW3 further deposed that complainant told Man Mohan Dubey "Hum aapke paas itne case lekar aate hain.. kuch consession kar dijiye..." to which Manmohan Dubey responded "Mat Leke Aaiye"... He deposed that complainant then gave Rs.5,000/ to Roshan Lal, who inturn handed over the same to Man Mohan Dubey, who kept the same in his shirt pocket. PW3 deposed that Roshan Lal then asked for his money, which complainant gave him and Roshan Lal kept the same in his shirt pocket.
228. It is apparent from the combined reading of deposition of both these witnesses that they have clearly deposed the material aspects of the transaction. PW3, the shadow witness who was specifically deputed to overhear the conversation did exactly that and had also narrated the same verbatim during the course of his deposition in court.
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229. Ld.Defence Counsels of all the accused persons had raised various objections stating that if the complainant himself had not narrated the exact conversation, the same as deposed by PW3 cannot be accepted. It is further contended that there is contradiction in the version of PW1 and PW3 regarding the place where J.M.Nayyar was paid the tainted money.
230. This contention of Ld.Defence Counsels to my mind is devoid of any merits. Minor contradictions do occur in the deposition of truthful witnesses. Due consideration is required to be given to the fact that statement of the witness is recorded in court after lapse of considerable period of time, from the date of actual happening.
231. The capacity and power of perception of the facts, their retention and thereafter description in court at a later stage, differs from person to person. Same yardsticks cannot be adopted to evaluate the deposition of all the witnesses, coming from the different background. It has been held in a number of cases by Hon'ble Apex Court that it is not expected from a witness to give the C.C.No: 16 / 2011 Page No.103 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
exact and concise version of the sequence of events and of the facts observed and perceived by him.
232. In the backdrop of above, I shall now evaluate the prosecution evidence on this aspect of demand and acceptance individually.
(a) CONTENTIONS QUA ACCUSED J.M. NAYYAR:
233. In the present case, acceptance of Rs.5,000/ from complainant by J.M.Nayyar on 22.01.2004 is not disputed, rather admitted by the accused, therefore the place where it was given to him by the complainant becomes irrelevant in the context of the case. Complainant however has categorically stated that when this amount was paid by him to J.M.Nayyar, PW3 was present there. Thus, the version given on record by PW3 is required to be taken into consideration.
234. As per PW1 and PW3, accused J.M.Nayyar came there when complainant was talking to Roshan Lal in presence of C.C.No: 16 / 2011 Page No.104 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
PW3. PW3 deposed that J.M.Nayyar had asked "Paise laaye ho kya...", on which complainant said "Yes" and requested "Teen Hazaar le leejiye..." but J.M.Nayyar insisted "Nahi... Paanch hi loonga...". Whereafter complainant gave him the money which he counted and kept in his pant pocket.
235. I do not find any reason to disbelieve this version of PW3 which has come on record. From the same, coupled with the verification report Ex.PW.1/2 and deposition of PW17 to that effect, the bribe amount was demanded by accused J.M.Nayyar from complainant and had obtained the same on 22.01.2004. Had it been the return of the loan amount by the complainant to accused J.M.Nayyar as claimed by the accused in his defence, then there was no occasion with the complainant to request J.M.Nayyar to accept Rs.3,000/. It is evident that the plea sought to be raised on behalf of accused J.M.Nayyar that he had extended a loan of Rs.5,000/ to the complainant, which he returned to him on 22.01.2004 is an afterthought and has been raised to make an attempt to wriggle out of the situation.
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236. The argument raised by Ld.Defence Counsel on behalf of accused J.M.Nayyar, relying upon the law laid down in case titled "Rampadarath Gomi & Another vs. State" reported as 2012 AD (Cri.) (DHC) 38, is a valid and sound argument. There cannot be any dispute to this proposition to law laid down by Hon'ble High Court that the defence witnesses are also to be treated at par, with the prosecution witnesses.
237. However, if from the facts deduced on the basis of cogent and clear deposition of prosecution witnesses points towards the guilt of accused, then the defence sought to be raised by the accused through his witnesses is to be considered with the circumspection.
238. In the present facts and circumstances, the defence sought to be raised by accused J.M.Nayyar does not appear to be reasonable and plausible. The reasons are not far to seek. C.C.No: 16 / 2011 Page No.106 of 148
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239. DW4, the accused J.M.Nayyar during his deposition under section 315 Cr.P.C deposed that complainant Arun Kumar Sharma, visited his house on 16.11.2003 and at that time, one Sh.T.L.Verma was also present there. This fact was corroborated by DW2 T.L.Verma as well. So far as visit of Arun Kumar Sharma to the house of accused is concerned, the same stands established as complainant himself during his cross examination had admitted this fact.
240. It is the purpose of that visit which is of material importance. As per DW2 T.L.Verma and DW4 Accused J.M.Nayyar himself, complainant had visited him for taking loan which he required for treatment of his wife. This suggestion when given to the complainant during his cross examination was denied by him. The plea sought to be raised by the accused that complainant has visited him for taking loan does not appeal to reason. From the deposition of DW4, the accused as well from the cross examination of complainant, it is apparent that the said visit of complainant to the house of accused J.M.Nayyar, was his only visit. DW4 nowhere deposed that complainant used to visit his house frequently. C.C.No: 16 / 2011 Page No.107 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
241. That being the case, it appears highly improbable for a person visiting the house of someone for the first time, would ask for loan from him. It is also not the case of accused J.M.Nayyar that he shares close association with the complainant. Had that been the case, then it would have been highly improbable for the complainant to lodge complaint against a person with whom he shares a close relationship.
