Delhi District Court
Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra & on 1 June, 2013
1
IN THE COURT OF SHRI L.K. GAUR, SPECIAL JUDGE
P.C. ACT (CBI09), CENTRAL DISTRICT,
TIS HAZARI: DELHI
CC No. 15/2011
R.C. No. 18(A)/88/CBI/ACB/ND
Central Bureau of Investigation
Versus
1. Shri Prem Kumar S/o Shri Ram Nath Kumar
Assistant, POE Office, Ministry of Labour,
Govt. of India, New Delhi
R/o H. No. 889, Sector9, Gurgaon, Haryana.
2. Shri B.K. Gupta S/o Shri Om Prakash Gupta
Lower Division Clerk, POE Office, Ministry of Labour,
Govt. of India, New Delhi.
R/o C2/51, Ashok Vihar, PhaseII,
New Delhi110052.
3. Shri Banmali Haldar S/o Tinkadi Haldar
Lower Division Clerk, POE Office, Ministry of Labour,
Govt. of India, New Delhi
R/o Z932, Timarpur, Delhi110054.
C.C. No. 15/11 1 of 156
2
4. Shri Kishori Lal S/o Shri Neeru Ram
Lower Division Clerk, POE Office, Ministry of Labour,
Govt. of India, New Delhi
R/o 1713, Sector3, Pushp Vihar,
New Delhi110017,
5. Shri Om Prakash Sharma S/o Ramesh Chander,
Lower Division Clerk, POE Office, Ministry of Labour,
Govt. of India, New Delhi
R/o House No. 1896, Lodhi Road Complex,
New Delhi110003,
6. Shri Naresh Kumar Gupta S/o Late Sh. Manohar Lal
Upper Division Clerk, POE Office, Ministry of Labour,
Govt. of India, New Delhi
H1/106107, Sector11, Rohini,
Delhi110008.
7. Shri J.P. Sharma S/o Shri Chunni Lal Sharma,
Upper Division Clerk, POE Office, Ministry of Labour,
Govt. of India, New Delhi
R/O BD801, Sarojini Nagar, New Delhi110023.
8. Shri Rajender Rai S/o Shri Gulshan Rai,
Prop. of M/s Swift Travels International,
23/90, Connaught Circus, New Delhi.
R/o S53, Panchseel Park, New Delhi.
C.C. No. 15/11 2 of 156
3
9. Shri Tajinder Singh Duggal S/o Late Shri Bhagat Singh
R/o 80/63B, Malviya Nagar, New Delhi
Partner of M/s T.S. Duggal Enterprises,
C1 / 13, Green Park Extn., Veena Areade,
2nd Floor, New Delhi (Proceedings underway
for declaring Proclaimed
Offender. )
10. Shri Nand Arora S/o Late Sh. C.D. Arora,
R/o 1/13, Sunder Vihar,
Outer Ring Road, New Delhi
And 127, Gali Meer Khan,
Darya Ganj, New Delhi. (Proclaimed offender)
Date of Institution : 22.09.1989
Date of reserving Judgment : 25.04.2013
Date of Pronouncement : 01.06.2013
JUDGEMENT
Preliminary This judgment is only in respect of the Accused No. 1 to 8 above. Accused Nand Arora is proclaimed offender. Accused T. S. Duggal was once declared proclaimed offender but then he had started appearing in the court. He continued to appear/represented C.C. No. 15/11 3 of 156 4 through counsel till prosecution evidence was closed. He had stopped appearing in the Court from the stage the case was fixed for recording the statement of the accused persons under section 313 of the Code of Criminal Procedure, 1973. The proceedings are underway for declaring him proclaimed offender. Accused Charge sheeted for
2. Charge sheet was filed in this case against the accused persons stating, interalia, that all the accused herein have committed an offence u/s 120B read with section 161 read with Section 165A IPC and section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. It was further alleged that accused B. K. Gupta and Prem Kumar have prima facie committed substantive offences u/s 161 IPC and u/s 165(1)A IPC. It was also alleged that all the public servants in this case have committed offences under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947. And all the accused travel agents have committed substantive offence u/s 165A IPC.
C.C. No. 15/11 4 of 156 5 Introduction of Accused persons
3. Accused No. 1 Shri Prem Kumar was working as Assistant in the office of Protectorate of Emigrants (POE) under Ministry of Labour, Government of India. Accused No. 2 Shri B. K. Gupta, Accused No. 3 Shri Banmali Haldar, Accused No. 4 Shri Kishori Lal, and Accused No. 5 Shri Om Parkash Sharma had been working as Lower Division Clerks in the same office. Accused No. 6 Shri Naresh Kumar Gupta and Accused No. 7 Shri J. P. Sharma had been working as Upper Division Clerks also in the same office. Accused No. 8 Sh. Rajinder Rai Proprietor of M/s Swift Travels International, Accused No. 9 Shri Tajender Singh Duggal, Partner of M/s T. S. Duggal Enterprises and Accused No. 10 Shri Nand Arora are the travel agents. One Shri Vasudev Sahjwani travel agent had made a confessional statement under section 164 Cr.P.C. during the trial; he was granted pardon and accordingly was made Approver in this case. Needless to say that for this reason he has not been charge sheeted. There is one more person, namely, Sh. Bhim Singh, who had been working as Peon in the office, has been kept in column No. 2. He has not been charge sheeted for the reason that during the investigation C.C. No. 15/11 5 of 156 6 there was only recovery of Rs. 100/ made from him and there was nothing more to show his involvement in this case. Facts in brief
4. This case is unusual in the sense that the complainant in this case is actually the senior most officer in the office of Protector of Emigrants who had made a complaint against his own staff for indulging in corruption and so much so pressurizing him to accept the part of the bribe which was being collected by them from the travel agents. In order to set up the back ground of the case I feel it will be appropriate to reproduce the complaint itself submitted by him to the Superintendent of Police, CBI, Delhi. The same reads as under: "The Supdt. of Police, CBI, Delhi Branch Dear Sir, I am posted as Protector of Emigrants, Delhi and took charge on the evening of April 8, 1988. My first working day was April 11 (Monday). My office deals with workers migrating for overseas tourism, business, Haj etc. For all cases brought to the office by Recruiting Agents or C.C. No. 15/11 6 of 156 7 Travel Agents, the staff illegally charges money from the Agents. The daily collection varies from Rs. 10,000/ to Rs. 30,000/ depending on the cases cleared that day. Out of this collection, Shri Prem Kumar Assistant and Shri B.K. Gupta, LDC have been offering me my share. I have been refusing to take this illegal gratification on the one pretext or the other. I have also requested them to stop this practice of taking such illegal money. But, the two above mentioned officials are still adamant that I should accept the money and threatened that in case I do not accept the money they would stop processing cases and thereby stop the work. They further told me yesterday that in case I do no accept the entire amount by today (April 21), no cases would be cleared by them. Both the above officials would be coming to my room at about 6.00p.m., when the office is about to close to offer me the bribe money of about Rs. 25,000/. I do not want to accept the bribe money. Please take necessary action against these persons.
Yours faithfully, Sd/ AMIT DASGUPTA 21.04.1988"
5. On the basis of the above complaint an FIR was registered. A raiding party was organized, which was joined by two independent witnesses, raid was conducted at the office, where allegedly share of C.C. No. 15/11 7 of 156 8 the collection of bribe collected by the staff, given by the accused No. 1 Shri Prem Kumar and accused No. 2 Shri B. K. Gupta to the complainant amounting to Rs. 25,700/ was recovered from the briefcase of the complainant and the said accused had also been apprehended in the room of the complainant. What had transpired in the room had been recorded in two micro cassettes simultaneously fitted in two cassette recorders, which the complainant had been handed in his room by an independent witness Sh. Virender Tyagi, who had visited his room with an officer of CBI Sh. Peshin posing as his cousin, as decided in the pretrap proceedings, including the conversation which took place in his room with three travel agents viz. S/Sh. T.S. Duggal of M/s T.S. Duggal Enterprises, Rajinder Rai of M/s Swift Travel International, Vasudev Sahjwani of M/s Pioneer International and another travel agent by the name of Sh. Nand Arora and the Accused Sh. B. Haldar, Sh. Prem Kumar and Sh. B.K. Gupta for settling the rate at which illegal gratification was to be paid to the staff. Recording of this conversation also showed that these travel agents had formed a syndicate to offer bribe to the staff of POE. As per the chargesheet filed "The tape recorded conversation shows that there was syndicate of above named travel agents to offer C.C. No. 15/11 8 of 156 9 the illegal gratification to the POE staff. It has come in the tape recorded conversation that a sum of Rs. 27,000/ was offered by the said syndicate of travel agents to accused B. K. Gupta and Prem Kumar on the date of the trap of which Rs. 25,700/ was recovered from brief case of the compliant referred to above and was offered to the complainant by accused B. K. Gupta and Prem Kumar." The disclosure statements of Shri Prem Kumar and Shri B.K. Gupta had been recorded who had disclosed about the collection of bribe illegally from the travel agents and their distribution among the staff members. On this disclosure the other members of the staff were also interrogated and their disclosure statements were recorded in the office itself except that of accused Shri J.P. Sharma who is stated to have left the office before the raid. On the pointing out of the accused the recoveries were made at their instance from the office itself in the following manner:
1. Rs. 3,000/ at the instance of Sh. Prem Kumar from the rack.
2. Rs. 4,200/ at the instance of S/Shri Banmali Haldar and B.K. Gupta from the folder.
3. Rs. 11,600/ at the instance of Shri N.K. Gupta from the rack.
C.C. No. 15/11 9 of 156 10
4. Rs. 3,000/ at the instance of Shri Kishori Lal from the rack behind the almirah.
5.Rs. 5,100/ at the instance of Shri O.P. Sharma from the pant pocket.
(Reproduced from Chargesheet)
6. For linking the Accused Sh. B.K. Gupta and Sh. Prem Kumar chance finger prints were also lifted from the two envelope in which the money was handed over to the Complainant by them but they did not match with the finger prints of these Accused. Examination of witnesses PW1
7. Witness PW1 Dr. A.K. Chanda, who was working as Dy. Secretary in the Ministry of Labour, Government of India had deposed that there was a request received for granting sanction for the prosecution of Sh. Prem Kumar Assistant, Sh. B.K. Gupta, Sh. Banmali Haldar, Sh. Kishori Lal, Sh. O. P. Sharma, all LDCs and Shri N. K. Gupta and Sh. J. P. Sharma all UDCs under the provisions of the Prevention of Corruption Act. Except for Shri Prem Kumar, C.C. No. 15/11 10 of 156 11 Assistant he was competent to grant sanction for the prosecution of the remaining. After going through the record he had accorded sanction Ex. PW1/A for their prosecution. As the competent authority for removal of accused Prem Kumar was the President of India, his file was put up before the Labour Minister through proper channel and after the sanction had been given he had authenticated the same. He had identified the said order in the Court Ex. PW1/B bearing his signatures.
PW2
8. Witness PW2 Shri Baldev Raj is one of the independent witnesses who had joined in the investigation of this case. He had deposed that on 21.04.1988 when he was posted as Assistant Director(OL), Directorate General of Works, CPWD, on the instructions of the Vigilance Section he had joined in the investigation with CBI. He had deposed about being briefed in the pretrap proceedings about the case and had also stated about how they had reached the office of Protector of Emigrants. According to him as the CBI team had reached, every one in the office started running here C.C. No. 15/11 11 of 156 12 and there. CBI had started the search operation. People in the office had started taking out money from their pockets and keeping the same at places like tables, jugs, and files and had also thrown money in the Record Room. CBI had started collecting the money. About Rs. 1,00,000/ had been found by CBI team. All the proceedings were reduced in writing. He also had deposed that he had signed the currency notes recovered. The witness had not supported the case of the prosecution as stated and, therefore, had been crossexamined by the Ld. PP for CBI. In the crossexamination this witness had admitted his signatures on the recovery memo Ex. PW2/A, which according to the case of the prosecution was prepared with regard to the money recovered from the briefcase of the complainant amounting Rs. 25,700/, which was stated to be share of the complainant from 1.04.1988 till that date out of the daily collection of bribery given to him by accused Sh. B.K. Gupta and Sh. Prem Kumar. He had also admitted his signatures on the recovery memo Ex. PW2/B with regard to the recovery of currency notes of Rs. 3,000/ at the instance of accused Prem Kumar from his rack, which were kept wrapped in a pamphlet. He had also identified his signatures on Ex. PW2/B1 Annexure 2 Ex. PW2/B wherein the details of the currency C.C. No. 15/11 12 of 156 13 notes recovered had been mentioned. Similarly, he had identified his signatures on recovery memo Ex. PW2/C with regard to recovery of Rs. 5100/ produced by accused O.P. Sharma after taking out from his pocket; Ex. PW2/C1 annexure to Ex PW2/C wherein the details of the currency notes produced by O.P. Sharma had been mentioned; Ex. PW2/D recovery memo relating to the recovery made of Rs. 11,600/ at the instance of Shri N.K. Gupta from his rack and also on the annexure Ex. PW2/D1 wherein the details of these currency notes have been given; Ex. PW2/E relating to the recovery of Rs. 3,000/ at the instance of the accused Shri Kishori Lal kept behind the almirahs and Ex. PW2/E1 annexure to the said recovery giving the details of the currency notes so recovered; Ex. PW2/F is the disclosure Memo prepared on the basis of disclosure made by Shri B.K. Gupta with regard to having kept his share of Rs. 2100/ in the folder of files, which he could get recovered from a rack behind the almirahs of office; Ex. PW2/F3 pointing out and recovery memo whereby the accused B.K. Gupta and accused B. Haldar got recovered Rs. 4200/ from the folders kept in the racks in the office and also annexure to the said memo Ex. PW2/F4 wherein the numbers of the currency notes recovered had been mentioned.
C.C. No. 15/11 13 of 156 14 (There appears to be some typographical mistake with regard to the exhibit numbers mentioned in the statement of this witness).
9. This witness had further identified his signatures on the disclosure statements recorded of Shri Kishori Lal (Ex. PW2/G); another disclosure statement of Shri B.K. Gupta (Ex. PW2/G1); disclosure statement of Shri Prem Kumar (Ex. PW2/G2) and disclosure statement of Shri N.K. Gupta (Ex. PW2/G3). There appears to be some typographical error committed in writing the exhibit number in the statement of the witness. 10, He had also identified his signatures on Personal search memo of Shri Prem Kumar (Ex. PW2/H), personal search memo of accused Shri B. K. Gupta (Ex. PW2/H1), another personal search memo of accused Shri B.K. Gupta (Ex. PW2/H2), personal search memo of accused Shri Kishori Lal (Ex. PW2/H3); personal search memo of accused Shri B. Haldar (Ex. PW2/H4); personal search memo of accused Shri N.K. Gupta (Ex.PW2/H5) and personal search memo of accused Shri O.P. Sharma (Ex. PW2/H6).
C.C. No. 15/11 14 of 156 15
11. He had also identified his signatures on Ex. PW2/J handing over memo prepared during the pre trap proceedings. According to the case of the prosecution there was house search conducted at the house of accused B. Haldar. This witness had identified his signatures on Ex. PW2/K the house search memo relating to the search of house of the accused Shri B. Haldar. PW3
12. PW3 Shri Virender Tyagi is another independent witness who had joined the investigation with CBI. This witness had deposed that on 21.04.1988 he was directed by his senior officers to report to CBI office and accordingly he had reached the CBI office where he had met Mr. R.K. Joshi (Trap Laying Officer) and one Sikh gentleman (Dy S.P. Darshan Singh). He was introduced to S.P. CBI. Mr. Joshi and the said sikh gentleman had briefed him that they were go to one office where the employees working in the office were forcing their officer (Head of the Department) to accept money and that in respect thereof a complaint had been lodged by the said office POE (Protector of Emigrants) who was also present in the office. The POE C.C. No. 15/11 15 of 156 16 was sent back to his office. Mr. Joshi had explained the planning of the operation. There was a cassette played before him to show that it was blank. He was instructed to act as a brother of POE to tell him during the operation that the daughter of POE was not well. He was also directed to fix the tape recorder in the office of POE and also to ensure that there was no cash lying there.
13. The CBI trap team had thereafter left for Jaisalmer House (Office of Protectorate of Emigrants). As he had entered the office room of POE the cassette recorder was taken from him by the POE and he had kept the same in his drawer. As there were some employees present in the room of POE, therefore, he could not completely search his office. A lady was sent to the office of POE pretending to be a person wanting emigration. He came out of the office and the trap team had taken suitable positions. Some signal was prefixed for entering in the office of POE indicating that transaction had taken place. Since the team members had taken position in a scattered manner, he could not see the signal but when he saw some members rushing towards the room of POE, he had also accompanied them. According to him the signal was given by C.C. No. 15/11 16 of 156 17 trap party members who were near the office room of the POE. Mr. Joshi had taken the tape recorder from POE and played the same but the voice was not clear. He, Mr. Joshi and the Sikh gentleman and one Hindi Officer had sat in the hall of the office and other members of the trap team had started searching the office and they started bringing the recovered money, which was placed on the table where they were sitting. According to this witness during this period of time someone from the house of Mr. Haldar had also came to the office. He was also made to sit there. Thereafter he and some other persons had visited the house of Mr. Haldar. During the proceedings POE had produced two packets of GC notes telling CBI officials that the same were offered to him by the employees of POE. At the pointing out of the employees of POE different amounts were recovered from files / racks.
14. This witness was crossexamined by Ld. PP for CBI as he was stated to be resiling from his earlier statement made to CBI. In the crossexamination by the Ld. PP for CBI he was confronted with many of the portions of his previous statement made to CBI Ex. PW3/A. This witness in the crossexamination had admitted his C.C. No. 15/11 17 of 156 18 signatures on the recovery memo Ex. PW2/A, recovery memos Ex. PW2/B and B1, disclosure statements / pointing out memos / memos prepared mentioning the numbers of currency notes recovered at the instance of different accused persons viz. Ex. PW2/G1, PW2/F, Ex. PW2/C, Ex PW2/C1, Ex. PW2/D, Ex. PW2/D1, Ex. PW2/E, Ex. PW2/E1, Ex. PW2/G, Ex. PW2/G2, Ex. PW2/G3, PW2/F3, PW2/F4 and PE3/B. He had also admitted his signatures on the personal search memos of the accused persons Ex. PW2/H, Ex. PW2/H1 to H6. He had further admitted his signatures on Ex. PW2/J, the memo prepared with regard to the proceedings conducted at the CBI office and memo Ex. PW3/C prepared in respect of sealing of the cassette in the office of POE. This witness had stated that he had gone to the CFSL Lab and the cassette was played before him and a copy of the same was also prepared in his presence. He, however, did not remember if the transcript of the same was also prepared in his presence.
