Delhi District Court
Cbi vs . Gulab Tulsyani, M M Patiala on 28 April, 2012
IN THE COURT OF V .K .MAHESHWARI
SPECIAL JUDGE: (P C Act)03 CBI DELHI
Corruption Case No.49/2004
CBI Vs. Gulab Tulsyani, M M Patiala
House, New Delhi, r/o C75
Double Storey , Ramesh Nagar, N
Delhi.
Date of Institution 16.11.2002
R.C No. 40(A)/86/CBI/ACB/N.D
Under Section U/s 161 IPC and U/s 5(2) r/w
5 (1) (d) of PC ACT 1947
Arguments concluded
on 17.4.2012
Date of order 25.4.2012
JUDGMENT:
FACTS OF THE CASE .
According to prosecution this case was regd. on the basis of a written complaint dt.6.6.86 from Sh. Ajesh Mittal of M/s C C No.49/04 1/104 Mittal Paints & Chemicals, 24/14, Railway Road near Railway Station, Samepur , Delhi alleging therein that Sh. Gulab Tulsiyani, the then M.M. Patiala House, New Delhi had demanded illegal gratification to the tune of Rs.2000/ from him in his court Chamber on 6.6.1986 for showing favour in his factory challan case which was pending in his Court for disposal. Sh. Gulab Tulsiyani had further directed the complainant to pay bribe amount to him at his residence No. C75, Double Storey Ramesh Nagar, New Delhi in the morning of 7.6.1986 at 8 A.M. Since, the Complainant was not willing to pay this bribe amount, he made a written complaint to CBI.
2 It was marked to Dy. SP Sh. R K Joshi for investigation. Sh. Joshi, Dy SP constituted a trap party and directed the team members to attend the CBI office on 7.6.1986 at 5.30 AM. 3 On 7.6.86 at about 6.00 AM all the members of trap party including the two independent witnesses and the complainant and his cousin assembled in the office room of Dy SP Sh. R.K. Joshi. After formal introduction with each and after observing other legal and necessary formalities, the complainant Sh. Ajesh Mittal produced a sum of Rs 2000/ consisting of 20 GC notes of Rs. 100/ each. These GC notes were treated with phenolphthalein C C No.49/04 2/104 powder and a practical demonstration of the working of the phenolphthalein powder and its chemical reaction in colourless solution of sodium carbonate was given to the members of the trap party and thereafter the said solution was destroyed. Personal search of the complainant Sh. Mittal and other member of the trap party was also conducted and nobody was allowed to keep any cash or documents except the identity cards with them. Only the complainant was allowed to keep a sum of Rs. 100/ for meeting any incidental expenses and his expenses. Thereafter, the treated GC notes of Rs. 2,000/ were returned to Sh. Ajesh Mittal, complainant with specific direction to pass on the same to Sh. Gulab Tulsiyani, MM only on his specific demand. 4 A pocket Sony Micro Cassette Tape Recorder fitted with a blank cassette was also given to Sh. Ajesh Mittal, after briefing him about its working and operation and he was directed to switch on the tape recorder button before talking to Sh. Tulsiyani. Sh. Shiromani Kumar, cousin of the complainant, was directed to accompany with the complainant to the house of Sh. Gulab Tulsiyani and as soon as Sh. Tulsiyani accepted the tainted GC notes, he should give a signal by coming out of the house of Sh. Gulab Tulsiyani on pretext of taking the key of the car and by C C No.49/04 3/104 scratching his head with his right hand to indicate the acceptance of bribe money by Sh. Tulsiyani. The two independent witnesses were directed to remain as close as possible to the house of Sh Tulsiyani to watch the signal closely.