242. Further from the deposition of DW2, DW4 and cross examination of PW1, it is evident that during said visit by the complainant to the house of accused J.M.Nayyar, they had tea in the market for which payment was made by the complainant. This established fact also belies the plea of accused regarding extending loan to the complainant. Had complainant visited the house of accused asking for loan, then he should have been in a position of financial distress. For such a person in distress to entertain others by making payment for the tea the chances becomes negligible. However, in view of the admitted fact that payment for tea, was made by the complainant, the plea of accused that he came to his house asking for loan, does not appear to be sound and trustworthy. C.C.No: 16 / 2011 Page No.108 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
243. Further, had that been the position and complainant as per accused J.M.Nayyar visited his office on 22.01.2004 for return of the loan amount, then why complainant had gone to Roshan Lal in the registration section. As per PW1, it is at that time that accused J.M.Nayyar came there and intervened and took him near staircase where he asked for his money which complainant paid.
244. The reason for accused J.M.Nayyar to take complainant near stair case, which as per deposition of PW3 are situated adjacent to Registration Section is because of the presence of other persons in the registration section. In presence of others, accused J.M.Nayyar did not want to take the money from the complainant. Had it been the loan amount, which accused was taking back from complainant, he could have taken it then and there in presence of all. But that was not to be.
245. So far as coaccused Roshan Lal's presence is concerned, accused J.M.Nayyar had nothing to hide from him, as they were the ones, who were acting in concert for extracting bribe C.C.No: 16 / 2011 Page No.109 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
from the complainant.
246. In the backdrop of this discussion, I am of the opinion that the defence sought to be put forth by accused J.M.Nayyar does not hold ground. The same is thus rejected in view of cogent and clear deposition of complainant duly corroborated by PW3 Yogender Singh coupled with the fact that recovery of the currency notes treated with phenolphthalein powder taken by accused from complainant is admitted by him.
(b) CONTENTIONS QUA ACCUSED ROSHAN LAL:
247. Sh.M.P.Singh, Advocate, Ld.Counsel for accused Roshan Lal contended that his client has been framed in this case and money was planted on him, as he never demanded any bribe from the complainant. He brought my attention to the cross examination of PW1 and stated that Roshan Lal on his own was not capable of issuance of the registration certificate, therefore, there cannot be any motive or ground for him to demand bribe for the same. He contended that witnesses from M/s Star Micronics ie. PW9 and PW11 clearly deposed that accused persons had never C.C.No: 16 / 2011 Page No.110 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
demanded any bribe from them nor any such demand was conveyed to them by the complainant.
248. I have considered the submissions advanced by Ld.Defence Counsel. Deposition of prosecution witnesses more particularly, their cross examination conducted by Ld.Defence Counsel is also perused.
249. Admittedly, partners of M/s Star Micronics Devices which is the firm in question in the context of present case viz. Jitender Kumar Mehandiratta and Amarjeet Bhalla, who appeared in the witness box as PW9 and PW11 respectively during the course of their cross examination admitted the fact that none of the accused had demanded any bribe from them nor any such demand was conveyed to them by the complainant. But that is not the case of prosecution.
250. As per the prosecution case, it was the complainant who acting as agent on behalf of the firm had applied for registration of the firm with respect to which file Ex.PW.2/1 was C.C.No: 16 / 2011 Page No.111 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
created. It was he who was dealing on behalf of the firm and demand of bribe was raised by the accused persons from him, as is deposed by him.
251. Merely, because there is no evidence of demand on the part of accused persons from the partners of M/s Star Micronics Devices that in itself is not sufficient to exonerate the accused persons by discarding the other evidence on record.
252. From the composite reading of depositions of PW1, the complainant and PW3, the shadow witness it is clear that immediately when PW1 along with PW3 had reached at the seat of Roshan Lal in registration section on 22.01.2004, Roshan Lal asked the complainant "Paise laaye ho kya...??" and thereafter Roshan Lal took complainant to Man Mohan Dubey's Room where PW3 accompanied them. After payment of money to Man Mohan Dubey, Roshan Lal demanded his share on which PW1 gave him Rs.2,000/ which he kept in the pocket of his shirt. This fact of demand has been further corroborated from the deposition of PW17 SI Arun Rawat who gave his verification report Ex.PW.1/2 C.C.No: 16 / 2011 Page No.112 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
regarding demand of bribe by accused Roshan Lal.
253. The fact that Roshan Lal had demanded his share in the room of Man Mohan Dubey as is deposed by PW1 and corroborated by PW3 goes on to establish that they were acting in concert with each other.
254. Further, as the registration section where complainant first met the accused Roshan Lal, is used by other officials as well, accused Roshan Lal, thus had chosen the safe place ie. chamber of Man Mohan Dubey with whom he was acting in concert, to ask for his share.
255. The contention of Ld.Counsel for accused Roshan Lal that he has been falsely implicated, to my mind is devoid of any merits, in view of clear and cogent evidence on record. It was contended by Ld.Defence Counsel that if accused Roshan Lal had accepted the money in Man Mohan Dubey's room, then why he was not apprehended there itself and was permitted to walk back to the registration section.