15. This witness after the crossexamination on behalf of the accused persons was over was further allowed to be reexamined. In the reexamination he had identified his signatures on the slip pasted C.C. No. 15/11 18 of 156 19 in the brief case Ex. PW3/X1, file folders Ex. PW3/X3 and Ex. PW3/X4 and also a stamp pad Ex. PW3/X20.
PW4
16. Witness PW4 Sh. Vasudev Sahjwani, is the travel agent, who had turned Approver during the investigation. He had deposed that he was a running a Travel Agency and he used to visit POE in connection with his work. He used to interact with the staff, which was deployed on rotation basis. He had stated that during the time of the raid the concerned staff i.e. Shri B.K. Gupta and Mr. Haldar. He also used to "interact" with other staff members Shri Prem Kumar and Shri N.K. Gupta. He had explained that by "interact" he meant that these officials used to demand illegal gratification from him for the work to be done in that office and he was under compulsion to meet their demands. He had identified the accused, namely, Mr. B.K. Gupta, Mr. Haldar, Mr. Om Prakash, Mr. Kishore Lal and Shri J.P. Sharma present in the Court. The remaining accused persons were also identified by him as the staff of POE though not by name. He had disclosed that these officials used to charge from him Rs. 50 to Rs.
C.C. No. 15/11 19 of 156 20 2,000/ and this practice was going on even prior to 1986. Earlier he used to resist but this used to result in his work not being done. He thus had no option but to either close his business or to do as the others were doing. On his visit to the office of POE he used to meet other travel agents also, namely, Shri Nand Arora, Shri T.S. Duggal, Shri Rajender Rai, Shri Satender, Shri Kanahiya, Shri Vijay Verma etc. According to him the main persons who used to take money from him were Shri B.K. Gupta and Mr. Haldar. He had also stated that Shri Amit Dass Gupta, POE was an upright and honest person but despite the fact that he never accepted any money still the money used to be taken from him by above named persons.
17. He had added that whenever the demands were high he used to make complaints to the Head Of the Department ( POE), who used to tell me to pay them as per the demand and report back to him the quantum of money paid by him. On 20.04.1988 the staff had stopped working on the pretext that POE was not accepting the share of the booty and they had to sort out the matter internally before resuming the work.
C.C. No. 15/11 20 of 156 21
18. He had further deposed as to how he was harassed by being repeatedly called and his having protested that they had no business 1 to ask for money as all the conditions laid down for suspension as 2 well as ECNR had fully been met with as per the guidelines written on the notice board of POE. During the course of the discussion which was taking place in the chamber of POE between travel agents and complainant POE accused B. K Gupta, Prem Kumar and Haldar were also present and they had said that the bribe was the only criteria which was followed in their Department. At this point of time his colleagues Sh. T.S Duggal, Nand Arora and Mr. Rajinder Rai were also present. For the job of 20 and 21 of April 1988 they were to pay an amount of Rs.37,000/ to the accused persons. They had paid Rs. 27, 000/ to B. K Gupta and Haldar on 21.4.1988 as they were short of Rs.10, 000/ and they had promised to pay the balance of Rs.10,000/ next day. This witness has also referred to a cassette played by CBI wherein heated discussion was taking place for rate of payment of 1 Categories of persons whose passports have been endorsed as "Emigration Check Required" ( ECR), if intended to travel abroad for non-employment purposes, are required to obtain 'suspension' from the requirement of obtaining emigration clearance. 2 Section 22 of the Emigration Act, 1983 provides that no citizen shall migrate unless he obtains emigration clearance from Protector of Emigrants. However, with a view to facilitating the movement of workers, seventeen categories of persons have been exempted from this requirement and have been placed under "
Emigration Check Not Required" ( ECNR) category.
( Taken from - www.namasthenri.com ) C.C. No. 15/11 21 of 156 22 bribe in the chamber of the complainant where he was present along with other colleagues had been recorded.
19. During the course of his testimony the order of Sh. Dinesh Dayal, the then M.M dated 6.3.1989 Ex.PW4/A marking the application filed by Dy.S.P, CBI for recording the statement of this witness under Section 164 Cr.P.C, proceedings related to the recording of the statement of the witness before Sh. S.M Gupta the then M.M Ex.PW4/B, orders passed dated 20.4.1989 by Sh. Dinesh Dayal the then Ld. M.M on the application of Dy. S.P, CBI for granting pardon under Section 306 Cr.P.C Ex.PW4/C granting time to the witness to consider his decision to become an approver in the case and also the order passed on the said application for granting pardon dated 22.4.1989 Ex.PW4/D, had been put to him which he had admitted.
20. The cassette containing the recordings of the spot in the micro cassette Ex.P8 were played in the Court in the presence of the witness. He had identified some of the voices in the said C.C. No. 15/11 22 of 156 23 conversation for some he had commented that they were not audible. What was recorded in the audio cassette was also compared with the transcript thereof.
PW5
21. Witness PW5 Shri Amit Dass Gupta is the complainant in this case. His testimony can be broadly divided into five parts.
22. In the first part he had deposed about as to how he was being offered bribe by his subordinate and was being pressurized to accept the same and threatened to stop the work in case he does not accept the same. He had identified the complaint Ex. PW5/A (reproduced in the beginning) which he had lodged against his own staff narrating as to how he was being pressurized to accept the part of the bribe which they had been collecting from the travel agents.
23. In the second part he had deposed that as to how he had participated in the pretrap proceedings after he had reported the matter to the CBI wherein two independent witnesses had also joined C.C. No. 15/11 23 of 156 24 in, two blank micro cassettes were fitted in two micro cassette recorders and suitable instructions had been given to him with regard to the trap being organized for apprehending his staff and how entire operation was to be carried out.
24. In the third part of his testimony he deposed as to how he had played his part in apprehending the accused as per the instructions given in the pretrap proceedings. He had stated that as to how he had placed the cassette recorders under the top of his table concealed and putting them in the pause mode. Mr. Peshin one of the officer of CBI had came to his room and had ensured that there is no money lying around. Mr. Peshin had also checked the brief case to ensure that it was empty where he was supposed to keep the money given to him by the staff. He had then narrated that how the travel agents had came into his room who were being pressurized by the staff to pay bribe "as speed money" to get their normal work done and also informed him that staff was threatening to stop the work. During this period there were also some arguments taking place between the travel agents and some of the staff members and in particular with C.C. No. 15/11 24 of 156 25 one of the accused Mr. Haldar on the question of at what rate they were to be "paid". During this period he had put the tape recorder in the recording mode. After the travel agents had left the accused Prem Kumar, Shri B.K. Gupta and Shri Haldar had came in carrying two envelopes and handed over the same to him. He had closed the doors and drawn curtains which indicated that the transaction was over as per the instructions given during the pre trap proceedings. These envelopes were kept in the brief case.
25. In the fourth part of his testimony he had deposed that as to how CBI officers had came in, and as to how the money was recovered from the brief case thereafter accused Prem Kumar was interrogated who had made a disclosure statement that they had received the said money from the travel agents and there were other also in the staff who had also received the money from them. This had led to the search of the office and recovery of money at the instance of different accused persons. This witness had identified the signatures on the memo Ex. PW2/A prepared in respect of the proceedings conducted in his room; search memo Ex. PW3/D; Ex. PW2/A wherein the details of the currency notes had been recorded C.C. No. 15/11 25 of 156 26 and he had also identified the currency notes Ex. P7/1 to 257 recovered from the brief case which were kept in the envelopes offered to him as the bribe.
26. In the fifth part of his testimony he had identified the voices of persons engaged in the conversation on hearing the micro cassette played in his presence in Court with reference to the transcript. PW6
27. Witness PW6 Shri R.K. Joshi is the Trap Laying Officer. He had deposed that on 21.04.1988 he was called to his office by Shri Amit Verma, Dy. S.P., CBI, ACB and introduced him to the complainant and further gave him the copy of the FIR Ex. PW6/A with the direction to investigate this case. He had after interacting with the complainant decided to lay a trap in the evening. Two independent witnesses were requisitioned and a raiding party was organized by him of himself, Shri Darshan Singh, DSP, Sh. S.K. Peshin, Shri R.S. Saroha, Shri R.S. Manku, all Inspectors and other lower staff including SI Bazaullah and Lady Const. Zaheda Quareshi.
C.C. No. 15/11 26 of 156 27 The complainant was directed to report to the office at 2.00 p.m. and further member of the raiding party were also accordingly informed as to the decision of raiding the office in the evening.
28. This witness had narrated further in this testimony that as to how the members of the raiding party and the independent witnesses had assembled in his office at 2.00 p.m. and as to how the entire plan was discussed and suitable instructions were given to every one and it was decided that although it may not be possible to keep one shadow witness with the complainant at the time of transaction but still one of the independent witness Shri Virender Tyagi was suitably briefed to remain present without causing any suspicion. Two micro cassette recorders and two blank cassettes were also arranged. They were played before the independent witnesses to show that they did not have the pre recorded material and handed over to Shri Virender Tyagi for further handing over the same to the complainant in the evening at about 5.00 p.m. It was decided when the windows of the office room are closed and curtains are drawn it would indicate that the transaction of the bribe money has been made. The C.C. No. 15/11 27 of 156 28 instructions were given to SI Bajaullaha and Lady Const. Zaheeda Quareshi that they would go the office room of the complainant in case he permits them to enter, this would also be an indication that bribe money had been given and thereafter SI Bazaullaha would come out of the room and would give signal to the waiting raiding party members by scratching his head with his right hand to convey that the transaction of the bribe money is over. Personal searches of all the members of the trap party, witnesses and complainant were taken. No one was allowed to keep anything except their identity cards. The complainant was allowed to keep some medicines. Shri S.K. Peshin Inspector was directed to go alonwith Shri Virender Tyagi in the evening to the room of the complainant when the tape recorders were to be handed over to the complainant by Shri Virender Tyagi. Shri Virender Tyagi was also directed to take office search of the complainant to ensure that it was clean and there was no money in the office room of the complainant or with the complainant. All these facts were recorded in the memo related to pre trap proceedings Ex. PW2/J. This witness had further deposed that at 4.00 p.m. the complainant was allowed to go to his office. At 4.30 p.m. all the raiding party members had left for the office of POE. At C.C. No. 15/11 28 of 156 29 about 4.45 p.m. when they had reached near Taj Man Singh Hotel they had got down from their two vehicles in which they were traveling. The vehicles were left with their drivers near the hotel. He along with other trap party members and the independent witnesses had reached the office of POE in groups of one or two persons. Shri S.K. Peshin and Shri Virender Tyagi were sent ahead to meet the complainant in his office, complete the proceedings as instructed in the pre trap proceedings before the transaction of the bribe money and Shri Virender Tyagi was also directed to hand over the micro cassette recorders to the complainant and Shri S.K. Peshin was directed to take the search of the room, table and person of Shri Amit Dass Gupta to ensure that he did not have any money. Suitable positions were taken by the members of the raiding party around the office of POE. At about 5.00 p.m. Shri S.K. Peshin and Shri Virender Tyagi had gone inside the room of the complainant and came out from there after about 15 minutes. The members of the party had kept watch on the widows of the office room of the complainant and the position / movement of SI Bajaullaha and Lady Const. Zaheeda Quareshi. AT about 6.00 p.m. SI Bazaullaha and Zaheeda Quareshi had entered in the office of the complainant and after about 45 C.C. No. 15/11 29 of 156 30 minutes SI Bajaullaha came out to give signal already decided. On receiving the signal he had rushed to the room of the complainant and he was followed by DSP Darshan Singh and other members of the party.
29. This witness had further deposed that after he had entered the office of the complainant the complainant had asked him as to where he was to go in Hindi and he had told him that he wanted to go abroad and during this conversation he had confirmed by making gestures that the transaction of the bribe money has already taken place. At this stage on being asked the complainant had informed that accused Shri Prem Kumar and Shri B.K. Gupta who were sitting in his room had given him Rs. 25,700/ in two envelopes. After this he had questioned both Shri Prem Kumar and Shri B.K. Gupta and they admitted having given bribe to the complainant. They were thereafter caught by him as well as by DSP Darsharn Singh and the money was recovered from the brief case of the complainant. On further questioning they had informed that they had been collecting the bribe money from the travel agents and others for putting the stamp of Emigration clearance. The complainant had also informed him that C.C. No. 15/11 30 of 156 31 the money offered to him as the bribe was his share from 11.04.1988 to 21.04.1988 as informed to him by these accused persons.
30. During interrogation the accused Prem Kumar had informed that other collections made during the day had also been distributed amongst him, accused N.K. Gupta, accused O.P. Sharma, accused J.P. Sharma, accused B.K. Gupta, accused Kishori Lal and accused Banmali Haldar. On this information these named accused were also called and questioned. They too admitted having accepted their share of bribe money collected during the day from the travel agents. Their disclosure statements were recorded and monies were recovered at their pointing out.
31. During his testimony he had deposed about the recovery memo Ex. PW2/A showing the recovery of Rs. 25,700/ from the briefcase of the complainant wherein the description of the money recovered had also been given and also identified the currency notes Ex. P7/1 to 257. As per his testimony the briefcase, two envelopes, currency note, micro cassette recorders and micro cassettes were all taken into possession. The micro cassettes were sealed and the seal after use was handed over to independent witness Shri Baldev Raj.
C.C. No. 15/11 31 of 156 32
32. He had identified in his testimony disclosure cum recovery memo relating to the accused O.P. Sharma Ex. PW2/C with its annexure wherein the details of currency notes recovered had been given; pointing out and recovery memo relating to the accused Prem Kumar Ex. PW2/D as also memo Ex. PW2/B1 attached with it wherein the details of currency notes had been given recovered at the instance of accused Prem Kumar; pointing out and recovery memo of accused N.K. Gupta Ex. PW2/D and also the memo annexed with it Ex PW2/D1 wherein the details of the money had been mentioned recovered at the instance of N.K. Gupta; pointing out and recovery memo related to the accused Banmali Haldar and B.K. Gupta Ex. PW2/F3 and also the memo annexed with it Ex. PW2/F4 where the details of the money recovered at his instance had been mentioned and Pointing out and recovery memo related to the accused Kishori Lal Ex. PW2/E and also the memo annexed with it Ex. PW2/E1 wherein the details of the money recovered at his instance had been given.
33. This witness had further identified the currency notes collectively Ex. P4 recovered from accused O.P. Sharma, which were C.C. No. 15/11 32 of 156 33 recovered from his pant, which he was wearing; currency notes of Rs. 3000/ collectively Ex P3 recovered on the pointing out of accused Prem Kumar from his rack; currency notes collectively Ex. P1 of Rs. 11,600/ recovered at the pointing out of the accused N.K. Gupta, currency notes collectively Ex. P2 of Rs. 4,200/ on the pointing out of accused B.K. Gupta and Banmali Heldar recovered from a folder lying in their office bag; currency notes of Rs. 3,000/ recovered on the pointing out of accused Kishori Lal from his office rack. As per the testimony of this witness all these currency notes had been initialed by two independent witnesses, namely, Virender Tyagi and Baldev Raj.
34. According to this witness during the course of investigation at the spot there was another sum of Rs. 45,500/ recovered from the staff office which was not claimed by any one. This also was taken into possession vide memo Ex. PW6/D. The witness had also identified two micro cassettes Ex P8 and P9 and also the cloth wrappers Ex P10 and P11 and also the envelopes Ex. P12 and P13.
C.C. No. 15/11 33 of 156 34
35. The witness had further proved the documents prepared during the investigation at the spot viz., disclosure statement of accused Kishori Lal Ex. PW2/G, disclosure statement of Prem Kumar Ex. PW2/G2, disclosure statement of accused N.K. Gupta Ex. PW2/G3, personal search memo of accused B.K. Gupta Ex. PW2/H2, personal search of the accused Kishori Lal Ex. PW2/H3, personal search memo of accused Banmali Haldar Ex. PW3/H4, personal search memo of accused N.K. Gupta Ex. PW3/H5 and personal search memo of accused O.P. Sharma Ex PW3/H6, rough site plan Ex. PW6/D and also memo Ex. PW3/C prepared with regard to preparation of copies of the micro cassettes wherein the conversation had been recorded on the day of trap.
36. The witness had referred to the personal search of the independent witness Shri Virender Tyagi Ex. PW6/E whereby from his possession 10 capsules of ampicilin and 10 capsules of aspirin were recovered. He had explained that these medicines were allowed to be retained by the complainant before the trap in his briefcase so that he could pretend that his daughter was sick and the C.C. No. 15/11 34 of 156 35 said medicines were to be delivered at his residence and he would hand over the same to the independent witness Shri Virender Tyagi when he visits his room and this would also be an excuse for Shri Virender Tyagi to remain in the room as long as possible. Since, these medicines had been handed over by the complainant to Shri Virender Tyagi on the pretext of being delivered as his residence; these medicines were recovered from his possession. He had identified the said medicines in the Court kept in an envelope produced in the Court.
37. This witness had identified those files / folders / pamphlets / stamp pad where the money was found concealed by different accused persons. In this way he had identified the file Ex. PW3/X3 from where the money was recovered at the instance of Shri Banmali Halder and Shri B.K. Gupta pursuant to their disclosure statements Ex. PW2/F. Folder Ex. PW3/X4 from where the money was recovered pursuant to the disclosure statements Ex. PW2/G made by the accused Kishori Lal. Stamp pad Ex. PW3/X2 under which a sum of Rs 100/ (kept by Bhim Singh, Peon not charge sheeted.) C.C. No. 15/11 35 of 156 36 Pamphlet Ex. PW2/B2 from where the money was recovered pursuant to the disclosure statement of accused Prem Kumar Ex. PW2/B. Newspaper Ex. PW2/D1 from where the money was recovered pursuant to the disclosure statement of the accused Shri N.K. Gupta.
38. Finally the witness had identified envelopes Ex. PW6/G1 and PW6/G2 in which the bribe money was offered by Shri Prem Kumar and Shri B.K. Gupta bearing the signatures of independent witnesses, namely, Shri Virender Tyagi and Shri Baldev Raj and also the briefcase Ex. PW3/X1 wherein the bribe money was kept by the complainant after being offered by the accused Prem Kumar and B.K. Gupta in the said two envelopes.
PW7
39. Witness PW7 Const. Zaheeda Qureshi is the Lady Const. who was to go inside the room of the complainant as per the instructions given in the pretrap proceedings along with SI Sayeed Bazaullaha. She had deposed that she was given role to go inside the office of C.C. No. 15/11 36 of 156 37 Amit Dass Gupta and meet him alongwith SI Bazaullaha and to tell the complainant that she wanted to get clearance for going to Pakistan. The complainant asked her to sit in the room and also made inquires from her if she was going alone or there would be someone traveling with her to which she had replied that she was to travel alone. Shri Amit Dass Gupta had assured her that she would get the clearance. In the meanwhile SI Bazaullaha had gone out and given the pre appointed signal and thereafter the entire trap team entered the room of the complainant. They had noticed that there was some money lying in a briefcase with the complainant. The team members had thereafter raided at different rooms in the office and the money was recovered from various places in that office. Some of the officials in the office had been arrested.