5 At about 7.20 a.m. the trap party left CBI office and reached Rajouri Garden Chowk at about 7.55 a.m. At about 8.00 a. m. Sh. Mittal and Shiromani Kumar as per the direction of Dy. SP Sh. R K Joshi went inside the house of Sh. Gulab Tulsiyani bearing no. C75, Double Storey, Ramesh Nagar, New Delhi. Sh. Tulsiyani asked them to sit on the sofa lying in front of him. 6 As per instructions, complainant Sh. Mittal before talking to Sh. Tulsiyani switched on the tape recorder button. Thereafter, both the complainant and the accused remained engaged in conversation with each other for about 810 minutes in which the accused Sh. Tulsiyani clearly demanded a sum of Rs. 2,000/ as bribe from Sh. Mittal in presence of Sh. Shiromani Kumar and on the specific demand of Sh Tulsiyani, the complainant handed over the tainted GC notes of Rs. 2,000/ to Sh.Tulsiyani which he accepted with his right hand and kept the same on the sofa on which he was sitting. The conversation between Sh. Tulsiyani and Sh. Mittal at the time of demand and acceptance of bribe were properly C C No.49/04 4/104 recorded in the micro cassette tape recorder. 7 After the acceptance of bribe money by Sh. Tulsiyani from the complainant, Sh. Shiromani Kumar came out of the house of Sh. Tulsiyani at about 8.10 AM on the pretext of bringing the key of the car. Sh. Mittal also came out of the house of Sh. Tulsiyani and gave the appointed signal. On receipt of the signal, all the members of the trap party including two independent witnesses rushed toward the drawing room of Sh. Tulsiyani. Seeing the raiding party rushing towards him, Sh. Tulsiyani immediately rushed towards his bathroom and ultimately he was found in the bath cum toilet room where he was engaged in tearing of the tainted GC notes which was resisted by Dy SP, Sh. Joshi with the help of other members of the trap party. On the direction of Dy SP Sh. Joshi, independent witness Sh. M.R. Aggarwal collected the tainted GC notes from the floor of the bath room. Some of the GC notes were torn and the pieces of the torn GC notes scattered in the toilet cum bath room were also collected by witness Sh M.R. Aggarwal. Sh. Aggarwal brought all these GC notes in the drawing room and tallied their numbers with the number and denomination mentioned in the handing over memo. Thereafter, the left and right hand wash of the Gulab Tulsiyani were taken separately in two separate C C No.49/04 5/104 solutions of sodium carbonate and both the solutions turned pink. These solutions were transferred in two separate clean glass bottles and sealed with CBI seal No.34/84 after wrapping its mouth with a cloth wrapper which were initialed by both the independent witnesses. The bottles were marked 'L' & ' R ' and the recovered tainted GC notes and the sealed bottles were taken into police possession vide recovery memo dated 7.6.86 which was prepared on the spot and signed by all concerned including the two independent witnesses. The cassette of the micro cassette tape recorder was also sealed in presence of the two independent witnesses and the seal after use was handed over to the witness Sh. S. T. Mukkawar for safe custody.
8 Investigation also disclosed that one challan no. 1244/CL/86 dated 1.1.85 filed by the MCD u/s 416/417 of the DMC Act against Sh. Ajesh Mittal partner of M/s Mittal Traders (M/s Mittal Paints & Chemical) factory near Railway Station Badli Phatak, Railway Station Road, Samepur was pending trial in the court of Sh. Gulab Tulsiyani, M M Patiala House, New Delhi and on 6.6.86 complainant Sh. Ajesh Mittal had visited the court of Sh. Tulsiyani at Patiala House in connection with his challan case where he was called by Sh. Tulsiyani inside his chamber and C C No.49/04 6/104 demanded a bribe of Rs.2,000/ with the direction to pay this amount in the morning of 7.6.86 at his residence No. C75, Double Storey, Ramesh Nagar, New Delhi, failing which he would impose penalty of Rs.5,000/ on him.
9 Copies required U/S 207 Cr P C supplied to accused. After hearing both the parties vide order dt. 16.2.2008 charge has been framed against the accused U/s 161 IPC & u/s 5 (2) r/w Sec. 5(1) (d)of P C Act 1988 against accused Gulab Tulsiyani. Accused pleaded not guilty to the charge and claimed trial. Hence, this trial. 10 Prosecution, in order to prove its case, has produced following witnesses:
PW1 Sh Durga Prasad has proved judicial file Ex PW1/A, Challan dt. 1.1.85 Ex PW1/B, Bailable Warrant Ex PW1/D, report on bailable warrant Ex PW1/E and order of issuance of NBW Ex PW1/F. PW2 Sh V S Bisaria, Chemical Examiner has proved his report Ex PW2/A. PW3 Sh. M R Aggarwal, recovery witness has proved Handing Over Memo Ex PW3/A, recovery memo Ex PW3/B and correctly identified the case property Ex C1 to C29.