C.C.No: 16 / 2011 Page No.113 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
256. I do not find any merits in this contention of Ld.Defence Counsel in view of the deposition of PW1, PW3 and PW8 Inspector D.S.Dagar in this regard. From the deposition of these three witnesses, it is apparent that the directions to PW3 by Trap Laying Officer was to give signal on conclusion of transaction of bribe with all the three accused persons. In the present case as three accused were involved having their respective seats at two different places, therefore, the directions so given by Trap Laying Officer to complainant and PW3 appears to be reasonable. As if they would have apprehended the first accused J.M.Nayyar immediately after acceptance of bribe by him, there were chances of failure of trap qua the other two accused persons. Consequently, the trap team was divided to keep watch at both the places as is deposed on record by PW5 Kulbhushan Chopra, PW16 Inspector A.B.Chaudhary, PW17 SI Arun Rawat and PW8 Inspector D.S.Dagar.
257. It is in the wake of these circumstances that after completion of transaction in Man Mohan Dubey's room, when accused Roshan Lal left after having accepted his share for going C.C.No: 16 / 2011 Page No.114 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
back to the registration section, that complainant gave signal to the raiding party. Merely because Roshan Lal was apprehended after he reached back to the Registration Section from Man Mohan Dubey's room which distance can be covered by two minutes walk as is deposed by PW3 and PW8, the same does not erode the credence of the prosecution witnesses.
258. Consequently, in view of the deposition of PW1 and PW3 on one hand, coupled with verification report and deposition of PW17, it is apparent that accused Roshan Lal raised demand of Rs.2,000/ from the complainant for illegal gratification and in fact, obtained the same, as it was so recovered from his possession as per depositions of PW5, PW16, PW17, and PW8 read with Ex.PW.1/4.
(b) CONTENTIONS QUA ACCUSED MAN MOHAN DUBEY:
259. On factual aspects, Ld.Counsel for accused Man Mohan Dubey, Sh.R.K.Handoo, Advocate, contended that complainant in his deposition has not ascribed any demand of bribe from him by Man Mohan Dubey. He contended that deposition of C.C.No: 16 / 2011 Page No.115 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
PW3 can only be considered for corroboration of deposition of PW1 and not for supplementing the facts not deposed by PW1. He further contended drawing my attention to the site plan prepared by PW8 Inspector D.S.Dagar Ex.PW.3/8, that from the position "C" where witness PW3 was allegedly standing, nothing happening inside the room of M.M.Dubey was either visible or audible, therefore whatever he has deposed, is not required to be considered.
260. Ld.Defence Counsel further brought my attention to the cross examination of PW1 and PW3 and pointed the contradictions regarding the search of accused M.M.Dubey after apprehension. He further pointed out the discrepancy regarding timing of personal search of accused M.M.Dubey by PW3 from his cross examination and the cross examination of PW5 and PW8.
261. Another contention advanced by Ld.Defence Counsel was that there was an automatic door closer at the room of accused M.M.Dubey as deposed by PW4 and also admitted by complainant PW1, therefore the door of the room being closed, PW3 would not have witnessed anything, and thus, this testimony C.C.No: 16 / 2011 Page No.116 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
should be discarded on that count as well.
262. I have given my thoughtful consideration to the contentions advanced by Ld.Defence Counsel and have also gone through the relevant portions of cross examination of PW1, PW3, PW8, PW16 and PW17. I have also perused the site plan Ex.PW. 3/8 and have also seen the deposition of PW4 regarding automatic door closer.
263. Before adverting to consider the contentions of Ld.Defence Counsel, it would be relevant to mention that the facts alleged by the prosecution can be addressed and proved on record from the testimonies of its witnesses. If there are two witnesses to a particular fact, then one of them cannot be termed as primary witness and deposition of other cannot be relegated to any secondary spot. Both witnesses to a particular fact through their deposition can compliment each other.
264. Further, it is a matter of common knowledge that no two persons passing through or experiencing some set of facts, if C.C.No: 16 / 2011 Page No.117 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
called upon subsequently to depose the same, would give exactly the same version using similar words. As comprehension, perception, retention and the description of the retained facts would differ from person to person, depending upon various factors, thus this contention of Ld.Defence Counsel that deposition of PW3, if at all considered, can only be considered for corroboration of facts deposed by PW1 and for no other purpose, to my mind is devoid of any merits. Had that been the legal position, then in the eventuality of complainant of any case being not available for deposition on any account, would render the deposition of shadow witness, howsoever, cogent and trustworthy it be, nugatory and redundant. That can never be the legal position.
265. In the backdrop of above, I have considered the evidence on record.
266. PW1, the complainant deposed that Roshan Lal asked him to accompany him to the room of M.M.Dubey, where he gave Rs.5,000/ to M.M.Dubey and Rs.2,000/ to Roshan Lal. PW3 the shadow witness deposed that he accompanied them to the room C.C.No: 16 / 2011 Page No.118 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
of Man Mohan Dubey, where Roshan Lal asked him to remain standing near the inner door of the room. PW3 deposed that Roshan Lal and the complainant went inside and complainant told accused Man Mohan Dubey "Hum aapke paas itne case lekar aate hai.... kuch consession kar dijiye....", to which Man Mohan Dubey responded "mat leke aaiyee...". He deposed that complainant then gave Rs.5,000/ to Roshan Lal, who in turn handed over the same to Man Mohan Dubey, who kept the same in his shirt pocket.