PW8
40. Witness PW8 SI Bazaullaha had deposed that he was the member of the trap team which was led by Shri R.K. Joshi, Dy. S.P. He was instructed by him that he and Const. Zaheeda Qureshi would go inside the room of the complainant on the pretext of taking C.C. No. 15/11 37 of 156 38 clearance for going to Pakistan and if they were to be allowed to come inside the room it would mean that the transaction was over and thereafter he was to come outside to give signal to the rest of the team. Accordingly, after pre trap proceedings they had proceeded for the office of POE. He at about 6.00 P.M. was Instructed to go to the office of the complainant with Zaheeda Qureshi. He had proceeded for the office of the complainant. Both of them were asked by the complainant to come inside. They had accordingly gone inside. The complainant had offered seat to Const. Zaheeda Qureshi which meant that the transaction was over. He accordingly had come out and gave signal to the waiting trap team members. Immediately thereafter Shri Darshan Singh, DSP followed by other team members had entered in the room of the complainant. The team had recovered Rs. 25,700/ from the complainant who informed that this money was give to him by accused Prem Kumar and Shri Gupta who were members of POE staff. In his presence Shri Prem Kumar and Shri Gupta thereafter had informed the trap team members that it was a practice in the POE office to collect bribe amount from travel agents and recruitment agents and than POE staff used to share the collected bribe amongst them.
C.C. No. 15/11 38 of 156 39
41. During the testimony this witness had identified his signatures on memo Ex. PW2/J relating to the pre trap proceedings and recovery memo Ex. PW2/A relating to the recovery of Rs. 25,700/ from the complainant. He had further identified two other memos Ex. PW8/A and Ex. PW8/B relating to the recoveries made at the instance of Shri J.P. Sharma of Rs. 5,000/ from one Santosh Kumar, Proprietor Santosh Tailors at Sarojini Nagar and 53 documents and Rs 5,000 from his flat No. 2, Vasurkar Market, Moti Bagh, New Delhi. PW9
42. Witness PW9 Shri S.K. Peshin was also the member of the trap team in whose presence the recoveries have been made. His testimony is more or less on the lines of the testimony of PW6 Shri R.K. Joshi. He too had deposed about the documents which were prepared at the spot during the investigation and also at the time of pre trap proceedings and identified all documents including the documents prepared of the arrest of the accused persons.
C.C. No. 15/11 39 of 156
40
PW10
43. Witness PW10 Shri B.N. Jha is the Investigating Officer who had taken over the investigation from Shri R.K. Joshi, Dy. S.P. He had deposed that after he had taken over the investigation he had examined the two independent witnesses associated with the trap proceedings and also the IO Shri R.K. Joshi, Dy. SP as well as the other team members. He had deposed that he had moved the application for recording the statement of Vasudev Sahejwani, travel agent u/s 164 Cr.P.C. before Shri Dinesh Dayal, the then Ld. MM. Pursuant to the said application Shri S.N. Gupta, the then Ld. MM had recorded the statement of Shri Vasudeo Sahejwani Ex.PW4/B. He had collected the copy of the said statement by moving the application Ex. PW10/A. He had also stated that he had filed the application dated 05.04.1989 Ex. PW10/1 in the Court of Shri Dinesh Dayal, the then Ld. MM for granting pardon to Shri Vasudev Sahejwani on which the order Ex. PW4/D in respect of tendering pardon to him had been passed.
C.C. No. 15/11 40 of 156 41
44. In the course of further investigation as per the testimony of this witness he had further recorded disclosure statement of J.P. Sharma Ex. PW10/3 and on his pointing out had made recoveries for which he had prepared pointing cum seizure memo Ex. PW8/A and one another pointing cum seizure memo Ex. PW8/B. He had also referred to the transcript Ex. PW10/4 prepared from the recorded conversation in the micro cassettes. He also had deposed about obtaining the sanction for the prosecution of the accused persons Ex. PW1/A and PW1/B. PW11
45. Witness PW11 ASI R.C. Gangwal Incharge Malkhana had brought to the Court Malkhana register of the year 1987 1988 and had placed on record photocopies of the pages of Malkhana register Ex.PW11/1 and Ex. PW11/2 with regard to the properties deposited in the Malkhana on 22.04.1988.
C.C. No. 15/11 41 of 156
42
PW12
46. Shri Arun Kumar Bhattarai, who was Protector of Emigrants in July, 1988, was examined as PW12 . This witness had explained the procedure of emigration clearance / suspension clearance; procedure for individual emigrations for employment; procedure for group emigration for employment and procedure for "Emigration check not required" cases. He had further deposed about the records maintained by POE in respect of the said cases.
47. This witness had also referred to the amount of imprest money kept by the office of POE and how was it spent. This witness had identified the files Ex. PW12/A1 and Ex. PW12/A2 relating to the emigration suspension for tourist dated 20.04.1988 and 21.04.1988. He had also identified the attendance register of the staff of POE from January, 1988 to June, 1988 Ex. PW12/B. He had deposed on the basis of the said register that as to who were the officials who were present on duty on 21.04.1988 as per the said attendance register.
C.C. No. 15/11 42 of 156 43 Statement of accused u/s 313 Cr.P.C.
48. All the incriminating evidence which had come on record was put to the accused persons and their statements under section 313 Cr.P.C. were recorded.
Defence witnesses
49. Accused N.K. Gupta had examined three witnesses in his defence, primarily to show that on the day of the incident he was not in the office. Accused Shri Prem Kumar and Shri B.K. Gupta had also examined five witnesses out of which the testimony of PW7 had remained inconclusive.
DW1
50. Witness DW1 Smt. Kamlesh is the first cousin of accused Naresh Kumar Gupta. She had deposed that the accused herein is the son of her uncle (Tauji). They are three sisters and have no brother. The name of one of his sister is Radha. She was married on C.C. No. 15/11 43 of 156 44 19.04.1988. This marriage took place at the house of the accused at 21/47, Shakti Nagar, Delhi. She had deposed that since her father used to remain ill, therefore, for everything they used to depend on the accused. At one point of time they had been residing in the same house as a tenant before shifting to another address at Majlis Park, Adarsh Nagar. She had proved on record the marriage card of her sister Ex. DW1/A.
51. According to her testimony at the time of the marriage of her sister Radha, she was pregnant and she came to join the family only st on the morning of 19.04.1988 and had left on the morning of 21 or nd 22 of April, 1988. All the arrangements of the marriage had been made by the accused. The Barat had arrived on the evening of th 19.04.1988 and on the morning of 20 April her sister Radha was given a send off (Bidai). On 20.04.1988 the accused was busy in settling the accounts of various persons such as Tentwala etc. On st 21 of April the accused had gone to bring Radha back from her susral for pagphera. He had returned home at about 4.00 - 5.00 p.m. Along with her sister also had come her husband and other relatives from the side of her susral. They were all served dinner on the C.C. No. 15/11 44 of 156 45 st th evening of 21 of April, 1988. Thus as per her testimony from 19 to st 21 of April, 1988 accused Naresh Kumar Gupta was at home only and there was no question of his attending the said office during the said period.
st
52. She had added that on 21 April, 1988 at about 8.00 or 8.30 p.m. Two persons came to the house in plain clothes. They asked the accused to accompany them to the office. After he had left, she and other family members in family had started taking care of guests. The guests had also returned alongwith her sister but that night accused nd did not return home. On 22 of April she was to leave. She came to know after 45 days that the accused had been taken away by the police.
53. In her testimony she had produced seven photographs relating to the marriage related functions which she had got prepared from one of the CDs prepared from the VHS cassettes having the recording of the marriage functions.
C.C. No. 15/11 45 of 156
46
DW2
54. Witness DW2 Shri Rajesh Kumar Garg is another witness examined just to establish that the accused Naresh Kumar Gupta was th th at home on 19 and 20 April. His testimony shows that though he was not related to the accused but over a period of time their relationship had developed and they had started visiting each others homes and attending the marriages in their families. He had stated that he had attended the marriage of Radha, cousin of accused Naresh Kumar Gupta. He was specially invited by the accused to help him. His testimony shows that he had remained at the house of the accused where this marriage had taken place on 19.04.1988 and had returned on the next day morning after the Bidai of his sister. He does st not speak about anything related to 21 April, 1988. DW3
55. Witness DW3 Shri Gian Prakash Gupta is stated to be the landlord of the accused during the period from 1980 to 2000. He had deposed that besides the accused in the said house i.e. 21/47, Shakti C.C. No. 15/11 46 of 156 47 Nagar, Delhi for 34 years uncle of accused, Shri Raghubir Singh Gupta was also residing as tenant. He had supported the other witnesses by saying that the marriage of the daughter of Raghubir Singh Gupta had taken place on 19.04.1988 at the said premises.
st
56. As per his testimony on 21 of April, 1988 at about 8.00 to 8.30 P.M, two persons had came in plain clothes and were making inquiries as to whether Naresh Kumar Gupta i.e. the accused was residing in the same premises or not. He had informed that the accused was residing in the same premises. He had then informed the accused also that there were two persons making inquires from him. At this, the accused had asked him to send these persons to him. These persons had accordingly gone to the first floor of the house to meet the accused and thereafter he had returned to his own room. After about half an hour he had noticed accused going out of the house with those two persons.
57. This witness had also confirmed the fact that the accused was the overall in charge of the marriage as Raghubir Singh Gupta , father C.C. No. 15/11 47 of 156 48 of Radha, was not having son and, therefore, he was shouldering the st entire responsibility of the marriage. On 21 of April, 1988 he had left at about 1.00 P.M. for bringing Radha back home from her susral for pagphera. ( this part of his testimony is clearly hearsay as admitted by him he used leave for his office in the morning and return home in the evening and on that day also he had left in the morning and returned in the evening). He had deposed that accused must have returned home at about 6.00 or 6.30 P.M. DW4
58. Witness DW4 Shri Pankaj Bharti working as Assistant Ahlmad in the Court of Shri Gautam Manan, Ld. ACMM01, Patiala House Courts had produced the file of one case FIR No. 22/90 of P.S. Mandir Marg u/s 420 /406 IPC against Shri Vasudev Sajhwani, approver in this case. He had proved on record the certified copy of the charge sheet Ex. DW4/A. DW5
59. Witness DW5 Shri M.S. Tangry retired Under Secretary of Government of India had deposed that in the year 1987 he was the C.C. No. 15/11 48 of 156 49 Protector of Emigrants. He had proved an office order dated 21.09.1987 as Ex. DW5/A. He had also stated that during his tenure he had not received any complaint against Shri B.K. Gupta and Shri Prem Kumar.
DW6
60. Witness DW6 Shri Chet Ram Meena working as Assistant, Ministry of Overseas Indian Affairs had produced one letter Ex. DW6/A handed over to him by his officer Shri Rajiv Wadhwan Dy. Secretary. There was nothing in this letter except informing the Court that the record relating to the licence of M/s Travelman Consultants. (Firm of approver) was not traceable.
DW7
61. The testimony of Witness DW7 Shri Rajiv Wadhwan, Dy. Secretary Minister of Overseas and Indian Affairs is also to the same effect. He had deposed that there is possibility that the record relating to M/s Travelman Consultants registration No. 1328/Del./Part/100/3/2441/88 issued on 20.09.1988 may have been C.C. No. 15/11 49 of 156 50 destroyed. As stated above the testimony of this witness had remained inconclusive and, therefore, cannot be read in evidence. DW8
62. Witness DW8 Shri R.R. Gupta, Section Officer, Ministry of Overseas and Indian Affairs that despite making efforts he had not been able to trace the register of licenses issued to the Recruiting Agents having the record of license bearing No. 1328/DEL/PART/100/3/2441/88 issued on 20.09.1988 in favour of Shri Vasudev Sajhwani, partner of M/s Travelman Consultants. Hearing of submissions
63. I have heard Ld counsels for the Accused persons and Ld Public Prosecutor for CBI. I have also gone through the record of this case and the written submission filed on behalf of all accused except accused No. 6 Shri Rajinder Rai.
C.C. No. 15/11 50 of 156
51
Discussion and Findings
Tape Recorded Conversation and its transcript
64. Besides the two independent witnesses, the Tape recorded conversation and the transcript thereof, constitutes the most important evidence to lend credence to the case of the prosecution. Transcript
65. While the tape recorded conversation may be primary evidence of what was recorded but a transcript does have the corroborative value and it also serves an important purpose in the sense it assures that there is no tempering of the recording itself. A fortiori, it may be easy to temper with a recorded conversation but not with the transcript. It was observed by the Hon'ble Supreme Court in Ziyauddin Burhanuddin Bukhari vs Brijmohan Ramdass Mehra & Ors on 25 April, 1975 ; 1975 AIR 1778, 1975 SCR 453:
"As regards the shorthand transcripts of the tape records, the evidence of their makers is there, it is certainly corroborative inasmuch as it only goes to confirm what the C.C. No. 15/11 51 of 156 52 tape records contained. The tape records were the primary evidence of what was recorded. The transcripts could be used to show what the transcriber had found recorded there at the time of the transcription. This operated as a check against tampering. They had been rightly used by the High Court only as corroborative evidence."
66. There are serious question raised as to the reliability of this transcript (Ex PW 10/4). There appears to be some truth in it. This transcript does not bear the signatures of anyone besides the Investigating Officer Sh. Jha. One can find that it is not just the word to word narration of what had been stated in the tape recorded conversation but the same is also supplemented by the description of the background scene what must have been going on at the time when the recorded conversation was taking place. Since Mr Jha was not present at the time when this conversation was taking place, he could not have either given such supplementary description of scenes or attributed conversation to different persons as mentioned in the transcript without the assistance of someone who was present during the course of the conversation. When he was asked in the cross examination about it he had stated "It is correct that in the C.C. No. 15/11 52 of 156 53 transcription Ex PW10/4 something has been added over and above what appeared in the recorded conversation. (Vol). The said addition was made at the instance of the Trap Laying Officer. At another stage of the crossexamination when he was crossed on the same lines he had stated "At this stage, I do not remember how much time was consumed in preparation of transcription Ex PW10/4. At this stage, I do not remember as to who had identified the voices appearing in the tape recorded conversation. The addition made in Ex PW10/4 on the basis of the directions of the Trap Laying Officer, were not reflected in any other memo."
67. When the Trap Laying Officer Sh. R.K. Joshi was cross examined with regard to the same fact, he had deposed "I do not remember if I was associated in the process of preparing the transcript of the recorded conversation in the above cassettes."
68. I may also add here that on close examination of the transcript I find that the voice attributed to Darshan Singh cannot be his, as he came to the scene along with Trap Laying Officer Sh. R.K. Joshi and C.C. No. 15/11 53 of 156 54 not before. He did not walk into the room of the complainant with the lady ( Ct Zahida Qureshi). It was SI Sh. Sayeed Bazulla who had walked in with her. It is mentioned all over but just to clinch the issue I am referring to the part of the statement of PW 8 Sh. Syed Bazaulla where he has stated "I was instructed by the team leader to the effect that myself and Const. Zahida Qureshi would go inside the room of Sh. Amit Das Gupta on the pretext of taking approval for Pakistan." After him reaching at the spot he has described what had happened in these words "At 6.00 P.M. I was instructed to go to the office of Sh. Amit Das Gupta, POE along with Ct. Zahida Qureshi. Accordingly both us proceeded to the office of Sh. Amit Das Gupta . Both of us were asked by Amit Das Gupta to come inside. Amit Das Gupta offered seat to Smt. Zahida Qureshi. This meant the transaction was over. Accordingly I came out and gave preappointed signal to the waiting trap team members. Immediately Sh. Darshan Singh, Dy. S.P. followed by other members of the trap team members entered the room of Amit Das Gupta." Emphasis Supplied). It was not the instruction for Dy. S.P. Darshan Singh to have talked to the complainant on this issue. The transcript, however, makes no reference to SI Bazaulla. It gives an impression that first Ct Zahida C.C. No. 15/11 54 of 156 55 Qureshi entered alone thereafter Dy. SP enters the room with three official of CBI (Page 12 of Transcript). It also shows complainant had talked to Darshan Singh that as to whether he was go for HAJ and Darshan Singh was making the inquires as to how much time would paper work would take ( Page 13 transcript). Is it believable anyone one would ask a Sikh gentlemen that he was to go for Haj? When he was making inquires about the travel documents, Dy. S P R.K. Joshi TLO enters the room. This obviously is not correct as per the case of the prosecution itself.
69. One thing more, as per the case of the prosecution the Ct Zahida Qureshi was to talk about going to Pakistan. She in her statement before the Court had also stated "At about 6.00 Pm I along with Sayed Bazzullah entered the office of Amit Das Gupta. Sh. Gupta asked me for what purpose I had come to which I had replied that I had to get clearance for going to Pakistan." In the transcript there is no word "Pakistan" which has been used. The word which has come is "Saudi Arabia".
C.C. No. 15/11 55 of 156 56
70. It is intriguing as to how this translation could be made without the assistance of the Complainant as he was the only person who knew all the players except the Lady Const. Zahida Qureshi and Syed Bazaulla the officials of CBI who had turned at the fag end when everything was over. When he was asked in the crossexamination he had deposed that he was hearing the recording for the first time. He precise words were "It is correct that after the day of the trap, I have seen and heard the cassette today in the Court."
71. The final result is that there is no clarity that how this transcript was prepared by Sh. Jha. There are serious doubts about the contents of the transcript itself. Thus it can be said that this transcript is completely unreliable.
Recording in the Cassette
72. It is now well settled that a "tape record" is a document as de fined in section 3 of the Evidence Act. It has already been stated above that the tape records constitute primary evidence. It may be noted few, if any, forms of evidence are likely to be as probative--or C.C. No. 15/11 56 of 156 57 as devastating. Here we have a testimony where words of accused speak for themselves of accused having committed the crime.3 There is one thing, however, which always weighs in the mind of the Court, is its fragility or its property of being able to be erased or rewritten at will. Hon'ble Supreme Court had laid down six conditions in Ram 4 Singh's Case as to the admissibility of a tape recorded statement. The same are as follows:
(i)The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
3
RECORDINGS, TRANSCRIPTS, AND TRANSLATIONS AS EVIDENCE By Clifford S. Fishman Washington Law Review Vol. 81:473, 2006 http://digital.law.washington.edu/dspace-law/bitstream/handle/1773.1/272/81washlrev473.pdf?
sequence=1 4 1985 SCR Supl.(2) 399 C.C. No. 15/11 57 of 156 58
(ii) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial.
(iii) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(iv) The statement must be relevant according to the rules of Evidence Act.
(v) The recorded cassette must be carefully sealed and kept in safe or official custody.