PW4 Sh Manoj Kumar Sharma has proved gazette C C No.49/04 7/104 notification No.1/62/640/judl. dt. 20/9/74 Ex PW4/A and suspension order dt. 14.6.86 Ex PW4/B. PW5 Shri S T Mukkawar has proved the documents already proved by PW3.
PW6 Sh. Shiromani has proved memo Ex PW6/A and also proved the documents already proved by PW3.
PW7 Sh Ajesh Mittal is the complainant. He has proved the documents already proved by other PWs.
PW8 Sh R K Joshi, Retired Addl. DCP has proved FIR Ex PW8/A and charge sheet Ex PW8/B.
11 Statement of accused recorded U/s 313 Cr. PC, wherein accused has denied all the allegations made against him and the evidence produced by prosecution. He has stated that after disposing cases in his Court, he went to Children Court directly as per order and performed judicial work there. Copies of the work including judgment delivered had been produced in this Court. He did not go to his Chamber nor PW 7 went inside his chamber nor he demanded any bribe from him. Rather complainant forcibly tried to thrust the money in his hands and in the process some currency notes were torn off. Since no money was kept on sofa that is why there is no wash of the sofa. He was not in Patiala House Courts on C C No.49/04 8/104 4th and 5th June 1986 and did not meet the complainant at all on 4th , 5th and 6th June 1986 or on any of these dates . He has been falsely implicated in this case.
12 Accused has examined following witnesses in his defence:
DW1 Sh. Sunil Dhyani, DW2 Sh. Santosh Kumar Singh, DW3 Sh. Anil Kumar and DW4 Sh. Om Parkash have deposed orally and have not proved any document.
DW5 Smt. Bimla Makin has proved endorsement on affidavit Ex.DW5/A, certified copy of order passed by her as M M Children Court on 5.6.86 Ex DW5/B and another judgment dt.
5.6.86 Ex DW5/C. PROSECUTION ARGUMENT
13 Ld. Special Prosecutor Sh. Brajesh Shukla argued that in this case accused has been charged U/s 161 of Indian Penal Code and u/s 5(2) r/w 5(1) (d) of P C Act for having accepted or obtained an amount of Rs.2,000/ from complainant Ajesh Mittal as gratification other than legal remuneration, as a motive or reward for showing favour, in exercise of his official function, to complainant Ajesh Mittal in the matter of factory challan case No. 1244/CH/86 which was pending in his court for hearing and C C No.49/04 9/104 disposal.
14 During trial prosecution examined altogether eight witnesses for bringing home the charges. PW1 Sh. Durga Prashad who was Reader cum Ahlmad in the court where accused was presiding over as Judicial officer, though became hostile but his evidence in totality has proved the fact that judicial file relating to complainant Ex PW 1/A was pending in the court presided over by accused. He has further proved Bailable warrants of complainant as Ex PW1/D, challan Ex PW1/B, report on BWs Ex PW1/E and NBW Ex PW 1/F issued against complainant Ajesh Mittal. Bail bond having the signatures of complainant Ajesh Mittal and signatures of accused/Presiding Officer is also proved by PW1. 15 PW3 and PW5 have proved the fact that one pocket Micro Sony Cassette recorder fitted with blank cassette was given to complainant and he was carrying the same in on position while interacting with accused. They have also proved the fact that accused was standing in bathroom and was tearing the notes and some of the notes were scattered on the floor. Wife of accused and his son have also tried to obstruct the CBI proceedings. As such they have proved recovery of GC notes and their torn pieces Ex C1 to C25.
C C No.49/04 10/104 16 PW2 Sh. V S Bisaria has proved CFSL Report Ex PW2/A, according to which in the hand wash of accused presence of phenolphthalein powder and sodium Carbonate was found. 17 PW4 Sh. Manoj Kumar Sharma has proved gazette notification Ex PW 4/B according to which accused was undisputedly a public servant. PW6 and 7 have proved the fact that accused had informed them in the court that each partner can be fined Rs.5,000/ and a fine of Rs.5,000/ could be imposed on the firm. It was intentionally done by accused in order to create the scope for accepting bribe and putting duress in their mind otherwise. Transcription of conversation has also proved the fact that accused/presiding officer has either solicited for bribe or agreed to accept bribe in the matter relating to the case of complainant pending in his court.