267. This version of the complainant and the shadow witness is also depicted in the post trap memo Ex.PW.1/4 prepared by PW16 Inspector A.B.Chaudhary at instance and dictation of PW8 Inspector D.S.Dagar, the trap laying officer. PW8 during the course of his cross examination by Ld.Defence Counsel categorically stated that this portion mentioned as B to B in Ex.PW.1/4 was recorded as disclosed by PW1 and PW3 to him.
268. Meaning thereby that PW3 did observe all these C.C.No: 16 / 2011 Page No.119 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
facts while standing at the door to the room of accused Man Mohan Dubey. Though Ld.Defence Counsel relying upon cross examination of PW4, the Section Officer of DGS&D and the complainant PW1, contended that there was an automatic door closer at the door leading to the room of accused M.M.Dubey, but that in itself is not sufficient to my mind, to discard the cogent and consistent version of PW3.
269. Even if it is accepted that there was an automatic door closer at the door, to the room of accused M.M.Dubey as deposed by PW4, but there is nothing on record to show that on the date of incident, the said door closer was working properly and was in working condition. Further, PW3 in his cross examination had categorically denied the fact that the door where he was standing while Roshan Lal and complainant went inside was closed. He categorically deposed that it was open at that time.
270. Secondly, it is contended by Ld.Defence Counsel on the basis of site plan Ex.PW.3/8 that from position "C" which is the place where PW3 was standing nothing could be seen or heard, C.C.No: 16 / 2011 Page No.120 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
goingon inside the room. This contention of Ld.Defence Counsel also is devoid of any merits.
271. As the said site plan which was prepared at the spot by PW8 was rough site plan. On the basis of said site plan, the clear deposition of PW3 cannot be thrown overboard, when the witness on being cross examined had denied the fact that from the place, where he was standing, he had neither seen nor heard anything. He categorically maintained his stand of having witnessed every aspect of the incident happening inside the room of Man Mohan Dubey, on the date of incident. Clear and cogent occular version of a witness to the incident cannot be discarded on the basis of a rough site plan, prepared by Trap Laying Officer, who admittedly was not a draftsman or architect, to have prepared the plan, giving exact dimensions.
272. Ld.Defence Counsel then tried to demolish the version of PW3, stating that there are contradictions between his deposition and testimony of PW1, PW5 and PW8. He contended that PW1 deposed that accused Man Mohan Dubey, after accepting C.C.No: 16 / 2011 Page No.121 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
the bribe kept it in the drawer of his table, whereas, PW3 deposed that he kept it in his shirt pocket. He further contended that as per deposition of PW1, search of accused M.M.Dubey was conducted by PW5 Kulbhushan Chopra, whereas, as per deposition of PW3 and PW8, it was done by PW3 himself. He then pointed out the cross examination of PW3 regarding the time when PW3 took search of accused Man Mohan Dubey, whether it was done prior to arrival of Inspector S.C.Daundriyal and Inspector A.B.Chaudhary and PW5 with other coaccused persons, or after their arrival in the room of accused Man Mohan Dubey.
273. These contradictions to my mind are too trivial to be given undue importance so as to throw overboard the otherwise cogent deposition of the prosecution witnesses, wherein they have given clear description of the material aspects of the incident.
274. In view thereof, prosecution through the deposition of PW1, the complainant which is complimented by deposition of PW3 Yogender Singh, the shadow witness, has been able to establish that on demand raised by accused J.M.Nayyar, C.C.No: 16 / 2011 Page No.122 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
Roshan Lal and Man Mohan Dubey through their spoken words and conduct, complainant had handed over Rs.5,000/, Rs.2,000/ and Rs. 5,000/ respectively to them, which they accepted and had kept with them in their possession.
275. Further, as per the deposition of PW3, he on completion of the entire transaction, when accused Roshan Lal had left the room of accused Man Mohan Dubey, for going back to the Registration Section, he gave the signal to Inspector D.S.Dagar. This fact was corroborated by PW8 Inspector D.S.Dagar. PW8 further deposed that he then instructed Inspector S.C.Daundriyal to move to the Registration Section and along with other members of the trap team, apprehend accused Roshan Lal and accused J.M.Nayyar. This version deposed by PW8 finds corroboration in the testimonies of PW5 Kulbhushan Chopra, the other independent witness, who remained with the trap team, waiting for signal and also in the depositions of PW16 Inspector A.B.Chaudhary and PW17 SI Arun Rawat.
C.C.No: 16 / 2011 Page No.123 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
276. PW8 deposed that immediately thereafter he along with PW3 came inside the room of accused Man Mohan Dubey and challenged him, disclosing his identity and asked PW3 to take search of accused Man Mohan Dubey. PW3 Yogender Singh took search of accused Man Mohan Dubey and recovered Rs.5,000/ from shirt pocket of accused Man Mohan Dubey. PW3 and PW8 deposed that by that time, other members of the team entered the room of accused Man Mohan Dubey with accused Roshan Lal and accused J.M.Nayyar in their custody.
277. It was deposed by PW3 and corroborated by PW1, PW5, PW8, PW16 and PW17 that search of accused Roshan Lal and accused J.M.Nayyar was conducted by PW5 Kulbhushan Chopra, who recovered currency notes amounting to Rs.2,000/ from shirt pocket of accused Roshan Lal and Rs.5,000/ from pant pocket of accused J.M.Nayyar.
278. All the prosecution witnesses then went on to depose that thereafter right hand wash and shirt pocket wash of accused Man Mohan Dubey was obtained in clear solution of C.C.No: 16 / 2011 Page No.124 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
sodiumcarbonate, which turned pink and the same were kept separately in the bottles and were sealed at the spot.