(vi)The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
73. Let us, therefore, examine if these conditions stand fulfilled in this case.
74. According to the case of the prosecution during the pretrap proceedings it was settled that independent witness Virender Tyagi would go to the office of the complainant to be with the Complainant C.C. No. 15/11 58 of 156 59 with two micro cassette recorder with fitted micro cassettes with S.K. Peshin iIspector, pretending to be the cousin of the complainant. S.K. Peshin would take search of room and personal search of the complainant to ensure that there was nothing incriminating in his office room or his person. Virender Tyagi was to then hand over the two micro cassettes recorder fitted with micro cassettes as the other members of team would take position outside the Office of POE. Complainant would switch on the recorders and record everything. Later after the bribe transaction is over, on receiving the signal members of the team would enter, microcassette recorders would be collected and investigation further will proceed. In this context what happened in the pre trap proceeding and post trap proceedings both are important.
No certainty if before the trap it was ensured the cassettes inserted in the tape recorders were clean.
75. PW 2 Baldev Raj is an independent witness he in his examinationinchief has not stated a word about micro cassettes. In the crossexamination by the Ld Prosecutor he had stated "It is not in C.C. No. 15/11 59 of 156 60 my knowledge that a micro cassette recorder was given to Amit Das Gupta or that before handing over the recorder, cassette was played to show that it was blank. It is possible that blank cassette was signed by me and another witness Sh. Viirender Tayagi." He thereafter admits on the suggestion given "It is correct that both the tape recorders were handed over to Sh. Virender Tyagi with the direction to handover the same to Sh. Amit Das Gupta in his office."
76. PW3 Sh. Virender Tyagi though in his examination had stated that "A cassette was played to show that it was blank." When he was crossexamined he had stated "Mr. Joshi gave me one tape recorder and one blank cassette after playing it randomly. I do not remember what was duration of for which the tape was played. That tape was only played randomly on 'A' side." One may take note of the fact that there was not one but two tape recorders fitted with a micro cassette each. This one cassette too was also checked from only one side and not both sides.
77. It is, however, correct that the Complainant, the Trap Laying officer and one of the officer members of the team Sh. S.K. Pesin C.C. No. 15/11 60 of 156 61 deposed that it was ensured that the two cassettes to be used did not have any perrecorded material. At the same time it may also be noted that the testimonies of SI Bazaulla and Ct Qureshi are completely silent about it. The other witnesses who had been part of the team such as Sh. R.S. Saroha, R.S. Manku , Sh. K.M. Varkey, Rajinder Singh have ( Sh. Darshan Singh Dy S.P was reported to have expired.) have not been examined to vouch for the truth of this fact.
78. I am of the view, in view of the testimonies of independent witnesses Sh. Virender Tyagi and Sh. Baldev Raj at least there is a doubt created if at all it was ensured that before the microcassettes were fitted in the tape recorder it was ensured that the same were blank.
Not recording introductory voices of independent witnesses
79. Not in one but in a number cases which have come up before this court, it has been found that in the trap cases there is a procedure followed of recording introductory voices of the C.C. No. 15/11 61 of 156 62 independent witnesses giving the date, time and places of their participation. The purpose is to ensure that when the evidence is presented before the court it can be ascertained that independent witnesses whose introductory voices had been recorded were the part of the investigation. It also in a way makes tampering of recording difficult. There were no such precautions taken in this case. There is no explanation why was it not done.
Quality of the recording in terms of its audibility and intelligibility
80. The tape was played before two witnesses in the Court, one is approver PW4 Sh. Vasudev Sahajwani and other is the witness Complainant Shri Amit Dasgupta. There would be no better way to understand about the audibility and intelligibility of the recording made then to reproduce the relevant part of their testimonies. Part Statement of Sh. Vasudev Sahijwani dated 17.07.2007.
"At this stage one micro cassette Ext.P1 is played in the Court. The witness states that he is hearing this cassette C.C. No. 15/11 62 of 156 63 for the first time. The playing of the cassette is started in the Court at 11.40 a.m. The cassette is played and the witness says that this conversation took place in the office of Sh. Amit Dass Gupta on 22.4.88. He states that the voice / conversation in the beginning in the cassette was not audible being not cleared. He states that after playing the cassette further there is a voice of Rajinder Rai accused NO.8 and he is repeating "Half an hour" and witness states that his voice is not audible but his wording "half an hour" is clear. The witness is not able to identify the voice of another persons. The cassette is being further played and states that Rajinder Rai is saying "we have to hurry up". The cassette is further played and the witness is not able to identify the voice. The cassette is further played and the witness states that Rajinder Rai is saying "Half an hour". Cassette is further played and the witness states that the voice is not clear. The cassette is further played and the witness states that due to noise the voice is not audible. Cassette is further played and the witness identified the voice of Amit Dass Gupta, POE (Protector of Emigrant) and he is saying that there is system and he is talking to Rajinder Rai who is uttering the words "half an hour". Cassette is further played and the witness identified the voice of Amit Dass Gupta who is saying "my promotion is hello hello" and he is talking to Rajinder Rai. The cassette is further played and the witness identified the voice of Rajinder Rai who is saying "What to do yaar". The cassette is further played and the C.C. No. 15/11 63 of 156 64 witness identified the voice of Amit Dass Gupta who is saying "Telephone Number is 320859 Extension No.225 and the residents No.460236". The cassette is further played and the witness identified the voice of Rajinder Rai who is asking Amit Dass Gupta "Your promotion is due" and Amit Dass Gupta is saying "My promotion is due". The cassette is further played and the witness identified the voice of Rajinder Rai "When it is due" to which Amit Dass Gupta replies "My case will be taken up and put up and ACP approval". (This portion is finding mentioned in the transcription Mark A at point C to D) (Objected to by Sh. Arun Sharma, Sh. Vinod Dutta and Sh. Raj Kumar Sharma Advocates) The cassette is rewind and replayed and the witness identified the voice of Amit Dass Gupta who says that "my case will be taken up and put up for ACC approval". The cassette is further played and the witness identified the voice of Amit Dass Gupta that "I have reasonable record and I thing..." and the witness states that the sentence is not audible. The cassette is further played and the witness states that the voice is not audible but the talk is between Amit Dass Gupta and Rajinder Rai. The cassette is further played and the witness identified the voice of Rajinder Rai who is saying "I told them that I am not to be blamed and Rupees three thousand per case". The cassette is further played and the witness identified the voice of Amit Dass Gupta saying "Three thousand rupee per case" to which Rajinder Rai said "Yeah". The witness states that he is 65 years of age C.C. No. 15/11 64 of 156 65 and is hard of hearing and the cassette played by now is mostly not audible to him. There are distortions of voice played by now."
Part statement of Sh. Vasudev Sahijwani dated 20.7.2007.
" The cassette Ex.P8 is played further and the witness identified his own voice telling Mr. Amit Dass Gupta "I have cleared my full account and I paid to them and I am not to be blamed and you discuss with them". (This portion is reflected in the transcription mark A at point D to D) Objected to. Now the cassette is further played and the witness identified the voice of Amit Das Gupta asking his staff "Rs.6,000/ per case". (this portion is reflected in portion D1 to D2) objected to. Now the Ld. Defence Cl Sh. Vinod Dutta Advocate submits that this may be ask that he has heard any sentence between the portion D to D and D1 to D2 and the witness states that voice is there but the same is not audible to him. Now the cassette is further played and the witness identified the voice of Mr. B. Haldar saying "they are not paying". (The same is find reflected in transcription at portion D3 to D4). The cassette is further played and the witness states that the same is not audible. The cassette is further played and the witness identified the voice of Rajinder Rai telling Amit Das Gupta saying "Chota Sa problem hai". (this portion is reflected in the transcription Mark A at point D5 to D6). Cassette is further played and the witness C.C. No. 15/11 65 of 156 66 identified the voice of Amit Das Gupta saying "Kya Problem hai" Now he identified the voice of Rajinder Rai saying "ECNR nahi Hua hai". He also identified the voice of Amit Das Gupta telling Rajinder Rai "Five hundred per case". (This portion is reflected in transcription Mark A point D7 to D8). The cassette is further played and the witness identified the voice of Amit Das Gupta Mr. Rajinder Rai "What he is saying". (this portion is reflected in the transcription mark A at point D9 to D10). Now the cassette is further played and the witness identified the voice of Rajinder Rai saying "all the cases are wrong".
(This portion is reflected at portion D11 to D12 in the transcription Mark A).
The cassette is further played and the witness states that the voice is not audible due to disturbance. The cassette is further played and witness states that someone is saying "maine commitment de di thi" but the witness states that he is not able to identify who has spoken this dialogue. Now the cassette is further played and witness identified the voice of Amit Das Gupta telling his staff "Sehajwani ne bola ki payment kar di". Now the cassette is further played and witness says that the voice is not audible. The cassette is further played and the witness identified the voice of Amit Das Gupta "Han bolo". The cassette is further played and witness states that the voice is disturbed and then he identified his own voice saying "there is no point in discussing petty petty issues.
C.C. No. 15/11 66 of 156 67 We have been paying Rs.800/ to Rs.900/ per case. They are trying to brake our syndicate and we want to continue this". (this portion is reflected in transcription mark A from portion F to D13). Now the cassette is further played and witness identified the voice of Haldar, accused, saying to me "you take your commitment". (this portion is reflected in transcription mark A from portion D14 to D15). Now the cassette is further played and witness saying that voice "Cheque de diya hai" is audible but he is unable to identify. Now the cassette is further played and witness states that the voice is disturbed. Cassette is further played and witness identified the voice of Amit Das Gupta saying "you need an arbitrator". (this portion is reflected in the transcription mark A at point D16 to D17). Now the cassette is further played and witness identified the voice of Amit Das Gupta saying "now you want to pay Rs.350/". (this portion is reflected in the transcription mark A at point D18 to D19). The cassette is further played and witness identifies his voice saying "the person who has worked abroad for three years, ECNR should be done automatically". (this portion is reflected in transcription at mark A from D20 to D21). Cassette is further played and witness identified the voice of Rajinder Rai @ Rajji Saying "what you have decided finally with us". (this portion is reflected in transcription mark A at point D22 to D23). Cassette is further played and the witness identified the voice of Amit Dass Gupta saying "that today because of misunderstanding we have cleared the cases and the previous amount of Rs.350 will C.C. No. 15/11 67 of 156 68 stand". (this portion is reflected in transcription mark A at point D24 to D25). Cassette is further played and the witness identifies his own voice saying "payment will come through Mr. Duggal". (This portion is reflected in transcription mark A at point D26 to D27). Cassette is further played and the witness identifies his own voice by saying "If Mr. Duggal comes, please do the work". (This portion is reflected in transcription mark A at point D28 to D29). The cassette is further played and the witness identified the voice of Amit Dass Gupta saying "what is the total amount". (This portion is reflected in transcription mark A at point D30 to D31). The cassette is further played and the witness identifies his own voice saying "Rs.41,460/". (This portion is already reflected in transcription mark A at point H to H). Cassette is further played and the witness identified the voice of Amit Dass Gupta confirming "41,460/ rupees". Now the cassette is further played and thereafter someone came in the room to which the witness identified the voice of Amit Dass Gupta saying to that person "kya baat hain, baad main ana". Now the cassette is further played and the witness states that the voice is not audible. Cassette is further played and the witness states that he is identifying the voice of Rajinder Rai and Amit Dass Gupta but is not able to pin point what they are saying. Cassette is further played and the witness identified the voice of Rajinder Rai saying "you said something". Cassette is further played and the witness states that the voice is not audible. Cassette is further played and the C.C. No. 15/11 68 of 156 69 witness states that thereafter the amount was finalized Rs.37,400/ but on playing the cassette the same was not audible to him and after finalization of this amount Rs.37,400/, I along with Rajinder Rai, T.S Duggal and Nand Arora paid Rs.27,000/ to accused Haldar and B.K. Gupta and promised to pay the remaining amount next day i.e. on 22.4.1988 and then I left the spot.
As the witness states that thereafter he left the spot, cassette is not played further."
The portions shown in bold above would show that there large portions which were not intelligible and not audible. Relevant Part of Testimony of PW 5 Sh. Amit Dasgupta "The cassette is played and the witness identifies his voice in which he is saying that to hurry up as his daughter was unwell and he wanted to go home which talk is mentioned at portion A to A of transcript. The cassette is again played and the witness states that the second voice is of the travel agent Mr. Rajji in which he is complaining that the whole system had become corrupt and that nothing could be done without making any payment and that to change the system, it would take a long time and this is gist of the conversation from point B C.C. No. 15/11 69 of 156 70 to b of transcript. The cassette is again played and the witness identifies his voice and that of Mr. Rajji about promotion which talk is at point C to C. The cassette is again played and the witness states that the gist is that Mr. Rajji is saying that amount to be paid had been agreed upon as demanded and that he was not to be blamed. These talks are mentioned at point D to D. The cassette is again played and the witness states that this portion is in Bengali and was said by one Mr. Halder who was insisting on advising that conversation with the travel agents should not take place on rates and if such conversation took place, the agent would reduce the rate. This conversation is at point E to E. The cassette is further played but due to disturbance the witness is unable to make out the conversation. The cassette is again played and the witness states that the travel agent explains that there is syndicate which they would like to maintain. The conversation is about variations in rates, which are from portion F to F. The cassette is again played and the witness states that this portion pertains to whether the amount should be Rs.500/ per case or Rs. 350/ or Rs.300/ per case. The argument is between the travel agents and Mr. Halder. I have offered to arbitrate. These conversation are at portion G to G. the cassette is again played and the witness states that there is talk for amount which is about Rs.41000/ something like Rs. 400/ or Rs.600/, which is at portion H to H. The cassette is again played and the witness states that there is talk for amount which is either Rs.21000 or Rs.27000 C.C. No. 15/11 70 of 156 71 which he is not able to make out clearly. The talks about second amount is at portion K to K. The cassette is st again played and the witness states that 21 would be the day when I accept money. The amount would need to be worked out from the date of my joining. These talks are at portion L to L. The cassette is again played and the witness states that this part of the talk is of the stage as predecided two CBI officers enter my office. They ask for information pertaining to going abroad which is at portion M to M. The cassette is again played and the witness identifies the talks that this is the first time that I would be taking money and the money be kept in briefcase. These talks are of portion N to N. The cassette is again played and the witness identifies the talks that I asked what is to be done with such bribe money and I was advised by Prem Kumar that such money may be put in bonds. These talks are at portion P to P. Accused Prem Kumar is present in the Court today (Correctly identified). The cassette is again played and the witness identifies the voice is of Lady from CBI who entered his office. The cassette is again played and the witness identifies the voice of second CBI officer who entered his office and fact of entering the lady officer and male officer of CBI and their talks are at portion Q to Q. The cassette is again played and the witness identifies his voice in which he is advising and giving information to the CBI officers on the procedure of emigration for visiting abroad. These talks are at portion R to R. The cassette is again played and the witness identifies the C.C. No. 15/11 71 of 156 72 conversation of one CBI officer who is asking about the whereabouts of Mr. J.P Sharma. The fact about Mr. J.P Sharma is of portion S to S. The cassette is again played and the witness states that in these talks, the CBI officer inquires who was sitting with him."
81. Here one may notice that there is no sentence to sentence or description what is recorded in the cassette but broadly what is recorded there with reference to transcript in question. When he was questioned in the crossexamination he had stated "It is correct that I have not reproduced the recorded conversation in verbatim and given gist only." In essence it would mean there is great deal of speculation involved here even the words or sentences which could not have been heard or were intelligible have been assigned some meaning to bring them close to what is stated in the transcript. I am of the view that testimony of this witness does not inspire confidence to say recording in the cassette is reliable in the sense that it was audible and intelligible.
82. It may be noted that there is a statement of the independent witness Sh. Virender Tyagi "My Joshi took the cassette recorder from C.C. No. 15/11 72 of 156 73 the POE and played the same was not clear." When he was cross examined by the Ld Prosecutor he did try to improve what he had in the examination in chief by saying " It is correct that the cassette was played. At that time I was at a distance and did not hear conversation". There was not even a question put to the other independent witness Baldev Raj about it. The testimony of Virender Tyagi does seem to be an honest admission that the voice was not clear when it was played and heard at the first opportunity. Sealing of the cassette
83. The question that the cassette in question had been sealed and there was no possibility of it being tempered, was for the prosecution to prove being one of the essentials conditions for admitting the cassette in evidence or to say that to attach any credibility to it.
84. The first stage to seal the cassette was when it was collected from the Complainant on 21/04/1988 soon after the Trap Laying Officer had got inside the room of the Complainant after getting the signal to indicate that bribe transaction is over.
C.C. No. 15/11 73 of 156 74
85. The examination in chief of witness Baldev Raj is brief. His testimony had been recorded in two parts. First on 05/04/2005 and second time on 09/11/2006 when he was recalled after the accused T.S. Duggal had appeared in Court who was earlier proclaimed offender. On 05/04/05 in his examination he did not support the case of the prosecution and had been crossexamined by the Ld Prosecutor. In the examinationinchief, he had merely stated in the relevant part "we left the CBI office. Vehicles were parked at a safe distance and we proceeded on foot to the above office. I and another official witness were asked to sit in another room. Immediately on the arrival of the CBI team there, people started running here and there. CBI team started search operation and people started keeping the money in their packets to places like table, jugs, files and money was also thrown in the record room." There is no word about either collecting the cassette from the complainant or hearing the same or sealing the same. When he was questioned in the crossexamination by Ld Prosecutor he had stated "Complainant was not searched in my presence nor the micro cassette recorders were recovered from his table drawer in my presence." It may noted that he is the witness to whom according to the case of the prosecution seal after use was C.C. No. 15/11 74 of 156 75 handed to maintain that there had been no tempering of seal possible. There was, however, not single question put to him either in the examining in chief from the side of the prosecution or in the cross examination conducted by the Ld Prosecutor. In the cross examination on behalf of the accused he had stated "No conversation was recorded in the tape in my presence nor any cassette was played in my presence."
86. In his examination in chief on 09/11/2006, there were some additional questions put to him. He had deposed " ... on 23.05.88 I was called to the CBI office on that day two micro cassette, were opened in my presence." This witness was also examined on behalf of the Accused. He deposed, referring to the day when the transcript was prepared, "I do not know if there was any document prepared with regard to the sealing of the microcassettes was prepared or not". I also do not remember when I returned the seal. I also do not remember to whom I returned the seal. I also do not remember what was the impression of the seal." He had further deposed in the cross examination again in reference to the proceedings of 23/04/1998 "
C.C. No. 15/11 75 of 156 76 Before opening the seal of the cassettes I checked up and it was the same seal which was handed over to me and intact. That seal was handed over to me on 21.04.88 after the raid proceedings. I do not remember the impression of that seal. It is correct the impression of the seal is not mentioned in Ex PW3/C."
87. I would like to note there is nothing much in the examinationin chief with regard to the sealing of the microcassette on 21/04/1988 or to an extent even on 23/04/1988. But what has come in the cross examination from the side of the accused can be summed as - the microcassettes were sealed on 21/04/1988 after the raid. Seal was handed over to this witness. It was found to be intact when it was opened on 23/04/1988. It was resealed on 23/04/1988 and it was handed over. He did not remember what the impression of the seal or as to when he had returned the seal and to whom. There is no suggestion to the contrary given to this witness.