18 PW8 Sh. R K Joshi has corroborated the version of complainant as well as witnesses. He has also detailed the circumstance and situation under which bribe amount was recovered. The conduct of accused relating to acceptance of money, according to section 8 of Indian Evidence Act, proves the ingredient of offence enshrined U/s 161 IPC and Section 5 (2) r/w 5 (1) (d) of P C Act. Under presumption clause, when recovery has C C No.49/04 11/104 been proved, it can very well be said that the same was nothing but illegal gratification other than legal remuneration accepted or obtained by accused as a motive or reward.
DEFENCE ARGUMENTS 19 It is argued by Ld. Defence Counsel that PW1 Durga Prasad who was the then reader/ Ahlmad of the Court of accused has categorically denied every suggestion of the prosecution when confronted with his alleged statement U/s 161 Cr PC. In his cross examination he has stated that when he was interrogated by the IO Sh. B N Jha he had threatened him that he would implicate him in case he would not depose as per the version given by him. 20 It is further argued by Ld. Defence Counsel that as per the statement of PW3 Sh. M R Aggarwal complainant Ajesh Mittal was directed to switch on the tape recorder before talking to the accused which has been corroborated by PW8 R K Joshi, the Trap Laying Officer and PW5 Sh. S T Mukkawar. This fact has been admitted by complainant in his cross examination. With these instructions he was supposed to record the entire conversation whatsoever alleged to have taken place between the accused and the complainant. Complainant has deposed, "When we had occupied our seats, thereafter accused had asked whether I had C C No.49/04 12/104 brought the money or not" Attention of this witness was drawn towards the transcript Ex PW 3/DC of the recorded conversation wherein it is not so recorded. This fact speaks volumes about the conduct of the complainant and other witnesses, malafide intentions of the complainant and unfair investigation carried out by the TLO and IO.
21 As per the statement of TLO Sh. R K Joshi he was called at about 6 PM by the SP in his office and had given the complaint Ex PW7/A of Ajesh Mittal with his endorsement and he discussed the complaint with him. He has further stated that for satisfying himself he proceeded to the area to find out the general reputation of Gulab Tulsiyani and he returned at about 8.30 PM after finding that accused was not enjoying good reputation and informed this fact to SP who directed for registration of the case and it was decided to lay a trap on the next morning. Requisition of two independent witnesses was sent to Oriental Bank of Commerce. Banks normally close at 5 PM and there is no chance/possibility of informing the General manager of a Bank after 9.15 PM and further directions given by him to his subordinates in writing to reach CBI office on the next morning i.e. 5 AM. This statement in itself speaks volumes that the TLO is an impulsive liar and can go to any C C No.49/04 13/104 extent while telling lies. He has further stated when questioned to which area he had gone for the verification he had the audacity to say that,"I cannot answer this question as it is related to disclosure according to me." He has further stated that he does not remember the conveyance vide which he had gone out of CBI office for the purpose of verification. However he is very specific that SP, CBI, ACB had summoned the independent witnesses on the same night. He has further stated that shadow witness was directed to remain as close as possible to the complainant and observe all happenings, which fact is admitted by the complainant. However, when questioned about the position of the independent witness during the trap he says that he does not remember the position of the shadow witness as to where he was stationed at that time, however the site map may indicate about the same. As per the statement of PW5 S T Mukkawar, the so called shadow witness, was standing across the road from the house of accused. Moreover, as per the statement of the complainant the independent witness was sitting in the complainant's car which was parked at some distance from the house of accused.
22 It is further argued by Ld. Defence Counsel that unfairness of the investigation can be found out from the fact that C C No.49/04 14/104 the wash bottles Ex P 26 & P27 having label of Sura. TLO has admitted this fact in his cross examination which is as follows:
"On seeing bottles which are marked as with the case no. RC40/86 which is Ex PW26 & 27 it is seen that some label of SURA is there on one bottle. Since it is matter relating to 25 years old I do not exactly remember whether the labels were as it is."
23 There is a Court Observation that on one side of both bottles there is printed label having printed material. On the other side on white paper RC No. and other particulars of this case are mentioned, is affixed on some label.