279. It has also been established on record to unflinching deposition of PW1, PW3, PW5, PW8, PW16 and PW17, that right hand wash and shirt pocket wash of accused Roshan Lal was obtained in sodiumcarbonate solution which was freshly prepared and the same turned pink, which was then kept separately in the bottles, which were then sealed.
280. As per prosecution witnesses, right hand and left hand wash and also the pant pocket wash of accused J.M.Nayyar was obtained in fresh prepared solution of sodiumcarbonate, which turned pink and it was then kept separately in the bottles, which were then sealed.
281. PW8 deposed that he then tallied the currency notes so recovered from the possession of accused persons with the numbers recorded in the pretrap memo Ex.PW.1/3 and found to be the same. He deposed that thereafter on his dictation, post trap C.C.No: 16 / 2011 Page No.125 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
memo Ex.PW.1/4 was prepared, which was signed by all the members of trap team. This deposition of PW8 finds corroboration in testimonies of other prosecution witnesses including complainant and the independent witnesses PW3 and PW5.
282. PW16 Inspector A.B.Chaudhary deposed that thereafter he was appointed as investigating officer. He deposed that he had sent the sealed bottles containing hand wash and clothes wash solutions of the accused persons to CFSL for the opinion. PW16 deposed that he had subsequently received the CFSL Report Ex.PW.7/A.
283. PW7 Sh.P.Nath, the Scientific Officer from CFSL appeared and deposed that he did receive 7 sealed bottles Ex.PW.3/1 to Ex.PW.3/7 which were examined and he proved his report Ex.PW. 7/A, thereby confirming presence of traces of phenolphthalein powder in the solutions contained in those bottles.
284. No doubt, on the aspect of search and recovery of the bribe amount, all the prosecution witnesses were cross examined C.C.No: 16 / 2011 Page No.126 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
by Ld.Defence Counsels, but nothing material emanated out of the same, so as to discredit the cogent and consistent deposition of PW1, PW3, PW5, PW8, PW16 and PW17 on this aspect. Though, Ld.Counsel for accused M.M.Dubey while pointing towards cross examination of PW1, did urge that as per PW1, accused M.M.Dubey had kept the money in the drawer of his table, whereas PW3 and PW8 deposed that it was recovered from shirt pocket. This minor contradiction to my mind, is of no consequence and the same cannot overshadow the otherwise clear description of PW3 and PW8 on this aspect. Contradiction such as this, do occur due to lapse of time between the actual incident and date of recording of deposition of the witness in court.
285. All these prosecution witnesses had identified the case property as well. Currency notes recovered from accused M.M.Dubey as Ex.P.1 to Ex.P.7, those recovered from accused J.M.Nayyar as Ex.P.8 to Ex.P.17 and the ones recovered from accused Roshan Lal as Ex.P.18 to Ex.P.21. Pant of accused J.M.Nayyar was identified as Ex.P.22, shirt of accused Roshan Lal as Ex.P.23 and shirt of accused M.M.Dubey as Ex.P.24. The bottles C.C.No: 16 / 2011 Page No.127 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
containing hand wash and shirts and pants pocket wash as Ex.PW. 3/1 to Ex.PW.3/7.
286. Thus, from the evidence which has come up on record, prosecution has been able to establish that the currency notes which were treated with phenolphthalein powder by CBI and given to the complainant with instructions to give them to the accused on demand were recovered from their possession and presence of traces of phenolphthalein powder in their hand wash and shirts and pant pocket wash as per Ex.PW.7/A goes on to establish that the accused persons did accept the bribe and kept the currency notes in their possession.
287. This has now brought me down to another important facet of the case. The same is recovery of the file pertaining to M/s Star Micronics Devices Ex.PW.2/1 containing the original certificate of registration Ex.PW.2/2, duly signed by accused M.M.Dubey as has been deposed by PW2, Sh.Sohan Lal Peepal, Assistant working with DGS&D. C.C.No: 16 / 2011 Page No.128 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
288. Ex.PW.3/9 is the recovery memo which depicts recovery of this file, which is the bone of contention in the present case, from the room of accused M.M.Dubey. Besides this file, the present recovery memo prepared by Inspector D.S.Dagar, PW8 and signed by PW3 Yogender Singh and PW5 Kulbhushan Chopra, the independent witnesses, shows recovery of two other files from the room of accused M.M.Dubey, one being the file pertaining to M/s S.V.Instruments Analytica Pvt.Limited and the other pertaining to M/s Frost International.
289. PW3 Yogender Singh deposed that these three files were recovered from the room of accused M.M.Dubey, for which recovery memo Ex.PW.3/9 was prepared. PW5 and PW8 corroborated this version.
290. Sh.R.K.Handoo, Advocate, Ld.Defence Counsel for accused M.M.Dubey vociferously contended that recovery memo Ex.PW.3/9 is a false document as the same is contrary to the post trap memo Ex.PW.1/4. He contended that CBI has wrongly foisted the file pertaining to M/s Star Micronics Devices, in the room of C.C.No: 16 / 2011 Page No.129 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
accused Man Mohan Dubey, in this recovery memo, whereas this file was with the Registration Section. He contended that as per deposition of prosecution witnesses ie. PW3 and PW8 as well as post trap memo Ex.PW.1/4, accused Roshan Lal had picked the file of M/s Frost International, while accompanying the complainant to the room of accused M.M.Dubey and after getting signatures of accused M.M.Dubey on said file, he again carried that file back to the registration section, from where he was apprehended. He contended that in view of this evidence on record, the file of M/s Frost International remained in the Registration Section, whereas in the recovery memo Ex.PW.3/9, CBI has shown recovery of file of M/s Frost International besides the file of M/s Star Micronics Devices from the room of accused Man Mohan Dubey, thus this document being a false document should not be relied upon.