88. The testimony of witness PW 3 Sh. Virender Tyagi would show that he too had not stated anything about the sealing of the micro C.C. No. 15/11 76 of 156 77 cassette in the examinationinchief but in the crossexamination by the Ld Public Prosecutor he had stated "The memo in respect of the sealing of the cassettes is Ex PW3/C bearing my signature at point A." It may be noted this memo is of 23/04/88 and not that of 21/04/88. In a question put to him in the crossexamination by defence, he had replied "I have signed on the packet in which cassette was sealed." Again there was no suggestion to the contrary to him.
89. PW 5 the complainant also did not say anything in his cross examination to the effect that the cassettes were sealed in his presence. He even did not say that it was played in his presence. He had deposed " The cassette recorders were taken from me along with the cassettes by CBI. The cassettes were not played in my presence but transcript was seen by me which was as per the conversation that took place in my office and contained correct record of the conversation." There is also nothing in the crossexamination of this witness which may show that in his presence the microcassettes were sealed and it was handed over to witness PW2 Baldev Raj.
C.C. No. 15/11 77 of 156 78
90. Testimony of witness PW7 Smt Zahida Qureshi and that of PW8 Sh. Syed Bazaulla is completely silent about it. PW9 Sh. S.K. Peshin the then inspector CBI who was part of the CBI team and Dy S.P. Sh. R.K. Joshi trap lying officer had both stated that the microcassettes were sealed and the seal after use was given to witness Baldev Raj. Sh. R.K. Joshi had, however, stated with regard to the return of the seal "I do not know where the seal is now. I had, however, not taken it back from him."
91. Thus the total positive evidence we have (thanks to the cross examination on behalf of the accused persons, other wise there in nothing much in the examination in chief of witnesses) that , micro cassettes were sealed at the spot, and seal after use was given to witness Baldev Raj. The seal was opened on 23/04/1988 and micro cassettes were resealed on the same day and seal was returned to Baldev Raj. There is, however, no clarity what happened to that seal thereafter. Whether it was forever left with the said witness or if he had returned it to whom it was return. It is, however, certain that it was not filed with court with the charge sheet as is usually done in some cases. CBI has also this practice of officers not having seal of their C.C. No. 15/11 78 of 156 79 own. The seals as it seems are got made in bulk by CBI which are handed over to investigating officers as part of the investigating kit and there is no record maintained as to which of the seal with what marking had been issued in which case. Perhaps, therefore, there was no interest displayed by the investigating officer in taking back the seal.
92. I am prepared to accept that these microcassettes were sealed on 21/04/1988 and resealed on 23/04/1988 and seal had been given after use to witness Baldev Raj and despite there being no clarity that as to when the seal was returned or if it was not returned at all I am prepared to accept that the microcassettes were properly sealed at the spot and again after they were opened on 23/04/1988. No effort to scientifically fix the voices of persons in the tape recordings.
93. Subhash Chand Chouhan V CBI [ 117 (2005) DLT 187, 2005 (79) DRJ 644] is also a case of the year 1988 where accused was apprehended after a trap had been laid and one of the evidence C.C. No. 15/11 79 of 156 80 sought to be relied upon was the tape recorded conversation between the accused and the complainant. It was noted in the said judgment:
"25. I am further surprised that the learned Additional Sessions Judge relied upon the alleged taperecorded conversation on the testimony of PW3 and on voice identification by PW3. Admittedly, the prosecution did not take specimen voice samples of the accused or PW3 and the alleged tape recorded conversation was never sent for analysis or voice spectography. No reliance could be placed on the alleged tape recorded conversation. It remained unproved evidence and hence inadmissible. I may note that in para 56 of its judgment, the learned Additional Sessions Judge has expressed reservations regarding the manner in which the seal of the cassette was broken without approval from the court."
94. Admittedly in this case there had been no attempt made to take the voice samples of the complainant or any of the accused to lend support to the credibility of the conversation recorded. Effect of absence of proper transcription
95. It has already noted above but to put it in the context of evaluating the credibility of the recorded conversation, it may C.C. No. 15/11 80 of 156 81 reiterated, I proper transcript prepared soon after the recording, in the presence of witness, affords an extra protection as against the allegations of tempering of tapes for it may be possible to erase the tape recorded conversation but not the transcript once prepared. As was noted in Ziyaddin Burhannuddin Bhukhari,s case ( supra) This operated as a check against tampering. They had been rightly used by the High Court only as corroborative evidence. It has already noted above that in this case the transcript is completely unreliable. This protection is also not available in this case to say that the tapes could not be tempered with.
Conclusion
96. I am of the view in the above given circumstance though it may be able to say that the microcassettes were sealed but considering that there had been no attempt to scientifically establish the voices of the all concerned and also that there are serious question about the audibility as well as intelligibility of the voices recorded, I am of the view it would be not safe to rely on the recorded conversation as one of the evidence to support the case of the prosecution. Thus I am completely keeping this piece of evidence out of consideration.
C.C. No. 15/11 81 of 156 82 Failure to connect the accused B.K. Gupta and Prem Singh with delivery of money by matching finger prints
97. The case of the prosecution is that the currency notes worth Rs. 25,700/ had been handed over to the Complainant by these two accused in two envelope. To establish that these two envelopes were actually handed over to the complainant, the investigating officer had sent them for comparison to CFSL with the fingers prints of the said two accused taken. The result was the fingers prints did not match.
98. It was stated by the witness PW5 Amit Dasgupta, complainant "After the travel agents left, Sh. Prem Kumar and Sh. B.K. Gupta along with Mr. Haldar came into my room. The money in two white envelopes was handed over to me after they had closed the door and pulled curtains. These envelopes were placed by them in my briefcase." Further he had deposed in the crossexamination "I do not recollect if I touched the envelope at any stage. The envelopes were taken by CBI officers but as it was big team I cannot say who were the officers."
C.C. No. 15/11 82 of 156 83
99. The trap lying officer PW6 Sh. Joshi had stated "We took in possession the brief case, two envelopes and both microcassettes were sealed separately with the CBI seal. Envelopes were sealed in one envelope."
100. PW10 Sh. B N. Jha the investigating officer in this case had deposed " I had sent two envelopes to CFSL for obtaining opinion whether finger prints thereon were of either accused Prem Kumar or accused B.K. Gupta or not. As per the opinion dated 30.06.1988 of CFSL shown to me in the examinationinchief, finger print expert had opined " Finger prints/palm prints Mark Q1 to Q4" were different from specimen finger/palm print Mark S1 to S4. The said CFSL opinion is Ex PW10/DB."
101. It may also be noted that there had been an effort gone into the forensic examination of the envelopes. It is stated in the report "The envelopes have been carefully examined for latent prints with scientific aids. Prints marked Q1 to Q4 have been developed from one of the envelopes with using NinHydrin technique and photographed."
C.C. No. 15/11 83 of 156 84
102. Meaning thereby that an important piece of evidence which could be there to support the case of the prosecution is not there. One may note if use of Ninhydrin leads to the development of the latent prints it means it can be said that in the positive or negative terms of the finger prints appearing match or do not match the finger prints of the suspect but in case of the absence of the prints it cannot be said that the document was not handled by anyone. Ld Author 5 David A. Crown writes in his article "The Development of Latent Fingerprints with Ninhydrin" : " It should be remembered that not all individuals excrete sufficient perspiration through the papillary ridges to leave identifiable latent finger prints. The use of Ninhydrin on a document does not guarantee the development of latent fingerprints even though it may be known that a certain individual has handled a document."
103. In the present case, it can be said with some amount of certainty that the two envelopes in question must have been handled by different persons before the same were seized by the trap laying officer. In other words, they must be having fingerprints of not one 5 The Journal of Criminal Law, Criminology and Police Science. North western University School of Law Vol.80 No.2.
C.C. No. 15/11 84 of 156 85 but many. In these circumstances, the absence of development of the fingerprints of the two accused cannot lead to the conclusion that they had not handled the two envelopes in question, though if the given fingerprints of the two accused herein had matched the latent fingerprints developed by the use of Ninhydrin, it would have gone a long way in establishing that the said two envelopes had been handed over by the two accused to the complainant.
104. Thus in conclusion it cannot be said since the latent fingerprints did not match the fingerprints of the above two accused, it cannot be ruled out the two accused above named never handled the two envelopes. In other word the CFSL report cannot be read either way. Position of Approver and that of the complainant
105.. Mr. Vasudev Sahjwani, who originally was an accused, had turned approver in this case. His confessional statement under section 164 Cr.P.C. was recorded on 15/03/1989 on an application filed by the IO on 06/03/1989. He was granted pardon under section 306 Cr.P.C. by an order dated 22/04/1989.
C.C. No. 15/11 85 of 156 86
106. According to the case of the prosecution Mr. Shajwani was part of the syndicate of travel agents which used to collect passports from the travel agents and present them in the office of POE and settle the amount to be paid as bribe to the staff. He was part of the discussion which took place in the office of POE with regard to the rate at which the payment was to be made. Part of the settled amount was given by one the travel agents Nand Arora ( Accused declared proclaimed offender) to Sh. B.K. Gupta in his presence and presence of other travel agents and Sh. B.K. Gupta had accepted this money in the presence of accused Prem Kumar, B. Haldar and N.K. Gupta.
107. It is now well settled that though as per Section 133 of Indian Evidence Act "An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice" but at the same time as per section 114 illustration (b) , Court may presume having regard to the common course of the human conduct "an accomplice is unworthy of credit, unless he is corroborated in material particulars." This one may qualify that with the observation made by C.C. No. 15/11 86 of 156 87 6 the Hon'ble Supreme Court " ..if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, it would be merely confirmatory of other and independent testimony." All that is required that there must be "some additional evidence rendering it probable that the story of the accomplice ( or complainant) is true and that it is reasonably safe to act upon it." At the same time it may noted that "the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another." And "the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime."
108. Therefore one may say that as far the testimony of the approver Sh. Sahjwani is concerned it would not be possible to rely on it unless it has been corroborated in material particulars by an independent source.
6 Rameshwar V The State of Rajasthan AIR 1952 SC 54 ( para 25 quoted from Baskerville's case [1916] 2 K.B. 658, 664 to 669. ) C.C. No. 15/11 87 of 156 88
109. Complainant too also cannot be said to be an independent witness. He is an interested/partisan witness. It was he at whose instance the case was registered and he had the major role to play in the trap. His position may not be that of an accomplice and thus there may not be a case to seek corroboration of his testimony in material particular and it may be sufficient seek corroboration in general about his testimony. In any case there is a requirement that his testimony be examined with care and caution. It would be apt here reproduce the law as laid down by the Hon'ble Supreme Court in case M.O. Shamsudhin Vs. State of Kerala, 1995 SCC (3) 351. After examining the previous judgments Hon'ble Supreme Court had laid down:
16. Now coming to the witnesses in trap cases, as held in Basawan Singh's case (supra) by a Bench of Five Judges, if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charge, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices in that sense but are only partisan or interested witnesses who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested which may vary from case to case and the corroboration in the case of such interested witnesses C.C. No. 15/11 88 of 156 89 can be in a general way and not as one required in material particulars as in the case of an approver.
Therefore in seeking corroboration for the evidence of trap witnesses a distinction has to be drawn where participation of an individual in a crime is not voluntary but is the result of pressure. In such a case the element of mens rea to commit the crime is not apparent and cannot strictly be classified as an accomplice and at any rate be treated as being on the same footing. Where bribe has already been demanded from a man and if without giving the bribe he goes to the police or magistrate and brings them to witness the payment it will be a legitimate trap and in such cases at the most he can be treated as an interested witness and whether corroboration is necessary or not will be within the discretion of the court depending upon the facts and circumstances of each case. However as a rule of prudence, the court has to scrutinise the evidence of such interested witnesses carefully.
17. Now coming to the nature of corroborating evidence that is required, it is well settled that the corroborating evidence can be even by way of circumstantial evidence. No general rule can be laid down with respect to quantum of evidence corroborating the testimony of a trap witness which again would depend upon its own facts and circumstances like the nature of the crime, the character of trap witness etc. and other general requirements necessary to sustain the conviction in that case. The C.C. No. 15/11 89 of 156 90 court should weigh the evidence and then see whether corroboration is necessary. Therefore as a rule of law it cannot be laid down that the evidence of every complainant in a bribery case should be corroborated in all material particulars and otherwise it cannot be acted upon. Whether corroboration is necessary and if so to what extent and what should be its nature depends upon the facts and circumstances of each case. In a case of bribe, the person who pays the bribe and those who act as intermediaries are the only persons who can ordinarily be expected to give evidence about the bribe and it is not possible to get absolutely independent evidence about the payment of bribe. However, it is cautioned that the evidence of a bribegiver has to be scrutinised very carefully and it is for the court to consider and appreciate the evidence in a proper manner and decide the question whether a conviction can be based upon or not in those given circumstances."
110. It may be that in the present case the complainant may not be the bribegiver but as per allegations he was being forced to accept the bribe, his position still remains of an interested witness as it can be said that he had deep desire that his staff be caught and thus interested in success of the trap.
C.C. No. 15/11 90 of 156 91 Can the testimony of approver be used to corroborate the testimony of the complainant or vice versa
111. As far the question as to whether the testimony of the approver can be used to corroborate the testimony of the Complainant is concerned I am of the view it cannot be done. The reason for it is simple, one would find that it had been clearly laid down by the Hon'ble Supreme Court in Rameshwars case ( supra) that the "the corroboration must come from independent sources". It was added "ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another". In other words the testimony of one accomplice cannot be used to corroborate the testimony another accomplice as it does not come from an independent source. To put it in the context of this case, the testimony of the approver, being not independent, cannot be used to corroborate the testimony of the complainant.
112. The answer to the other question if the testimony of complainant (an interested witness) can be used to corroborate the testimony of the approver, in my view it would depend on the question C.C. No. 15/11 91 of 156 92 if the court considers that the testimony of the complainant is standalone believable and acceptable to the court, it may use the testimony of the complainant to corroborate the testimony of the approver. In case, however, the court considers that testimony of the complainant itself requires corroboration, it cannot use the testimony of complainant for corroboration unless it itself has received corroboration from an independent source may not be on material particulars but on general terms which may make the testimony of the complainant credible.
Habitually accepting bribe and habitually accepting bribe to influence any public servant.
113. The public servant accused in this case have been charged under section Section 5(1)(a) punishable under section Section 5(2) of the Act and also for having habitually committing offences under section 161 IPC (accepting bribe from travel agents accused including approver) and under section 5(3) of the Act for habitually committing the offences under 162 (accepting bribe to induce any other public servantin this case, complainant) C.C. No. 15/11 92 of 156 93
114. Words "habitually" though has not been defined anywhere either in the Criminal Procedure Code or Penal Code or even in the Prevention of Corruption Act. It does, however, indicate repeated commission of same kind of offence over a period of time. This, however, needs to be clarified that word "habitually" as used in the provisions related to preventative detention, which do not in fact relate as much with the commission of crime but prevention of commission of crime, would carry a different meaning when it comes to using this word "habitually" related to commission of substantiate offences, which are subject matter of a criminal trial resulting in penal consequence. To make my point I would like to refer to the Judgment of the Hon'ble Orrissa High Court in the case Biswabhusan Naik vs The State Of Orissa, AIR 1952 Ori 289:
"46. The question, then, for consideration, is whether on the findings that I have come to on an independent consideration of evidence, the offence of criminal misconduct by a public servant has been made out. Under Clause (a) of Subsection (1) of Section 5 of Act II (2) of 1947, what is required to be proved is habitual bribe taking. What constitutes proof of habit, is not indicated anywhere in the Act, nor in any other legal provision in C.C. No. 15/11 93 of 156 94 this behalf. Our attention has been drawn for. an analogy to Russel on Crimes, Vol. I, 1923 Edn, p 247, wherein it is stated :
"a person can be found to be a habitual drunkard, if within twelve months preceding, he has been summarily convicted at least three times for any of the offences specified in relation to drink"
and also to p. 243 thereof, where it is stated for purpose of preventive detention on the ground of habitual criminality "a person cannot be found to be habitually criminal, unless the person has been at least three times previously convicted of the crime charged".
These provisions cannot furnish any real analogy for guidance in respect of an offence of habitual bribetaking under Clause (a), Subsection (3) of Section 5 of the Act; because, obviously it is not meant that only instances of previous conviction of bribetaking should be given in evidence, nor is there any particular sanctity attaching to the number three. Neither does Section 110 of the Cr. P. C. which, in its various clauses refers to habitual commission of certain classes of offences furnish any guide, because by that section mere reliable information that a person is a habitual offender in respect of certain specified offence without proof of the actual commission of those crimes, may be enough for action under Section C.C. No. 15/11 94 of 156 95 110 of the Cr. P. C. The only provision that may afford some guidance is Section 413 of the Indian Penal Code, which provides for enhanced punishment in the case of habitual receiver of stolen property. It has been held with reference to that section that in order that a person may be convicted under it, it must be shown that the offence of "receiving stolen property" has been committed on different occasions & on different dates, vide, 'QUEEN EMPRESS v. BALU RAM', 19 Cal. 190."
115. The sum and substance of it would be whereas under 110 of Cr.P.C. it may be possible to take action without the proof of actual commission of offence before but in cases like 413 Cr.P.C. and for that matter for cases under Section 5(1)(a) read with section 5(2) of the P.C. Act and Section 5(3) of the PC Act it would be necessary to prove that previously such offences had been committed on different dates and on different occasions. I would also like to add in order to establish that the accused had been accepting bribe habitually general allegation are not enough it is necessary that at least some specific instances are stated and proved. It may be noted that it is extremely difficult for court to make anything out of general allegations unless they are supported by some specific verifiable C.C. No. 15/11 95 of 156 96 instances. It would also be unfair to the accused to be convicted of habitually committing certain offences on general allegation as it would be nearly impossible for him to defend such allegations.
116. Overlooking, for a moment that the testimonies of complainant and the approver are creditable or not, one finds that there is no other specific allegation of demanding and accepting the bribe by public servant accused persons or accepting to bribe by them to induce the complainant, in the past.