24 It is argued that PW 5 S TMukkawar, in his cross examination has stated that he was shown bottles when they started from the CBI office to the spot and at that time the bottles were neat and clean and were transparent hence they could see through it. He has stated in his cross examination as follows:
"Now I cannot tell whether these bottles are same even after looking at Ex P26 & P27." meaning thereby that either the evidence has been tampered with or the witnesses are not telling the truth thus, the investigation has not been carried out fairly.
25 It is further argued by Ld. Defence Counsel that as far as the demand by accused either on 4th or 5th of June, 1986 is C C No.49/04 15/104 concerned, no such question arises since on 4th and 5th accused was working in Civil Lines Zone and in Children court and had even signed some judgments as has been stated by Smt. Bimla Maken, Retd. Judge, the then MM Children court who had signed that judgment on the same date alongwith accused. 26 It is further argued by Ld. Defence Counsel that witnesses are telling lies deliberately, becomes evident from the fact that Pws 3, 5, 6 & 8 have stated that the complainant and his companion PW6 Shiromani Kumar were allowed to keep Rs.100 each while leaving the CBI office and on personal search after the trap it has been stated by TLO that a sum of Rs.84/ were found on the person of PW6 Shiromani and Rs.50/ from the person of the complainant. The fact remains that the complainant has admitted in his cross examination that he was allowed to keep Rs.200300 while leaving CBI office and he had spent Rs.50/ for the petrol on his way to the house of accused and Rs.100/ was allowed to be kept by Shiromani Kumar who had accompanied him. Hence, recovery of Rs.50/ and Rs.84/ creates doubt in the the theory of prosecution being propounded by the TLO and unfair investigation carried out by him.
27 It is further argued by Ld. Defence Counsel that C C No.49/04 16/104 prosecution has tried to conceal the fact from the Court is that complainant has admitted that he had engaged an advocate Sh. S C Malik and had given his challan to him on 4th June and it was he who had taken him to R K Joshi and he had learnt that in such challans only fine of Rs.50/ or Rs.100/ were to be imposed. There was no reason for paying Rs.2,000/ as illegal gratification when one knows that he will be fined Rs.100/ only. It cannot be lost sight that complainant in his complaint has written that accused was not available in the court on 4th and 5th of June, 1986. 28 Complainant and TLO have categorically stated that when the trap team entered the house/drawing room of accused trap money was lying on the sofa but no wash of the sofa seat was taken. The story concocted by the prosecution that accused rushed towards his bathroom is controverted by the site plan prepared by TLO himself. It has been admitted by complainant, shadow witness and TLO that there is no passage from the drawing room or from the adjoining bedroom to the bath room as indicated in the site plan. 29 It is further argued by Ld. Defence Counsel that only Rs.650/ was recovered from the personal/house search of accused and nothing was found in the locker of accused while he was working as Magistrate for the last 15 years.
C C No.49/04 17/104 30 With regard to recovery it is argued by Ld. Defence Counsel that accused has made it clear in his statement U/s 313 Cr PC in reply to question No.19 that he never demanded any money rather the complainant forcibly tried to thrust the money in his hand, in this process some currency notes were torn off and since no money was kept on the sofa that is why no wash of the sofa seat was taken. The credibility of the witnesses and the TLO comes down to Zero when it is found out as per the documents and statements that they are deliberately telling lies, concealing the truth from the court and are out and out to falsely implicate the accused. 31 It can not be lost sight of the fact that no sample voice of accused was ever taken or sent to CFSL for comparison/opinion. Additions have been made in handing over memo and other documents as apparent on the face of documents as it is, which reflects that additions and alterations have been made with a view to plant a false case upon the accused.