291. The argument so advanced by Sh.R.K.Handoo, Advocate, Ld.Counsel for accused M.M.Dubey, on the fact of it, appears very interesting, but on the basis of evidence on record, the same got deflated.
C.C.No: 16 / 2011 Page No.130 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
292. PW16 Inspector A.B.Chaudhary, the investigating officer during the course of his deposition had deposed that in furtherance of investigations, a letter dated 24.03.2004 Ex.PW.16/A was sent to DGS&D calling for certain records from the Registration Section. In response to said letter, CBI had received the record from DGS&D.
293. PW12 Sh.S.K.Pandey, posted in the Registration Branch of DGS&D, appeared and deposed that he on 26.03.2004 vide his letter dated 26.03.2004 Ex.PW.12/1 had forwarded following two files, which were in his custody to Director Vigilance ie.
(a) File No.DGS&D/REGN./ENL/03/F1097 pertaining to M/s Frost International Kanpur and ;
(b) File No.DGS&D/REGN./ENL/03/F1067 pertaining to M/s Frost International Kanpur.
294. PW13 Sh.N.Shiva Rama Krishnan, posted as Deputy Director (Vigilance) with DGS&D deposed that he after C.C.No: 16 / 2011 Page No.131 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
receipt of above files from Registration Section had sent them to CBI, along with his letter Ex.PW.13/A.
295. From this deposition of PW16, PW12 and PW13 to which there is no opposition, as nothing on this aspect is put to these witnesses during this cross examination, it is evident that there were more than one file, pertaining to M/s Frost International with DGS&D. As per deposition of PW12, it is evident that two of these files of this firm which were in his custody in the Registration Section were forwarded by him to CBI, pursuant to letter Ex.PW.16/A of CBI.
296. Perusal of the recovery memo Ex.PW.3/9, which was challenged by Ld.Defence Counsel reveals that the file number of the file pertaining to M/s Frost International, recovered from room of accused M.M.Dubey on the date of trap ie. 22.01.2004 is different. The said file number being File No.DGS&D/REGN./ENL/03/F1098.
C.C.No: 16 / 2011 Page No.132 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
297. It is thus clear that the file which accused Roshan Lal on the date of incident ie.22.01.2004, took with him from Registration section to the room of accused M.M.Dubey, while accompanying the complainant of M/s Frost International, which he also brought back, was a different file from the one which was recovered from the room of accused M.M.Dubey vide recovery memo Ex.PW.3/9. The said file which accused Roshan Lal carried back with him to the Registration Section was handed over to CBI subsequently by PW13 vide letter Ex.PW.13/A pursuant to requisition Ex.PW.16/A.
298. Thus, there is no contradiction between the recovery memo Ex.PW.3/9 and the post trap proceedings Ex.PW.1/4 as claimed by Ld.Defence Counsel.
299. The situation which now emerges from the above is that though the file pertaining to M/s Star Micronics Devices Ex.PW.2/1 was cleared by accused J.M.Nayyar, the Assistant, Roshan Lal, the Section Officer and accused M.M.Dubey, the Deputy Director, who had also signed the registration certificate Ex.PW.2/2. C.C.No: 16 / 2011 Page No.133 of 148
In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
But, instead of sending the file back, as he should have done in the normal course of business as deposed by PW4 Rajeev Mahendroo, he retained the same in his office, from where it was recovered on 22.01.2004 for obvious reasons.
300. All the three accused persons acting in concert with each other, forced the complainant to pay them illegal gratification. As per evidence which has come up on record, complainant lodged complaint Ex.PW.1/1 and trap was laid, during which all the three accused persons, through their conduct and spoken words, demanded and accepted "illegal gratification" by abusing their official position.
301. The demand of bribe need not be in so many words as it is a matter of common knowledge that accused indulging in it camouflage their words. In the present case, from the words spoken by the complainant as per the deposition of PW3, while handing over Rs.5,000/ for accused M.M.Dubey to accused Roshan Lal, which he inturn gave to accused M.M.Dubey "hum itne case lekar C.C.No: 16 / 2011 Page No.134 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
aate hai.... kuch consession kar dijiye..." and the response from accused M.M.Dubey "mat leke aaiye..", while accepting bribe, are sufficient to infer that there was a specific demand from accused Man Mohan Dubey who made it from the complainant abusing his official position to extract the illegal gratification.
302. Similarly, the other two accused had also demanded bribe from the complainant which is established on the basis of deposition of PW1, PW3, PW17 read with verification report Ex.PW.1/2.
303. This was done by the accused for clearance of the file Ex.PW.2/1 and for issuance of certification Ex.PW.2/2 which infact was ready on 20.01.2004 but was withheld only for the purposes of forcing the complainant to pay bribe. This registration certificate as per deposition of PW4 who narrated the ordinary course of procedure, should have been sent immediately. But that was not to be.