117. I am reproducing the relevant part of the testimony of the main witness Sh. Vasudeo Sahajwani (approver) who was examined to prove the factum of staff of POE i.e. the public servant accused persons herein had been accepting bribe from them habitually. It reads as under:
"I can identify accused Sh. B.K Gupta, Mr. Halder, Om Parkash, Kishori Lal, J.P Sharma who are present in the Court. The remaining accused persons can also be identified by me as staff of POE. They used to charge from Rs.50/ to Rs.2,000/. This practice was going even prior to 1986. Earlier I used to resist this practice but the C.C. No. 15/11 96 of 156 97 result was that they did not do my work. I had no option either to close down the business or do as others do. On my visit to POE, I used to met other travel agents namely Sh. Nand Arora, P.S Duggal, Rajinder Rai, Satender, Kanhiya, Vijay Verma etc. On different occasions, I used to pay illegal gratification to the staff of POE. The main persons who used to take money from me were Mr. B.K. Gupta and Mr. Halder. My job was concerned with suspension section and not manpower. AT the time of raid the POE was Mr. Amit Dass Gupta. He was up right and honest person. Despite the fact that he has never accepted any money, still money used to be taken from me by above named persons. I used to make complaint to HOD against the above named accused persons whenever their demand used to be high. The HOD used to tell me to pay them as per their demand and report back to him the quantum I had paid. "
118. He had in the crossexamination of Accused No. 1& 2 stated "I used to pay bribe amount to officials of POE from 1983 till 19/04/1988 as I was compelled to pay because of work compulsions. Sometimes, officials of POE used not to charge bribe amount from me and sometimes they used to charge me. I cannot tell the dates when the bribe was paid and when the bribe was not paid and in which type of cases."
C.C. No. 15/11 97 of 156 98
119. One would notice here the allegations here are of extremely general in nature which are spread over four five years of bribes being paid by travel agents without any specific verifiable instances.
120. Similarly the testimony of the complainant is more or less confined to time when he had made complaint that he was being pressurized to accept bribe and his making complaint to CBI on 21/04/1988 which led to the conducting of raid and, according to the case of prosecution, recovery of money from complainant handed over to him by Accused Prem Kumar and B.K. Gupta. There is nothing beyond it.
121. In fact there is not even an attempt on behalf of the prosecution to prove any other specific instance of bribery as against the Public servant accused persons or there inducing the complainant to accept the part of the bribe collected by them from travel agents accused persons.
C.C. No. 15/11 98 of 156 99
122. On behalf of the defence there was one witness DW5 examined. He was posted as Protector of Emigrants in the same office in the year 1987. He had deposed " So long as I was posted as POE I had not received any complaint either against the accused Shri B.K. Gupta or Shri Prem Kumar." If the approver is to be believed that he had been bribing staff of POE then how do we disbelieve the testimony of this witness. If the approver was so much against payment of bribe, it is expected that he must have approached the higher officer at one point or the other. The testimony of this witness does contradict what has been stated by the approver even in general terms.
123. Thus there is no evidence to prove that any of the Public Servant Accused persons namely S/Sh. Prem Kumar, B.K. Gupta, Banmali Haldar, O.P. Sharma, J.P. Sharma and Kishori Lal had committed any offence under section 5(1)(a) Punishable under section 5(2) or Under section 5(3) of the Act read with section 162 of the Penal Code.
C.C. No. 15/11 99 of 156 100 Commission of offences under section 5 (1) (d) read with section 5(2) of the Prevention of Corruption Act and under section 161 and 162 of Penal Code
124. The allegation that the Public Servant Accused Persons have above offences is based primarily on the ground that there were recoveries of money made at their instance concealed at odd places ( see para 5 ) followed by the disclosure statements made by them. Apart from it a large sum of money was also recovered from the office which could not be accounted to anyone. There is nothing on record to establish who had paid this money to these accused persons. Even 7 to draw presumption under section 4 of the Prevention of Corruption Act it is necessary that " it is proved that an accused person has accepted or obtained or agreed to accept or attempted to obtained for 7
4. Presumption where public servant accepts gratification other than legal remuneration - (1) Where in any trail of an offence punishable under section 161 or section 165 of the Indian Penal Code (45 of 1860) or of an offence referred to in clause (a) or clause (b) of sub-section (1) of section 5 of this Act punishable under sub-section (2) thereof, 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 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 the said section 161, or as the case may be, without consideration or for a consideration which he know to be inadequate. (2) Where in any trial of an offence punishable under section 165A of the Indian Penal Code ( 45 of 1860) or under clause (ii) of sub-section (3) of section 5 of this Act, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or gave or offered to give or attempted to give hat gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 161 of the Indian Panel Code, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its option, so trivial that no inference of corruption may fairly be drawn.
C.C. No. 15/11 100 of 156 101 himself or for any other person any gratification ( other than legal remuneration) or any valuable thing from any person". I am prepared to go a step further to say since the recoveries effected were from odd places except in the case of O.P. Sharma where the recovery was made from his pocket and J.P Sharma at whose instance no recovery was made as he had left the office before the 8 raid, the burden can be shifted to accused under section 106 of the Evidence Act to prove how they got this money provided the prosecution is able to link the said recoveries to them.
125. All witnesses have stated that a lot of money was recovered form the office of POE but the manner in which these recoveries have been made leave a lot of scope for doubt. It was just not enough to say that the monies were recovered but also to prove at whose instance and how much money was recovered. Neither the independent witnesses nor the complainant has supported the case of prosecution in this respect.
8
106. Burden of proving fact especially within knowledge.- When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
C.C. No. 15/11 101 of 156 102
126. Both the independent witnesses had said nothing about the recoveries being made at the instance of the said accused persons in their examination in chief. Witness Baldev Raj had said nothing beyond " About Rs. One Lakh had been found by the CBI team." This witness was crossexamined and on persistent leading question to put to him in the crossexamination by the Ld Public Prosecutor he had admitted his signatures on various recoveries related memos. Not much of probative value can be attached to such a testimony. In any case when it came to the crossexamination on behalf of accused, he had deposed "It is correct when the recovery was effected by the trap team, I remained sitting in the room and only the amount was collected in that room. I was present in office room but I do not know whose room it was. I do not remember place of recovery at the instance of accused persons. ... ... ... . It is correct that I remained sitting in one room from beginning to end and I signed all the documents in that room only." This witness though denied the suggestion that no disclosure statement was made in his presence but that will not be of much value since it was made in the presence of the police officials. According to the case of prosecution he was C.C. No. 15/11 102 of 156 103 witness to recovery of money made from different places in the office, which was not possible if this witness kept sitting in one room only.
127. Similarly Like the above independent witness Sh. Baldev Raj the other independent witness PW3 Sh. Virender Tyagi too in his examination had deposed "Myself, Mr Joshi, the Sikh Gentleman and one Hindi Officer sat in the Hall of the office and they started bringing the recovered money which was placed on the table where we were sitting. So far as I recollect somebody came from the house of Mr. Haldar who was also made to sit there and thereafter I and some other persons went to the house of Mr. Haldar." This part of the examination was concluded on 01/07/2005, when he appeared on the next day when he appeared on 12/07/2005, he though did not say that the recoveries where made in his presence but improved his statement and added "At the pointing of the employees of POE different amounts were recovered from different places. CBI officials searched the office of POE and recovered different amounts from files /racks." He had then stated "I cannot identify any of the employees by face or by name. Some papers work was done at the spot and the money recovered was seized vide different memos."
C.C. No. 15/11 103 of 156 104
128. This witness was treated to be hostile to the case of prosecution and crossexamined by the Ld Prosecutor. There were leading questions to put to him and he was asked to identify his signatures on various recovery memos and also disclosure statements of the accused, which he did. But on the crucial question of his being witness to the recoveries, he had reiterated in his cross examination by defence "The recovery memos were prepared at the table where the money was brought and kept. It is correct that I had not personally seen from where that money was recovered."
129. The fact that the money was brought and collected at one table had been deposed by the complainant, which gives credence what has been stated by the independent witnesses. He had deposed "I remained in my office when CBI team was conducting searches and other related proceedings. The recovered amount was collected on a table in my office. I did not look into different proceedings being conducted by CBI officer though I was present in the office."
C.C. No. 15/11 104 of 156 105
130. Though the witnesses from CBI namely R.K. Joshi Trap Laying Officer and Shri S.K. Peshin Inspector have supported the case of the prosecution but in the absence of the recoveries being made in the presence of independent witness who had been called in only to ensure the fairness of the investigation is not questioned I am of the view it would not be possible to say beyond reasonable doubt that the recoveries were made at the instance of the accused persons namely Prem Kumar, B.K. Gupta, Banmali Haldar, O.P. Sharma and Kishori Lal. In other words the prosecution has failed to prove beyond reasonable doubt that they committed offences under section 161 or 162 IPC or under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act.
131. The case of J.P. Sharma stands on a bit different footing as according to the case of prosecution as well he was not at the office at the time of raid. It was admitted by the Trap Laying Officer himself "I do not remember if I made efforts to call Sh. J.P. Sharma during investigation which remained with me till 23/04/88, however, when the raid was conducted J.P. Sharma was found to have left office when we tried to check up his whereabout".
C.C. No. 15/11 105 of 156 106
132. There is no record of any disclosure statement made by him on 21/04/88 or anything being recovered from him on that day. The only record which has been produced is one memo under section 27 of Evidence Act dated 03/05/88 which relates the allegation of "amassing an amount of Rs.3 Lakhs by illegal means." Followed by some recovery of some Rs.5000/ stated to have been given as loan to one Santosh and 04/05/88 and some passbooks/ GPF books/ registration book of vehicle in his name, in the name of his father and other family members. There is nothing more to connect him with the present case. I am of the view, it is a case of no evidence against him. I accordingly conclude that the prosecution has failed to prove that the Accused J.P. Sharma had committed any offence under section 161 or 162 or Section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act.
Payment of 25,700/ to the Complainant by the Accused Prem Kumar and B.K. Gupta to the Complainant in two envelopes
133. This allegation is the basis of framing charge against these accused under section 165A of the Penal Code. There is no other C.C. No. 15/11 106 of 156 107 direct evidence to this effect except that of the Complainant. He was only person inside his room when this payment was allegedly made by the said two accused. As has already been noted above complainant is an interested witness in this case I am of the strong opinion that it would not be safe to convict Accused stated above only on the basis of testimony without first ascertaining if what this witness has stated can be said to have been corroborated at least in general particulars.
th Events of 20 April 88
134. First thing one would notice about his testimony is the th contradiction as to the events of 20 April 88. If one goes through the th complaint one would find that in the complaint it is alleged that on 20 staff had threatened to stop work unless the complainant agrees to accept his share of the bribe collected over the period since he had joined. He has stated in his complaint "They further told me yesterday that in case I do no accept the entire amount by today (April 21), no cases would be cleared by them." But in the crossexamination he C.C. No. 15/11 107 of 156 108 states "It is correct that on 20.04.88 there was a complete pen down strike in the office and no stamping work was done by the staff." If th there was strike on 20 then why was it not mentioned in the th complaint? It only states that on 20 staff had threatened to go on strike. Though the approver has stated that there was no work done th st on 20 by the staff of POE but at the same time he also says on 21 the agreement was reached between the travel agents as to what th st was the amount to be paid of 20 and 21 for the work done on those two days. It is not as if it was vague as to what amount was to be paid. There was a proper record maintained of the work done and at the end of the day how much bribe was to be paid. The approver Sh. Sahajwani states that he had been keeping the record of the bribe to th st be paid except for 20 and 21 April which was noted by Nand Arora as per the number of cases handed. He has stated "Record was to be maintained regarding the work of syndicate, payment on behalf of syndicate and dues on syndicate. Dealings of 20th and 21st April were recorded. I have not written dealings of these two days. It was written by Nand Arora and record would be available with him." If the staff was on pen down strike then how was it determined that as to what th th was to be paid for 20 April and as to how dealings of 20 were C.C. No. 15/11 108 of 156 109 th recorded. It is important to know what happened on 20 April 88 th because it is the events of 20 which setup ground for making st complaint on 21 April 88. As one can notice that there is no clarity if th there was strike on 20 because there was precipitating of situation by staff that unless they are paid bribe at a particular rate they will not st work (discussion in the chamber on 21 was according to the case of prosecution for settling the rate at which bribe to be paid), or because that unless complainant POE would not accept his share of bribe they would not work or there was no strike at all. In this hazy picture I am th of the view that it would not be safe to accept that on 20 April 88, complainant was approached by Sh. Prem Kumar and also B.K. Gupta that they would not work unless he accepts his share of bribe for 10 days of Rs.25,000/ without some amount of independent verification and there is none.
Purpose of discussion in the chamber of the Complainant
135. There is another major contradiction which shakes the case of prosecution and that is as to the purpose for which the discussion took place between complainant, staff and travel agents. According to the testimony of the complainant the dispute was with regard to share C.C. No. 15/11 109 of 156 110 st of bribe he was to be paid up to 21 April 88, since the day he had th joined ( 11 April 88). He had deposed "The travel agents expressed disappointment that the system had broken down so much that without paying bribes even normal work could not be done. They left the room on how much money was to be paid and since no bribe money had been taken by me since the first day I joined the total payment was to have been done on April 21,1988. Mr Rajji, one of the travel agents, said that the full amount was not available with them in cash at that time and the balance would be paid later."
136. As per the testimony of the approver Sh. Sahjwani the issue was not how much was to be paid to the complainant as his share for the period he had joined but it related to the payments to be made to th th the staff for the work of 20 and 21 for the bribe had not been paid th for. He had deposed after referring to previous day i.e. 20 April when the staff is stated to have stopped work because the complainant was not accepting his share of bribe "Next day same story was repeated, when I went in the evening to collect the passports, the work was not done and the issue involved was of bribe money which had not been paid a day before. This issue was raised in the chamber of POE in C.C. No. 15/11 110 of 156 111 his presence. Then I strongly protested that they have no business to ask me for money because all the conditions laid down for suspension as well ECNR were fully met as per guidelines written on notice board POE." The witness thereafter deposed why there was no justification to take bribe some other cases as well and the participation of B.K. Gupta , Halder and Prem Kumar and the complainant asking him to settle this matter with them directly. After he spoke about the presence of Rajinder Rai, T.S. Duggal and Nand Arora being present, he had stated " As we have no option, we fulfill their demand of illegal gratification and after that they did their job and gave me passport. For the job of 20 and 21 April 1988 we were th st to pay an amount of Rs.37,000/ to the accused persons. We paid Rs.27,000/ to B.K. Gupta and Halder on 21.04.1988 as we were short of Rs. 10,000/ and promised to pay the balance of Rs.10,000/ next day.
137. There is still another version what transpired during that meeting. There are two statements of the complainant recorded in this case under section 161 CrPc during investigation. One of 27/04/88 and other of 15/07/88. In the statement of 15/07/88 it is stated " one of the major points of dispute was with regard to 12 C.C. No. 15/11 111 of 156 112 ECNR cases in which POE staff and travel agents could not arrive at mutually acceptable amount. The POE's staff contended that since the cases were of relating to employment the rate should be higher This led to great deal of animosity which was resolved by agreeing to lower rates. .. .. .. " It continues " After rates were finally decided the travel agents Sahajwani Rajji Rai in the presence of Shri Duggal and Arora informed me that the total payment of April 20 and 21 was Rs. 41,460/. They were not in position to pay amount entire in cash on April 21 as they were not carrying that amount with them. They were able to pay only 37,400/ on April 21 and next morning by 10 O Clock they would bring remaining amount in cash. After this the travel agents left the premises. Thus as per this statement u/s 161 Cr.P.C. the amount which was offered to be paid by the travel agents was not Rs. 27,000/ as sought to be made out in the statement of the complainant in court.
138. In the statement recorded of approver Sh. Sahajwani still there are some differences as to what happened in the said meeting. According to this statement the subject matter of dispute were not only ECNR cases but also groups cases of artists who were to visit Bahrain. In the ECNR cases B.K. Gupta, Mr. Haldar and Prem C.C. No. 15/11 112 of 156 113 Kumar were demanding Rs. 500/ per case not on the ground that these cases related to "employment" as stated in the above statement of complainant under section 161 Cr.P.C but because "applicants were not present themselves". It is stated in this statement " To this Mr B.K. Gupta , Mr Haldar & Prem Kumar combinedly told me that they have every reason to demand Rs.500/ for each case because the applicants to whom passports belonged are not present and the same are being represented by their agents." For the cases related to artists the request was made from the side of agents that the same should be done free. The bribe was still demanded by saying that agents were not doing it free. It is stated "
Even these cases they were adamant and argued with us that since we are not providing free service to our clients & must have charged, hence they will take the money and will not do the cases free. Ultimately we agreed to pay nominal amount of Rs.500/ for group of artists." He also did not say that the total amount demanded was Rs. 41,460/ which was brought down to Rs.37,000/ with the intervention of POE. He had stated in this statement "On 21/04/88 we got the work done and at about 5 'O' Clock the total bill came to Rs. Thirty thousand, this bill related to 20th as well as 21st April."
C.C. No. 15/11 113 of 156 114
139. Considering the above set of contradictions it would be equally unsafe to rely upon what is stated to have happened during the heated discussion complainant had with agents and his staff. Different figures given of Amount of money recovered from the Briefcase
140. There are a number of contradiction with regard to the amount having been given to the Complainant. In the statement made by the complainant under section 161 Cr.P.C. dated 15/07/88 this figure has been mentioned as " 25,400/, in his own statement under section dated 27/04/1988 he had given this figure to be Rs.25,700/. The best evidence of the prosecution i.e. transcript and the recording of the conversation also gives a completely different figure. In the transcript it is recorded when the complainant asked B.K. Gupta what is the amount. He had stated "Twenty seven thousand four hundred". After the TLO had entered the room of the complainant, he had asked what was the amount. He had informed by the complainant "twenty seven thousand four hundred". I have counted the currency noted in the recovery memo Ex PW2/A and have found them to be 25,400/ and not Rs.25,700/ as claimed by the prosecution.
C.C. No. 15/11 114 of 156 115 Contradiction as to the reason for the payment of money
141. To an extent it has already been noted above that according to the complainant matter discussed in the chamber related to the payment of bribe arrears since the time he had joined and according th st to the approver it was settling the amount to be paid for 20 and 21 April, 88. Let us look at it further.
142. In the recovery memo Ex PW2/A it is mentioned when the TLO asked "Shri A Das Gupta told that the money offered by the two accused persons has been kept in a brief case and it was stated to be Rs.25,700/ which was share from 11th April 1988 till date for him, out of daily collection of bribery." I have gone through the transcript carefully, which though cannot be used against the accused but certainly can be used against the case of the prosecution because the prosecution cannot deny its truthfulness. The complainant too had admitted the same to be correct. If I translate in English the relevant part of transcript Ex PW10/4 it would read:
C.C. No. 15/11 115 of 156 116 Complainant: What is the amount?
B.K. Gupta : Twenty seven thousands four hundred. (Thereafter complainant puts the said white envelope containing the bribe amount containing the bribe amount given by Sh. B.K. Gupta in his briefcase.) Complainant: Sahajwani had informed me today that today you have less money. Tomorrow pay the balance. (Looking towards Prem Kumar) Okay what should be done with the money so received?"