32 Ld. Defence Counsel in support of his arguments as placed reliance on the following authorities:
P K Gupta Vs. CBI, 2011 (4) JCC 2352, Sita Ram Vs. The State of Rajasthan, 1975 Crl. LJ. 1224, Panalal Damodar Rathi Vs. State of Maharashtra AIR 1979 Supreme Court 1191, Suresh Kumar C C No.49/04 18/104 Shrivatava Vs. State of MP 1994 Crl. L.J. 3738, G V Nanjundiah Vs. State, AIR 1987 Supreme Court 2402, Jagdish Narain Vs. State of Rajasthan, 2009 (4) Criminal Court Cases 171 (Rajasthan), A Subair Vs. State of Kerala, V (2009) SLT 272, Municipal Corporation of Delhi Vs. Ganga Ram and another DLT Vol. III P6 (1967) and Kharaiti Lal Vs. The State DLT Vol. I, Page 362 (1965) PUBLIC SERVANT AND SANCTION
33 PW4 Manoj Kumar Sharma, Senior Judicial Assistant, Gazette Branch, High Court of Delhi has proved Gazette Notification No. 1/162640/judl. dt. 20.9.74 Ex PW4/A vide which accused Gulab Tulsiyani was notified to be appointed in the cadre of Delhi Judicial Service as Judicial Officer. In the month of June 1986 accused Gulab Tulsiyani was working as Metropolitan Magistrate and posted at Patiala House Courts. Even this fact has not been disputed on his behalf during the trial or at the time of addressing final arguments by Ld Defence counsel , thus it is undisputed that he was working as public servant on 6.6.86 and on 7.6.86.
34 Originally charge sheet has been filed against accused C C No.49/04 19/104 Gulab Tulsiyani on 31.3.87 in the court of the then Special Judge, however accused was discharged by Hon'ble High Court vide judgment dt. 30.3.2002 on the ground that sanction order for his prosecution was not in conformity with the mandatory provision of article 235 of the Constitution of India with the observation that challan may be filed after obtaining proper sanction order and after removing the legal infirmities in the sanction order. Accused retired in the month of September, 1995. Present charge sheet has been filed in the court of my Ld. Predecessor on 16.11.2002 after his retirement.
35 Cognizance of the offences against the accused was taken by the Ld. Predecessor of this court on 22.5.03. Accused was retired in the month of September, 1995 from the service, thus ceases to be a public servant on the date of filing of charge sheet as well as on the date of taking of cognizance, hence no sanction is required for his prosecution in this case.
36 My Ld. Predecessor Sh. Dinesh Dayal, the then Special Judge,CBI vide his order dt. 16.2.2005 directed to frame a charge against the accused for the offence punishable U/s161 IPC and Section 5 (2) r/w 5(1) (d) of P C Act, 1947. My Ld. Predecessor Sh.Dinesh Dayal has also accordingly framed charge against C C No.49/04 20/104 accused on 16.2.05. Accused has challenged the above order of framing of charge of my Ld. Predecessor against him vide criminal revision petition No. 208/2005. In his revision petition he has also disputed the validity of cognizance of offences taken against him by my Ld. Predecessor. Hon'ble High Court vide order dt. 10.12.2010 dismissed the revision petition filed by the accused. Relevant portion of the order of Hon'ble High Court, in this regard, is as under:
"It is admitted case of prosecution that charge sheet against the petitioner has been filed without obtaining sanction for his prosecution under Section 6 of the P C Act, 1947. The plea taken by the prosecution is that there was no need of sanction for prosecution as by the time the charge sheet was filed, the petitioner had already ceased to hold the Office of Metropolitan Magistrate. The question of law which requires consideration is whether or not after the cessation of office by a public servant either by retirement or termination of service, sanction for his prosecution under section 6 of the P C Act, 1947 is sine qua non for taking cognizance of the offences purportedly submitted by him. Law on this issue is well settled. It has been held by the Supreme Court in various pronouncements that once a public servant accused of an offence under P C Act has ceased to hold public office, no sanction for his prosecution is required.
In the case of Kali Charan Vs. State of Orissa, (1998) 6 SCC 411, it was hold that a public servant who C C No.49/04 21/104 committed an offence mentioned in the P C Act while he was a public servant can be prosecuted with the sanction contemplated in section 19 of the P C Act, 1988 (corresponding to Section 6 of the P C Act 1947) if he continues to be a public servant when the court take cognizance of the offence. But, if he ceases to be a public servant by that time, the court can take cognizance of the offence without any sanction.
In the matter of State of Kerala vs. Padmanabhan 1999 (6) ad (SC) 363, it was held that an accused facing prosecution for offence under P C Act cannot claim any immunity on the ground of want of sanction, if he ceased to be a public servant on the date on which the Court took cognizance of offence.