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304. In view of above, I am of the opinion that the precedents relied upon by Ld.Defence Counsels ie. Shanti Lal's Case (supra), Suraj Mal's Case (supra), P.K.Gupta's Case (supra), C.M.Girish Babu's Case (supra) and Banarasi Dass's Case (supra), does not apply to the facts of the present case. The principle of law laid down in these cases that for establishing an offence under section 13(1) (d) of the Act, there has to be a demand or effort on the part of receiver of bribe, though squarely applies but in those cases, evidence on record fell short of proving the demand or effort on the part of accused unlike the present case where prosecution through the cogent and consistent deposition of its witnesses has been able to bring home the charges against the accused persons.
305. Ld.Defence Counsels had tried to dent the prosecution case by raising the contention that CBI had deliberately made a departure from the normal procedure which they follow in such like cases. It was contended that in this case, the tape recording device was deliberately not used, as they wanted to falsely implicate the accused persons.
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306. The answer to this contention of Ld.Defence Counsels lies in the cross examination of PW8, PW16 and PW17. During the course of their cross examination, it has come up on record that the tape recording device on the date of incident was not available in their unit.
307. Further, it is not mandatory for the investigating agency to use tape recorder in all such cases. Non user of the same is not fatal to the entire case and does not render the trap proceedings nugatory. Use of tape recording device is not a legal requirement, which the trap laying officer was required to adopt.
308. This argument to my mind has been raised just to make an attempt to dent the prosecution case in a round about manner. The same being devoid of merits, is rejected.
309. Another point urged on behalf of the accused persons which requires consideration is that the investigations in this case has not been conducted in a fair manner. It is contended C.C.No: 16 / 2011 Page No.137 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
on behalf of accused persons that Inspector A.B.Chaudhary, himself being part of the trap team, should not be appointed as "investigating officer". It is contended by Ld.Defence Counsel, relying upon the deposition of DW1 Sh.V.K.Puri from Reception Committee, that IO should have taken the visitor's register of DGS&D in possession, to cross check and verify the claims of the complainant regarding his visits to the office of DGS&D and also to verify as to whether PW17 SI Arun Rawat along with complainant had or had not visited DGS&D for verification of the complaint regarding demand of bribe.
310. I have considered the submissions advanced. I have also perused the cross examination of PW1, PW3, PW5, PW8, PW16 and PW17 conducted by Ld.Defence Counsels on the aspects of entry in the visitor's register and for the purposes of making an entry pass. I have also perused the testimony of DW1 V.K.Puri examined on behalf of accused Man Mohan Dubey.
311. Though Ld.Defence Counsels on the aspect of making an entry in the visitor's register had cross examined the C.C.No: 16 / 2011 Page No.138 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
prosecution witnesses in detail, but to my mind, their argument that IO should have taken the visitor's register in possession to cross check the visits of the complainant and members of the trap team to the office of DGS&D, pales into insignificance, in view of the testimony of their own witness ie. Sh.V.K.Puri, examined as DW1.
312. This witness had brought the visitor's register and proved the relevant entries from 20.01.2004 and 21.01.2004 of the same as Ex.DW.1/A and Ex.DW.1/B. However during the course of his cross examination conducted by Ld.PP for CBI, this witness deposed that any person visiting the office of DGS&D is not asked to produce his identity. He further deposed that pass is issued in the name disclosed by the visitor and even if visitor gives his initials only, he is not asked to furnish his full name or address.
313. In view of this fact, there being no authenticity which is being ensured by the Reception Committee at the reception counter of DGS&D with respect to entries in the visitor's register. The same even if taken into possession or produced in court during C.C.No: 16 / 2011 Page No.139 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
proceedings, could not have been used for the purposes of any verification, as the same itself being not an authentic document.
314. Further, the question raised by Ld.Defence Counsel regarding appointment of Inspector A.B.Chaudhary as investigating officer despite his being member of the trap team is answered by PW16 and 17 during their cross examination. It was deposed that as the complaint was with respect to three persons, therefore, all the officers of their unit were involved with the trap team, so there was no other option, but to appoint one of them as the investigating officer (IO).
315. On the basis of material on record, nothing has been brought to my notice, for me to infer as to whether by doing so, any prejudice was caused to any of the three accused persons. Merely because the matter was investigated by an officer who was also the member of trap team, does not lead to the only inference that investigations were not conducted in fair manner. Thus, this contention of Ld.Defence Counsels is also turned down being devoid of any merits.
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316. Next contention amongst the multifarious contentions advanced by Ld.Defence Counsels was that in the FIR, complainant had levelled allegations against four persons but CBI had adopted pick and chose policy and conducted investigations qua three accused only, for which the present charge sheet was filed.
317. The answer to this contention rests in the complaint Ex.PW.1/1 itself. FIR Ex.PW.8/A was registered on the basis of complaint Ex.PW.1/1. Complainant categorically alleged in his complaint that the other application for registration was filed by him on behalf of M/s S.V.Instruments Analytica Private Limited, wherein the dealing hand was Anil Bindal, who had demanded Rs. 3,000/, but the date of payment of bribe of said file was not finalized by the accused, as the same was still at the stage of processing and further the accused persons ie. Roshan Lal and Man Mohan Dubey, had said that the said case would be finalized only after payment of bribe in the present case.
318. Thus, the trap was laid with respect to the case of M/s Star Micronics Devices, dealt with by the present three accused C.C.No: 16 / 2011 Page No.141 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
persons, as in view of the complaint Ex.PW.1/1 and verification report Ex.PW.1/2, the date of payment of demanded bribe in the present case was finalized to be 22.01.2004 ie. the day on which the trap proceedings were conducted.