143. This part of the transcript gives a clear indication that the money given to Sh. Dasgupta i.e. complainant did not have any relation with the so called share of bribe received by staff during the th st period from 11 April to 21 April but was probably the money which was stated to have been passed on to B.K. Gupta by Travel Agents after this amount was settled in the room of the complainant and this amount was deliberately shown to be less i.e. instead of Rs. 27,400/ to Rs. 25,700/ to suit the allegation of the complaint that he was offered to be bribe of Rs.25,000/ ( approximately). One thing more C.C. No. 15/11 116 of 156 117 if the case of the prosecution is to be believed, once the complainant had agreed to accept the share of bribe, there was no reason for the accused B.K. Gupta to have concealed the exact figure in the envelopes. In the given circumstance there is a serious question mark on the integrity of the recovery memo Ex PW2/A, itself. It also means probably the money allegedly paid to him was not any share th st but the entire collection for 20 and 21 April, 88. No proper search of the room of the Complainant before the actual operation and the act of sending the independent witness out by the complainant
144. There is a statement of the independent witness PW3 Sh. Virender Tyagi who had stated in his examination in chief "since some other employees were also available in the office room of POE, therefore, I have not searched the office completely." In the cross examination by the Ld. PP for CBI he had stated "It is incorrect to suggest that Sh. S.K. Peshin was directed to conduct the search of the office of Sh. Amit Dass Gupta in my presence." It is followed by another statement by this witness in the crossexamination conducted on behalf of the accused persons "It is correct that while leaving the C.C. No. 15/11 117 of 156 118 CBI office I was asked to remain with POE and watch the proceedings. It is correct that POE had told me to leave the office as the employees may not come in my presence as they may become suspicious."
145. The impact of the above statements is that there was no proper search of the room of the complainant in the presence of Sh. Tyagi and Sh. Tyagi himself was asked to go out of the room by the complainant though there was an instruction that he was to be allowed to remain in the room of the complainant so that he may witness the payment, to be made to him, by the accused Sh. B.K. Gupta and Halder.
146. The above statements of Sh. Virender Tyagi independent witness in my view certainly do not strengthen the case of the prosecution because the very purpose of Sh. Virender Tyagi being associated with the investigation as an independent witness was to ensure that the investigation conducted was fair and there was no possibility of false implication of the accused persons. In other words, on the other hand, it has not only weakened the case of the C.C. No. 15/11 118 of 156 119 prosecution, but has also opened it to the attack that perhaps the money was already lying with the complainant and, thereby, had himself placed the money in the briefcase from which it was stated to have been recovered.
No firm support from the independent witness
147. There is also no firm confirmation from the independent witnesses as to the recovery and also the identity of the accused Sh. Prem Kumar and B.K. Gupta.
148. Sh. Baldev Raj and Virender Tayagi are both witnesses of this recovery and signatory to recovery memo. Baldev Raj has not supported the case of the prosecution outright in this respect. Baldev Raj PW2 had stated in his examination in chief " I do not remember money was also recovered from the brief case." In the cross examination by Ld Prosecutor he had deposed " it is incorrect that in my presence CBI team questioned the complainant how he has received that money and told that B.K. Gupta and Prem Kumar came together and handed over the bribe amount of Rs.
C.C. No. 15/11 119 of 156 120 25,700/." The testimony of the other independent witness PW3 Virender Tyagi also does not take us too far. In his examinationin chief he had deposed " During the proceedings the POE produced two packets of GC notes containing in an envelope telling CBI officers that the same were offered by employees of POE." He had further stated " I cannot identify any of the employees by face or by name." He was crossexamined by the Ld Prosecutor of CBI. On the suggestion given to him he had stated " It is correct that an amount of Rs.25,700/ from a briefcase containing two white envelopes and recovery memo Ex PW2/A was prepared which bears my signature at point B." He also stated "It is correct that POE told that two employees came to him and one of them handed over the bribe amount of Rs.25, 700/ to him." But then he refused to identify accused Prem Kumar and B.K. Gupta as the said persons who had given the money to him. He had stated "It is incorrect to suggest that I am deliberately not telling the name of Prem Kumar and B.K. Gupta who handed over the bribe amount to POE. ... ... .... . It is incorrect to suggest that I am not deliberately identifying accused persons C.C. No. 15/11 120 of 156 121 Prem Kumar and B.K. Gupta. I do not remember that on interrogation both of them admitted to have given the bribe as it was in the office to collect money from agents for giving immigration clearance."
149. I am, therefore, of the view that the testimony of the witness Shri Amit Dass Gupta (complainant) does not find corroboration even in general terms so that it could be relied upon. It may also be noted that there is no evidence available besides the evidence of Shri Amit Dass Gupta to convict the accused herein, namely, Shri B.K. Gupta and Shri Prem Kumar for their conviction under section 165A IPC. I am of the considered opinion that it would be absolutely unsafe to convict the said accused persons on the basis of the testimony of the witness Shri Amit Dass Gupta. In other words, it can be said that the prosecution has failed to prove its case beyound reasonable doubt that the accused Shri B.K. Gupta and Shri Prem Kumar committed offences punishable under section 165A of the Penal Code for abetting the complainant for committing the offence under section 161 IPC.
C.C. No. 15/11 121 of 156 122 Commission of offence under section 165A of Penal Code by the Accused Rajinder Rai.
150. Accused Rajinder Rai is one of the travel agents like the accused Vasudeo Sahjwani Approver. He has been charged under section 165A of the Penal Code with the allegation he had abetted the Public Servant Accused persons Viz. Prem Kumar, B.K. Gupta, Banmali Haldar, Kishori Lal, Om Prakash Sharma, Naresh Kumar Gupta and J.P. Sharma in commission of the offence under section 161/162 and section 5 (1) (a), 5(1)(b) read with section 5(2) and 5(3) of the Prevention of Corruption Act.
151. In so far as the question of abetting the commission of offence under section 5(1)(a), Section 5(1)(b) read with section 5(2) of Prevention of Corruption Act and Section 5(3)(i) is concerned they relate to habitually commission of offences as mentioned therein. For the accused Rajinder Rai, implication would be that he had been habitually paying illegal gratification to Public Servant Accused persons herein as envisaged under section 161 of the Penal Code and Section 5(1)(b) of the Prevention of Corruption Act and had been C.C. No. 15/11 122 of 156 123 habitually accepting bribe from others to induce the Public Servant Accused Persons as envisaged under section 162 of the Penal Code. It has already discussed above what "habitually" would mean in the context of the provisions of the Penal Code and the Prevention of Corruption Act. Apart from the allegation of formation of a syndicate as deposed by the Approver there is not a single verifiable instance referred where the accused Rajinder Rai can be said to have paid illegal gratification to any one in the past except there being one allegation of his being in the chamber of the complainant where rate at which the bribe to be paid had been settled and on its basis the calculation was made by which the payment to be made was Rs. 37,000/ and since they were short of that amount by Rs.10,000/ Rs. 27, 000/ had been paid in his presence and presence of other travel agents including approver to B.K. Gupta one of the travel agents Nand Arora. A single instance will not make habit, therefore, it cannot be said that Rajinder Rai committed offence under section 165A for abetting the other accused for committing offences under section 5(1)
(a) and (b) read with section 5(2) and Section 5(3) of the Prevention of Corruption Act.
C.C. No. 15/11 123 of 156 124
152. As far as the allegation of payment of bribe of Rs.27, 000/ to Sh. B.K. Gupta is concerned there is no other witness examined except the approver Sh. Vasudeo Sahajwani where he had stated "For the job of 20th and 21st April 1988 we were to pay an amount of Rs. 37,000/ to the accused persons. We paid Rs.27, 000/ and promised to B.K. Gupta and Haldar on 21.4.88 as we were short of Rs.10, 000/ and promised to pay balance of Rs.10, 000/ next day. When the amount was settled myself and my other colleagues named above were also present. On the day giving the money B.K. Gupta and Haldar were present and other were in their respective rooms and not there." Part of the same examination would show other colleagues here meant T.S. Duggal, Nand Arora and the Accused herein is Rajinder Rai.
153. It has already been discussed above that this is a version of an approver and thus cannot be accepted as such without some independent corroboration and there is none.
154. Other part of the evidence of the prosecution which connects this accused with this case is the conversation which took place in the chamber of the complainant. There are two witnesses of the said C.C. No. 15/11 124 of 156 125 conversation one is the approver and the other is the complainant. It has also been already noted above that the version of the complainant itself has failed to meet the probative standards as failing to get corroboration even in general terms. Thus it cannot be used to corroborate the testimony of the approver.
155. In any case it has already been noted above ( para 140) that is no clarity as to what transpired during the conversion in the chamber of the Complainant. There is another dimension to it, the cross examination of the complainant and as well as approver Sh. Sahajwani tend to show as if travel agents were there primarily to protest about the bribes being demanded by the staff. It was stated by the Complainant Sh. Amit Dasgupta in his crossexamination " It is correct that on 20.04.1988 there was a complete pen down strike in the office and no stamping work was done by the staff. It is also correct that on 21.4.88 the travel agents, who had come to me, had come to complain about the staff of my office taking money from them. It is correct that during the conversation that took place between me and the travel agents, it was revealed that the travel C.C. No. 15/11 125 of 156 126 agents were not wiling to pay the money but they were being forced to pay to the staff of POE." Similarly the approver Sh. Sehjwani in his crossexamination has stated "It is correct that no travel agent pay bribe to the officials of POE. They were forced to pay bribe to POE official under duress. All travel agents were not protesting about payment of bribe to the official of POE but some of agents were protesting. Me and Rajender Rai were leading protest against payment of bribe and met Mr. Amit Dass Gupta. It is correct that before Amit Dass Gupta, me and Rajender Rai were mainly pleading on behalf of all the travel agents against payment of bribe to POE officials. It is correct that the syndicate formed and referred in my statement was for making protest against the illegal demand of the official of POE by making a complaint to Sh. Amit Dass Gupta."
156. In the view of the above testimonies and the fact that testimony that there was a payment of Rs.27,000/ had been made to Sh. B.K. Gupta on behalf of travel agents comes from the approver without any corroboration and therefore cannot be relied upon as such, it can be said that the prosecution has failed to prove that the Accused Rajinder Rai has committed offence under section 165A of the Penal C.C. No. 15/11 126 of 156 127 Code for abetting the other accused for commission of offences section 161/162 IPC.
Charge of Conspiracy
157. All the accused herein in this case have been charged under section 120B IPC read with section 161,162,165A IPC and Section 5(1)(a) and (d) read with section 5(2) and Section 5(3) of the Prevention of Corruption Act, 1947.
158. It is possible to convict an accused for conspiracy though he may have been acquitted of substantive offence for conspiracy as conspiracy is an independent offence in itself. At the same time one may note that direct evidence for conspiracy is hardly available. In this case also there is no direct or independent evidence available to prove the charge of conspiracy. The evidence available to prove the conspiracy is the same which is available to prove the substantive offences. Therefore, to say as to whether the charge of conspiracy stands proved would depend upon the fact if the prosecution has been able to prove leading to the commission of the substantive C.C. No. 15/11 127 of 156 128 offences. I am certain if the prosecution had been able to prove the substantive offence by the accused persons for which they have been charge there would not have been any difficulty in reaching the conclusion that there had been conspiracy among the accused to commit those offence as those offences could not have been committed without there being a conspiracy among the accused persons. The fact is, that the prosecution has not been able to prove the commission of substantive offence against any of the accused and therefore on the same evidence the accused cannot be convicted of having committed offence of criminal conspiracy under section 120B of IPC. I accordingly hold that the prosecution has failed to prove that the all the accused herein had committed the offence of criminal conspiracy punishable under section 120 B IPC. Sanction of Prosecution
159. I have gone through the order of sanction and also statement of witness PW1 Dr. A.K Chanda who had accorded sanction for the prosecution of all accused except that of the Accused Prem Kumar for whom President of India was the sanctioning authority.
C.C. No. 15/11 128 of 156 129
160. There was no question put to this witness on behalf of the Accused B.K. Gupta.
161. In the crossexamination of accused Prem Kumar also there is nothing of substance asked which may lead to the conclusion that the sanction accorded for his prosecution was not valid. He had simply stated to the questions put to him that he did not remember if the request received from CBI for accorded sanction was composite for him and other accused persons ; he did not recall if any Vasudev Sahajwani had been accorded pardon in this matter and he did not remember what were the papers that were sent by CBI.
162. The crossexamination of the witness on behalf of the Accused Shri Banmali Halder not go beyond giving suggestion that witness was not competent to accord sanction as he was not even competent to appoint him.
163. There is not much substance in the crossexamination on behalf of the Accused Kishori Lal and N.K. Gupta. The question put C.C. No. 15/11 129 of 156 130 to him are like, if the witness had personal knowledge of the trap; whether Amit Dasgupta informed him of the malpractices prevelant in his office or he had informed of the complaint he had made to CBI; whether he had held any independent inquiry into the matter and that as to whether it was in the knowledge of the witness that father of the complainant was also in the business of Tour and Travels and he used to visit of POE. These questions were replied to by the witness and none of those question challenge competence of this witness to accord sanction of prosecution or its validity.
164. The crossexamination on behalf of the Accused J.P. Sharma is mainly on the line that there was separate case registered against the accused on the basis of some money recovered from the house of the accused, reference to which is also there in the sanction order and in that case accused already stand acquitted. There is also in focus some difference in the amount mentioned in sanction order was Rs. 34950/ and according to CBI report the amount recovered was Rs.39495.
C.C. No. 15/11 130 of 156 131
165. There is also nothing of substance in the crossexamination on behalf of the Accused Shri O.P. Sharma to seriously challenge the sanction accorded by this witness. The questions put to him broadly were, if he knew number of FIR registered against the accused and if he had called the accused before granting sanction; whether he had initialed the documents presented to him for according sanction. The suggestion put to him were that he had signed on the draft sanction order supplied and accord the sanction without the application of mind. The same had been denied by the witness.
166. One may note that there is presumption attached to such 9 sanctions under section 114 illustration (e) that it was an official act which was regularly performed. It was for the Accused to rebut this presumption which they in my view have failed to discharge.
167. It has been argued that the sanction was without the application of mind and in its support some judicial precedents have also been cited. I would like to make it clear that the according sanction is an 10 administrative function and not even quasi judicial function . 9 114(e) That Judicial and official acts have been regularly performed. 10 State of Maharastra and other Appellants V Ishwar Piraji Kalpatri and others, C.C. No. 15/11 131 of 156 132 Therefore it cannot be expected to be expressed in a manner a judicial order or quasi judicial order is expected to be written. It may be noted " A sanction order could be drafted by any one in the office even by Law officer kept for that purpose. The sanctioning Authority is only required to go through the order, fully satisfy himself that what has been stated is accordingly to that and if he finds it alright he 11 could sign it and that would be a perfect legal sanction. " For according the sanction it was not necessary to say, by an elaborate discussion that as to how he was satisfied that it was a case where the sanction should be accorded so long as he had independently taken a decision without being influenced by anyone. Once he had said in his examinationinchief " I had gone through the material that had been sent with request and thereafter reached a satisfaction that the said public servants should be prosecuted and thus granted sanction for their prosecution as per my order dated 14.6.89, which is Ex.P.W.1/A, running into three pages and which bears my signatures." there is no reason to doubt that he had according sanction without satisfying himself on this account or going through the record.
Respondents 1996 CRI L J. 1127 (1) - para 17 11 Nareshkumar Kikabhai Tansdel V State of Gujrat 1986 CRI L J 457 C.C. No. 15/11 132 of 156 133
168. I accordingly hold that the sanction accorded in this case for the prosecution of the Accused Persons are in order. Pleas of Defence
169. Though I have already given the findings above that the prosecution had failed to prove its case against the accused as charged but still I consider it necessary to discuss the defences raised by the accused persons on their own merit. Plea of alibi Defence of the Accused N. K. Gupta st
170. Sh. N.K. Gupta in his defence has stated that 21 of April 88, he was on leave in connection with the marriage his cousin (sister th named Radha) which took place on 19 of April 88, and not in the office and that he has been falsely implicated in this case. To establish this fact he had examined his cousin Smt. Kamlesh as DW1, one of his friends Shri Rajesh Kumar Garg as DW2 and landlord of the house Shri Gian Prakash Gupta as DW3, where he was residing as the tenant at the relevant time. Sum and substance C.C. No. 15/11 133 of 156 134 of their testimonies is that Accused N.K. Gupta did not go to office th st from 19 to 21 of April, 1988 and he was at home because of the marriage of his cousin. He had made all arrangement of this marriage. Cousin to be married had only sisters and no brother. Her father also used to remain sick, therefore, he was the only male member to look after not only all the arrangements but also be part of all marriage related functions as her brother. On the fateful day i.e. 21/04/88 he was at home at about 8/8.30 PM. In the evening he was taken away by two men in plain cloths at the time when dinner was being served to husband of the newly wed cousin and family of her inlaws.
171. DW1 Smt. Kamlesh cousin of the accused Naresh Kumar Gupta had deposed referring to her newly married sister Radha "On 21st of April Sh. Naresh Kumar had gone to bring her back from her Sasural for pagphera. He must have returned with her at about 4 or 5 P.M. Along with my sister had also come her husband and her other relatives from the sasural side like her brotherinlaw etc. They were all served dinner on the night of 21st April. From 19th of April to 21st of April, 1988 Sh. Naresh Kumar Gupta was at home only and C.C. No. 15/11 134 of 156 135 there was no question of his attending the office as he was to take care of everything. In the evening when the dinner was being served at about 8 or 8.30 P.M, two persons had come in plain clothes. They had asked Sh. Naresh Kumar Gupta to accompany them to the office."
172. She had further stated in the crossexamination "It is incorrect to suggest that on 21.4.1988 was in office and he was caught by the CBI officials in his office and he was brought home and the search of his house was conducted and thereafter taken back."
173. Similarly witness DW3 Sh. Gyan Prakash Gupta had stated "On 21st of April, 1988 at about 8 or 8.30 P.M two persons had come in plain clothes and they were inquiring as to whether Sh. Naresh Kumar Gupta was residing in the same premises or not. I had informed them that Sh. Naresh Kumar Gupta was residing in the same premises. I had confirmed from Sh. Naresh Kumar Gupta by asking him that there were two persons who have come to make inquiries about him. Sh. Naresh Kumar Gupta was residing on the first floor. After I had confirmed with him, Sh. Naresh Kumar Gupta C.C. No. 15/11 135 of 156 136 had asked me to inform those persons that they could come over and meet him. They had accordingly gone to the first floor and I had also thereafter gone to my own room. After about half an hour or something I had noticed that Sh. Naresh Kumar Gupta was going out of the house along with those two persons."
174. It may noted that plea of alibi once accepted by the Court puts an accused in an invincible position. It means nothing but honorable acquittal irrespective of the evidence which has been brought by the prosecution for it is based on the premise that the accused is truly innocent. Obviously the fact as to where the accused was at the commission of crime can only be in his knowledge and therefore he is required to prove that in any manner he could not have been at the scene of crime as he was somewhere else. Since for establishing the plea of alibi the accused is not required to touch upon the merits of the allegation of commission of offence, if accused discloses at the earliest opportunity that he was not present at the scene of crime and was some where else the constitutional guarantee that an accused cannot be forced to be witness against himself is not violated at the same time it also gives an opportunity to the investigation agency to C.C. No. 15/11 136 of 156 137 cross verify these facts. Even where it is not disclosed at the first opportunity it may not vitiate the defence of the accused as such but surely lessen the weight of the evidence which is brought In later to prove the plea of alibi.