Petitioner has relied upon the case R.Balakrishna Pillai Vs. State of Kerala and another, AIR 1996 SC 901. Even in that case, the Supreme Court, while dealing with the issue of sanction under Section 6 of the P C Act 1947 in the case of a public servant who had ceased to be in office at the time of taking cognizance of offence by the Court, upheld the view of the High Court that in such a case, sanction for prosecution was not required. From the above pronouncements of Supreme Court, it is apparent that once a public servant ceases to hold the office, he cannot take shelter of the protection granted under Section 6 of the P C Act 1947 to evade prosecution and punishment for the offence of corruption committed by him.
The next submission on behalf of the petitioner is that once the Special Judge had discharged the petitioner vide order dt. 30.3.2002 and observed that prosecution may file fresh charge sheet after obtaining a proper and valid sanction for prosecution and once that order had become final, C C No.49/04 22/104 the successor court could not have taken a view that no sanction for prosecution was required because the petitioner had retired because as such, the order amounts to review of the earlier order passed by the Court.
I find no substance in this contention. On perusal of the order dt. 30.3.2002 of the then Special Judge, it transpires that while discharging the petitioner, the Special Judge gave opportunity to the prosecution to file fresh charge sheet after obtaining proper sanction, after removing the defect/infirmities in the sanction order. From this, it is obvious that by that order, the Special Judge left a window open for the prosecution to file a fresh charge sheet. once the fresh charge sheet was filed, in my considered view, the then Special Judge who dealt with the charge sheet was within his powers to consider the charge sheet and take cognizance on the strength of the facts prevailing at that stage. Since the petitioner had retired before the filing of subsequent charge sheet, there was no requirement of law to obtain sanction for his prosecution. Therefore, I find that the learned Special Judge, while passing impugned order dt. 16.2.2005 rightly took the view that no sanction for prosecution was required and framed charges against the petitioner on the basis of the material produced by the prosecution."
37 In view of above order of Hon'ble High Court, now it is well settled that no sanction is required for the prosecution of accused in these circumstances.
DEMAND, ACCEPTANCE AND RECOVERY 38 It is forcefully argued on behalf of accused that C C No.49/04 23/104 prosecution has failed to prove the alleged demand of illegal gratification made by the accused from the complainant and acceptance of the bribe money by him and recovery of the same from his conscious possession.
39 Complainant Ajesh Mittal had given his written complaint dt. 6.6.86 to S P, CBI stating therein that he was challaned by an Inspector of Corporation which was pending in the Court of Sh. Gulab Tulsiyani. He has categorically mentioned in his complaint that on 5.6.86 he came to know that warrants had been issued against him, hence he had gone to court in the morning of 6.6.86 alongwith Shiromani Kumar. He got his challan put up before the Magistrate who had told him that a fine upto Rs.5,000/ can be imposed on each partner as well as on the firm. After that Magistrate had left the court and gone in his chamber. He was called by the Magistrate in his chamber. Magistrate had told him that he will impose a nominal fine on him if he (complainant) would pay him (accused) Rs.2,000/ on the next day morning at his residence.