319. This has brought me to the last contention raised by Sh.R.K.Handoo, Advocate, Ld.Defence Counsel that accused Man Mohan Dubey has been falsely implicated by the complainant, as complainant was annoyed from the accused who had prevented his entry in the office of DGS&D.
320. Although PW4 Sh.Rajeev Mahendroo did admit that entry of the complainant was prevented by accused Man Mohan Dubey in the office of DGS&D. However, from the conduct of accused Man Mohan Dubey himself and from deposition of the witness produced by accused in his defence ie. DW3 Shri Krishan, DDG of DGS&D, the position which emerges, speaks otherwise.
321. DW3 Shri Krishan had deposed that complainant did visit him on 21.01.2004 to lodge protest regarding registration C.C.No: 16 / 2011 Page No.142 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
matter of a firm. He deposed that on his protest, he had called accused M.M.Dubey to his room, who then gave the necessary clarifications. DW3 went on to depose that subsequently he came to know that complainant was a tout and his entry was therefore prevented by them.
322. It is thus apparent that complainant Arun Kumar Sharma did visit DW3, the then DDG (HQ) to lodge his protest. Though as per DW3 it was on 21.01.2004 and as per complainant it was on 20.01.2004 that he visited the office of DDG. Here even if for the present context the version given by DW3 is accepted, it means that complainant did visit the office of DDG on 21.01.2004 and no one prevented him from entering there. Even accused M.M.Dubey was called by DW3 in presence of the complainant and there is nothing in the deposition of DW3, for me to infer that accused M.M.Dubey had apprised DW3 about any such directions by him, of preventing entry of the complainant in the office of DGS&D.
323. Further, DW3 deposed that subsequently when they came to know that complainant was a tout, his entry was C.C.No: 16 / 2011 Page No.143 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
prevented. This deposition of DW3 if considered can only lead to one inference, that is the entry of complainant, if at all prevented, in the office of DGS&D, must have been done after the present incident. As the trap proceedings took place on the following day itself ie. on 22.01.2004.
324. And on 22.01.2004 as well, during the trap proceedings as per the evidence on record, complainant entered the registration section of DGS&D unhindered by anyone. As per evidence on record, he had met not only accused Roshan Lal and J.M.Nayyar in registration section, but also visited the room of accused M.M.Dubey with Roshan Lal. Had this entry been prevented as claimed by accused M.M.Dubey by virtue of his own orders, then what was the reason with M.M.Dubey to entertain the complainant on said date in his own room. Further, no such written orders to this effect or directions to the Reception committee for following any such orders of preventing the entry of complainant, were placed or proved on record on behalf of accused. C.C.No: 16 / 2011 Page No.144 of 148
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325. Thus, I do not see any ground of annoyance of complainant with accused M.M.Dubey, which would have forced him to implicate the accused as claimed by defence.
326. Ld.Defence Counsels in order not to leave any stone unturned to demolish the prosecution case, contended that sanction to prosecute the accused persons was passed in a mechanical manner, so the initiation of prosecution in itself is bad.
327. I do not find any merits in this contention. Bare perusal of deposition of PW6 Sh.M.K.Anand, posted as Director, coupled with the sanction orders Ex.PW.6/A, Ex.PW.6/B and Ex.PW. 6/C, reveals that the same are speaking orders. A glance on these sanction orders clearly indicates that the sanctioning authority had gone through each and every fact and the same have been passed after application of mind and not in a mechanical manner, as claimed by the defence.
328. In conspectus of above, CBI has been able to establish on record on the basis of deposition of its witnesses that C.C.No: 16 / 2011 Page No.145 of 148 In the matter of: (C.B.I. Vs. Man Mohan Dubey & Ors.) Dated : 22.12.2012.
all the three accused being public servants had accepted illegal gratification from the complainant and further in view of the evidence, it has been able to establish that they had done, as a motive or reward, for issuance of registration certificate Ex.PW.2/2 with respect to M/s Star Micronics and thus raising statutory presumptions as well, under section 20 of the Act, necessary ingredients of Section 7 with which accused persons were charged, stands established.
329. CBI has further been able to establish on record the necessary ingredients of offence under section 13(1)(d) read with section 13(2) of the Act, that all the three accused persons being public servants had abused their official position and obtained pecuniary advantage for themselves, from the complainant.
330. CBI has further been able to establish that all the three accused persons had entered into a conspiracy with each other the object of which was to demand and extort illegal gratification from the accused for doing, what they otherwise as per the official discharge of their functions, were suppose to do. C.C.No: 16 / 2011 Page No.146 of 148
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FINAL VERDICT:
331. Having regards to the facts and circumstances and the discussions as delineated hereinabove, I am of the opinion that CBI has been able to establish the necessary ingredients of offences with which all the three accused persons were charged on 20.12.2005.
332. All the three accused persons ie. Man Mohan Dubey, Roshan Lal and J.M.Nayyar are accordingly convicted for offences punishable under section 120 B IPC read with section 7, 13(1) (d) read with 13(2) of Prevention of Corruption Act, 1988. All the three accused persons viz. Man Mohan Dubey, Roshan Lal and J.M.Nayyar are also convicted for the substantive offences under section 7 and section 13(1)(d) read with section 13(2) of Prevention of Corruption Act 1988. C.C.No: 16 / 2011 Page No.147 of 148
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333. Let all the three convicts be heard on the point of sentence.
Announced in the Open Court On the 22 Day of December, 2012.
nd (KANWALJEET ARORA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.
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