175. In this case the accused was arrested on 21/04/88 produced in Court 22/04/88 and there was an application for bail moved on his behalf where in it was stated in para no. 7 :
"That nothing incriminating was recovered from the possession of the applicant/accused or at his instance even the house of the petitioner was searched by the CBI on 21.4.88 itself, but nothing incriminating could be recovered from his house and there is no direct evidence with the CBI which could connect the applicant/accused with the alleged offence."
176. One would notice neither in the testimony of DW1 i.e. the cousin of the Accused nor in the testimony of the other witness DW3 the landlord of the accused it is stated that the house of the accused was raided by CBI. Both them have only stated that the accused was taken away by two persons. There is not a word about the raid being C.C. No. 15/11 137 of 156 138 conducted. In fact as noted above DW1 had denied the suggestion that any raid was conducted, in fact she had stated that she came to know of the case after about threefour day. Noticeably there is no plea in this bail application that the accused had not attended on the day of the raid and was at his residence till about 8/8.30 PM. I also find it a little strange that two person visit the house take away the accused, he is not seen thereafter and there are no questions raised particularly when he was the most important person in the entire marriage and nothing moved without him. According to witness DW1 once the accused had left they had resumed entertaining the guest. She has stated " He had left along with them and thereafter we had started taking care of the guests. The guests had returned along with my sister. My brother Naresh Kumar Gupta,however, did not return that night." It appears to be highly improbable in the given circumstances. It only means that she has been concealing the truth. I also find it very hard to accept that on the one hand there is an admission of raid being conducted in the application of bail where nothing incriminating was stated have recovered and on the other hand it is claimed that there was a party being hosted on the same day around the same time at the residence of the accused.
C.C. No. 15/11 138 of 156 139
177. There is one more reason I am not prepared to accept this version of the witnesses and that is, the defence witnesses herein are all interested witnesses there is neither any corroboration in material particulars nor in general terms available to trust their statements. I would have liked some independent corroboration before accepting there testimonies.
178. The Ld defence has drawn attention of this Court as to the fact that in the attendance book every where while marking his attendance accused has signed/initialed but the spaces for marking th th attendance for 19 and 20 April 88 are blank and someone had put st letter 'P' in his attendance of 21 . According to him, if accused had st been in office on 21 like any other day he would have initialed and not marked "P". The accused could have clinched this issue by calling for his application for leave which he may have submitted or could have called for his leave account record. It may a reason to raise a few eyebrows but not sufficient to jump to the conclusion that accused was not in the office at the time of the raid in the overall circumstance discussed above.
C.C. No. 15/11 139 of 156 140
179. In view of the foregoing discussion and facts and circumstance of the case I conclude that the Accused N.K. Gupta has failed to establish his plea of alibi.
False implication of the accused persons by the Complainant so as to remove them from his way as an action like this will put the staff come to replace them would follow his line to accommodate his father who was in the same business of airlines.
180. In his own words Ld. Defence Counsel Sh. Manoranjan had submitted before the Court "The prime reason for POE to be in a hurry to get the trap laid against his own junior officials was simply to remove them from his was so that new officials could come over there who under the fear of what has happened earlier would toe his line and accommodate his father who was in the same business of Airlines (admitted by Sh. B.N. Jha, the father of the complainant was also in the Airline business.) The POE must have realized within few days that as these officials are old enough and procedurally also knowledgeable, it would not be possible for him to make them do what he wants and, therefore, he took this way of making a complaint against them for pressuring them to accept bribe."
C.C. No. 15/11 140 of 156 141
181. This defence in my view does not cut much ice. First of all it was the Complainant Amit Das Gupta witness PW5 who was the best person to have answered all the questions in this respect and there was not a single question put to him in this respect. Fact of the matter is that inspector B.N. Azad in the course of recording the statement of this witness had asked him about it and he had replied as follows:
"My father has been in Airlines business for the last 45 years and was Sales Manager, Lufthansa, Calcutta. Subsequent to my transfer to Delhi, as I am the only child, my parent moved Delhi. Being worked for so many years in the Airlines, he continued to work for reputed Airlines Co. and their background and nature did not require any assistance from me. At no stage did I encourage my father to visit POE office for clearance or request any officer in the POE to consider his illegal cases. My father is at present 69 years old."
182. Even the questions put to Sh. Jha were not on the line submitted by him but were like this: " It is wrong to suggest that the bribe amount had been arranged by the father of complainant."
C.C. No. 15/11 141 of 156 142
183. There was also some submission made that there was some criminal case pending against the father of the complainant that too has remained unsubstantiated.
184. I accordingly conclude that the accused have failed to establish that they been falsely implicated on this account. Double jeopardy
185. There is a submission made on behalf of accused Banmali Halder, Kishori Lal, J.P Sharma and Om Prakash Sharma that the accused Banmali Halder against whom case R.C No.21(A/88 DLI was registered for the recovery of Rs.1,64,000/ from a briefcase found to be lying at his house and he has been acquitted in the said case by the judgment of Special Judge (CBI), Delhi, dated 13.10.1999. Similarly, there was a case registered against accused J.P Sharma vide R.C No.19(A)/88 DLI for being in possession of assets disproportionate to his known sources of income in which the same material, as used in this case was relied upon. Also on behalf of the accused Om Prakash Sharma it was submitted that against him also C.C. No. 15/11 142 of 156 143 there was a case registered for being in possession of assets disproportionate to his income after having been fond in possession of Rs.34,950/ at the time of search of his house and the said case to have resulted in acquittal. It has been submitted on behalf of the accused persons that since the material relied upon in the said case and in this case is same, therefore, for being prosecuted in this case on the basis of the same material is against constitutional guarantee granted under Article 20(2) of the Constitution of India.
186. I do not find any force in the above submissions made on behalf of the accused persons. The present case registered against the accused persons is for prosecution under completely different provisions of the Act than the prosecution of the accused which had been sought in other case. It may also be noted that the scope of a case registered for being in possession of assets disproportionate to the known sources of income is tried completely on different considerations than involved in this case. The submissions made by the Ld. Defence Counsel is far fetched and I am not inclined to accept the same.
C.C. No. 15/11 143 of 156 144 Submission with regard to non production of currency notes allegedly recovered from the accused Om Prakash Sharma
187. It has been submitted on behalf of accused Om Prakash Sharma that the case property i.e the currency notes stated to have been recovered had not been produced by the prosecution to prove its case. The same does not appear to be factually correct. The testimony of witness PW3 would show that the said currency notes had been produced and shown to the said witness and they were exhibited as Ex.P4. Reference to these currency notes can also be found in the testimony of the Trap Laying Officer Sh. R.K. Joshi where he had stated "The recovered money from accused Om Prakash Sharma is collectively already exhibit as Ex.P4." Thus, the submission made by the Ld. Defence Counsel in this respect is factually not correct.
The approver was lured into deposing against the accused persons.
188. It has been submitted on behalf of the accused persons that it is a matter of fact that the approver PW4 Vasudev Sahijwani did not C.C. No. 15/11 144 of 156 145 have any license and he got the license only subsequently. It is further submitted that as per his own admission he had got this license subsequently in the year 198990 for sending persons abroad which only shows that he became approver only after inducement and allurement given to him to depose in favour of the prosecution. To sum up in brief according to the submissions made this witness turned approved only after an inducement was given to him that he would be given a license "for sending persons abroad" which he did not have before. It was submitted that in the light of the judgement of Hon'ble Supreme Court in the case of Swaran Singh V/s State of Punjab 1957 SCR 957 is testimony is unreliable and cannot be accepted.
189. I am not inclined to accept this submission of the defence for the simple reason that it is based on certain broad assumptions without really bringing anything on record which may connect the two facts that this granting of license to him and his turning approver had any connection. To my mind the submission made is without any merit.
C.C. No. 15/11 145 of 156 146 The testimony of the approver not reliable as he was not committed to custody before his statement was recorded under Section 164 Cr.P.C and pardon granted to him.
190. It was submitted by the Ld. Defence Counsel that in the judgement of the Hon'ble Supreme Court in case Swaran Singh V/s State of Punjab (Supra) it is necessary that before the statement of Sh. Sahijwani was recorded under Section 164 Cr.P.C, he should have been committed to judicial custody for atleast 24 hours.
191. I have seen the said judgment. It does not lay down that an approver before his statement being recorded under Section 164 Cr.P.C be committed to judicial custody even where he is on bail. There can be no doubt that if a person is in police custody and his statement is to be recorded under Section 164 Cr.P.C the same is not likely to serve any purpose because the person would be made in the influence of police so long as he is in police custody and, therefore, to free his mind from any such possible influence it is necessary that he should be committed to jail custody.
C.C. No. 15/11 146 of 156
147
Difference in timings
192. It was submitted on behalf of the accused namely Banmali Halder, Kishori Lal and J.P Sharma that "The time being important, according to PW5 the recorder was switched on at 5.45 P.M or 5 minutes to 6.00 P.M. however, the witness/approver Vasudev Sahijwani (PW4) left the office of POE at 5.30 P.M therefore, there was no occasion to the cassette to have the conversation of Sahijwani (PW4) also as testified by him in court after hearing the conversation in court which is the case none".
193. A similar plea has been raised on behalf of accused Prem Kumar and B.K. Gupta. The same reads as under :
"It is the case of the prosecution as per the transcript that the tape recording was started at 5 minutes to 6.00 P.M and at 6.00 P.M Smt. Zahida Qureshi and Sh. Bazillah and another CBI officers entered the office room of POE. However, Vasudev Sahijwani in his statement u/s 164 has stated that on 21.4.1988 he hd after settling the amount left the premises at 5.30 P.M. and he came to know about CBI raid on the next day. He has further stated in si deposition (10.10.2007) that on 21.4.1988 he went to POE C.C. No. 15/11 147 of 156 148 office at 3.30 P.M. The conversation was recorded at about 4.00 P.M. and raid too place thereafter. He has further said that he had left for his house at 5.45 P.M. and then again said he may have left at 5.30 P.M. He has categorically said that not a single agent was present at the time of raid. He has further said, it is correct he was not present when the CBI team entered the room of Amit Das Gupta. Sh. R.K. Joshi, TLO (20.3.2012) in cross has stated that It is wrong to suggest that there were Travel Agents present in the office and they were deliberately not joined the investigation or search. If Vasudev Sahijwani had left at 5.30 P.M. or 5.45 P.M, how could his voice be there in the tape recording as the transcript states that the tape recording was started at 5 minutes to 6.00 P.M."
194. The incident in this case is of year 1988. The examination of the witnesses started in this case after 14 years i.e. in the year 2002 and their examination continued till 2012. It can be understood that if the witnesses are examined after such a long period of time, some kind of minor discrepancies of this nature are bound to occur . What has been stated by the witnesses in terms of timings is to be seen in terms of not the exact time but an approximation of the time. The timings given are not so off the mark that the same could be viewed with any amount of seriousness. I am of the view that on this account at least the case of the prosecution cannot be discredited.
C.C. No. 15/11 148 of 156 149 Transcript shows no money given by Sh. B.K. Gupta and Sh. Prem Kumar to POE on 21.4.1988
195. It has been submitted on behalf of the accused Sh. Prem Kumar and Sh. B.K. Gupta that the transcript itself would show that there is a reason to believe that the money was given to the complainant by Sahijwani who had left his room with the promise to pay the balance as the travel agents were short of money. He has produced in the written arguments following part of the transcript :
"Sahijwani : Sir, we are ready to leave.
Complainant : How much is it now?
Sahijwani : Thirty Seven Thousand four hundred.
Complainant : 37400/.
Rajji : Sir total mein galat hai.
Complainant : Aaj ka.
Rajji : I am telling you.
Complainant : 37400/ fine.
Sahijwani : We are short of cash. We will bring the
balance tomorrow.
Complainant : Fine (All travel agents namely S/S
Rajinder rai, V.Sahijwani, T.S Duggal,
Nand Arora etc. leave the office room of
the complainant and S/Sh. Prem
C.C. No. 15/11 149 of 156
150
Kumar, B.K. Gupta and B. Haldar come
to the office room of the complainant.)"
196. Although it has already been stated above that the transcript is not reliable and, therefore, its better be ignored. In any case in order to examine this defence one can only say that it would not be fair to read only one portion of the transcript and leave the rest. If one goes through remaining portion of the transcript where it was shown that the possibility of Prem Kumar and B.K. Gupta having paid the money to the complainant cannot be completely ruled out. The relevant part of the transcript is reproduced as under :
"Complainant : Baad mein baat karenge.
Complainant : Prem close the door. For the first time I am taking money and will take the money and put it in the Briefcase. I do not want to leave the money here.
Prem Kumar : No, No (At this time Sh. B.K. Gupta and B. Halder came in with the money) Complainant : I know balance will be paid tomorrow morning. What time will it be 9 or 10 O'clock (At this time Sh. B.K. Gupta shows the handwritten slip to the complainant indicating the amount to be paid to the complainant and others and C.C. No. 15/11 150 of 156 151 keep back the slip with him and hands over the complainant a while envelope containing the illegal bribe money of Rs.27400/.
Complainant : What is the amount?
B.K. Gupta : Twenty Seven Thousands Four Hundreds. (Thereafter the complainant puts the said while envelope containing the bribe amount given by Sh. B.K. Gupta In his Briefcase.
Complainant : Sahijwani ne hamko bataya ki aaj paisa kam ho gaya. Kal balance denge.
Looking towards Prem Kumar Achha jo paisa milta hai, kya karna chahiye uska.
Prem : Prem Advices complainant to invest money in Fds, Purchase of share, lands etc. (At this stage the lady accompanied by another CBI officials comes in.)"
Seizure of Briefcases
197. There is also a submission made on behalf of the defence that the briefcase in which the money was stated to have been kept was not seized in this case. It was pointed out that in all two briefcases, according to the case of the prosecution, were seized in this case, one in which the money was allegedly kept by B.K. Gupta and Prem Kumar and the other one in which the money was found to be lying at C.C. No. 15/11 151 of 156 152 the time of the search of the house of the accused Sh. Banmali Halder. According to the submissions made, there was confusion about the identity of the said briefcase which was produced in the Court and also it was pointed out that the briefcases which were produced in the Court were of such poor quality that it would be hard to believe that an Officer of the level of Protectorate of Emigrants would have with him a briefcase of such poor quality The precise submission which had been made on behalf of the defence is being reproduced as under :
"Briefcase in this case is an important piece of evidence because it was in the briefcase the money was to be kept after being handed over by Sh. B.K. Gupta and Sh. Prem Kumar. This should have been preserved by the I.O. It seems, however, to have not been done in this case. In this case as the investigation had proceeded further, there was another briefcase which came into picture. This briefcase was stated to have been recovered from the house of Sh. Halder. There were two briefcases produced in the Court. It was uncertain that which of the briefcase was of the complainant wherein the money was kept and which was the briefcase which was recovered from the residence of Sh. Halder. Both of them were in very bad condition. They did not have even proper slips of C.C. No. 15/11 152 of 156 153 malkhana numbers for being identified as the briefcases recovered in this case. The TLO had stated that he had not seized any briefcase. The MHC(M) who had come in the Court had deposed that besides the briefcase recovered from the house of Sh. Halder, he had found one more briefcase lying in the malkhana. He had also admitted that the malkhana number given on the recovery memo Ex.PW2/A (M15/88) was not mentioned anywhere in he malkhana register. The briefcases which were produced in the Court were of the very poor quality and, therefore, it is hard to believe that an officer of the level of the complainant was having a briefcase of such poor quality. At least it can be said that he would have used briefcase of some established brand."
198. Once the money was properly identified and their numbers were noted in the seizure memo, the question that they were in a briefcase becomes insignificant, therefore, its seizure or nonseizure will not have too much of impact. The second question raised about the quality of the briefcase is also of no use as I have not been able to find any note or Court Observation anywhere in the examination of witnesses as to the quality of the briefcase produced or whether it was of any reputed brand or not.
C.C. No. 15/11 153 of 156
154
Order:
199. In view of the forgoing discussions and findings given, I am :
(a) Acquitting all the accused persons i.e Prem Kumar, B.K. Gupta, Banmali Halder, Kishori Lal, Naresh Kumar Gupta, O.P Sharma, J.P. Sharma and Rajinder Rai of the offences under Section 120B IPC read with Section 161, 162, 165A IPC and Sections 5(1)(a) and (d) read with Section 5(2) and Section 5(3) of the Prevention of Corruption Act, 1947, as charged ;
(b) Acquitting the accused Rajinder Rai for offence under Section 165 A IPC read with Section 120 B IPC for abetting the other co accused Prem Kumar, B.K. Gupta, Banmali Halder, Kishori Lal, Om Prakash, Naresh Kumar Gupta and Sh. J.P Sharma for commission of offences under Section 161/162 IPC and Section 5(1)(a), 5(1)(b) read with Section 5(2) and Section 5(3) of the Prevention of Corruption Act, 1947, as charged ;
(c) Acquitting the accused Prem Kumar, B.K. Gupta, Banmali Halder, Kishori Lal, Om Prakash, Naresh Kumar Gupta and J.P C.C. No. 15/11 154 of 156 155 Sharma for committing the offences under Section 5(1)(a) read with Section 161 IPC punishable under Section 5(2) of Prevention of Corruption Act, 1947 and Section 5(3) of the Prevention of Corruption Act, 1947 read with Section 162 IPC read with Section 120B IPC, as charged.
(d) Acquitting the accused Prem Kumar, B.K. Gupta, Banmali Halder, Kishori Lal, Om Prakash and Naresh Kumar Gupta for the offences under Section 161 and 162 IPC and also under Section 5(1)
(d) punishable under Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 120B IPC, as charged, giving them benefit of doubt ;
(e) Acquitting the accused Sh. J.P Sharma for the offence under Section 161 and 162 IPC and also under Section 5(1)(d) punishable under Section 5(2) of the Prevention of Corruption Act, 1947 read with Section 120B IPC, as charged ; and
(f) Acquitting the accused Sh. Prem Kumar and Sh. B.K. Gupta under Section 165A IPC read with Section 120B IPC for abetting C.C. No. 15/11 155 of 156 156 complainant Sh. Amit Dass Gupta for committing offence under Section 161 IPC, as charged giving them benefit of doubt.
Bail bonds of the above accused persons are cancelled and sureties discharged.
Ordered accordingly.
Announced in the Open Court ( L. K. GAUR )
on 1 June , 2013 Special Judge (CBI)9
st
Central District, Delhi.
C.C. No. 15/11 156 of 156