40 The fact that challan of complainant was pending in the Court of accused Gulab Tulsiyani and Non Bailable warrants of complainant were issued and complainant had attended the court of C C No.49/04 24/104 accused Gulab Tulsiyani on 5.6.86 and 6.6.86, has been proved by PW1 Durga Prasad who was the then posted as Reader cum Ahlmad in the court of accused Gulab Tulsiyani. Relevant portion of his statement in this regard is as under:
"During the period 198586 I was posted as Reader cum Ahlmad in the Court of Sh Gulab Tulsiyani the then MM, Patiala House Courts N Delhi. I know accused Gulab Tulsiyani present in the Court. I have seen original judicial file containing 1 to 26 pages pertaining to case File MCD Vs Ajesh Mittel and M/S Mittal Traders U/S 416/ 417 DMC Act. The concerned file was being dealt with by me under my hand writing , the judicial file is Ex PW1/A. I have seen challan dated 1.1.85 in respect of Ajesh Mittal which was received in the Court, this challan bears the signature of Gulab Tulsiyani at point A which I identify as I have worked under him and have seen him writing and signing, the challan is Ex PW1/B. The challan was put up before the accused on 29.4.1986 under my hand writing for issuance of bailable warrant against Ajesh Mittal . Earlier this challan was put up before the Mobile Court . The order of bailable warrant for a sum of Rs.2000/ was issued by the accused Gulab Tulsiyani under his initial at point A for appearance of accused in the case on 16.5.86. The order bears the signatures /initial at point A which I identify. The bailable warrant under the intial of accused at point A is Ex PW1/D which I identify. The warrant was duly executed and the bailable warrant was received back with the report which is Ex PW1/E. On 16.5.86 Ajesh Mittal did not appear / turn up in the Court . Since the bailable warrant was received C C No.49/04 25/104 very late therefore the challan was not put up before Presiding officer. Again the challan Ex PW1/B was put up before the accused on 5.6.86 to which accused directed me for issuance of NBW which was put up under my hand writing, which is Ex PW1/F. On 5.6.86 Ajesh Mittal came to the court and enquired about the challan in the name of Ajesh Mittal. I informed him that NBW has been issued against him. So better you come tomorrow for disposal of challan. On 6.6.86 Ajesh Mittal came to court at about 10.30 or 11 AM and contacted me At his request I took out his challan from the bundle and after preparing the notice U/s 251 Cr PC put the same before Ld. Presiding officer after the signature over notice U/s 251 Cr PC. Ld. PO had enquired from Ajesh Mittal whether he want to dispose of the challan or not. Ajesh Mittal had told that he had applied for the licence. Ld. PO had given the file to me with the directions to write an ordersheet, adjourning the case for 7.6.86 with the directions to accused to produce all the documents."
41 Complainant Ajesh Mittal has appeared in the witness box as PW7 wherein he has deposed as follows:
"The challan was done by MCD Inspector regarding pollution, caused by our factory. As per challan, I was to appear in the Court of Sh.Gulab Tulsyani on 04/06/1986. Accordingly, I had gone in the court on 04/06/1986 at about 10/11.00 am. Accused Gulab Tulsyani had told us that we both the partners will be fined Rs.5,000/ each. I told C C No.49/04 26/104 accused that the factory which was adjacent to my factory was fined Rs.50/ only. Accused asked me that if I want to contest the case then I had to fill a form. We went to bring that form. Meanwhile, there was lunch time. During the lunch time, Reader of Mr.Gulab Tulsyani had told me that we were called by accused Gulab Tulsyani insider his chamber. I went inside the chamber of accused. Accused had asked me to pay Rs.2,000/ to him at his house and he will admonish the challan. After making enquiry from somewhere, I went to CBI office to make the complaint.
My complaint was taken by the SP. He had called R.K.Joshi and instructed him to deal with my complaint. Accused had given me the time for making the payment of money to him on 07/06/1986 which perhaps was the Sunday."
42 Ld. Defence Counsel forcefully argued that Complainant Ajesh Mittal has deposed that he met accused Gulab Tulsiyani on 4.6.86 when he made the alleged demand of illegal gratification, which is not even the case of prosecution itself, therefore there is no truth in the allegations made against accused with regard to the alleged demand of illegal gratification. He has further argued that complainant even in his complaint has specifically mentioned that accused Gulab Tulsiyani was not available in the court when he had gone on 4.6.86 and 5.6.86. 43 It is correct that complainant has mentioned in his complaint that when he went to the court on 4.6.86 and 5.6.86 C C No.49/04 27/104 accused Gulab Tulsiyani was not available in his court. It is also correct that in the above quoted examination in chief of complainant he has stated that on 4.6.86 Gulab Tulsiyani had demanded illegal gratification of Rs.2,000/ from him for imposing minimum fine.
44 Complainant in his cross examination on behalf of accused has clarified this fact that accused had demanded illegal gratification of Rs.2,000/ from him on 6.6.86. Relevant portion of his cross examination on behalf of accused dt. 2.11.2011 in this regard, is as under:
"
Now I do not remember the time when I reached in the court on 6.6.86. Some person were present in the court room when I had gone in the same on 6.6.86. Initially Mr. Tulsiyani was sitting on the dais, however in the lunch he has retired in his retiring room. On that very day Mr. Tulsiyani had told to impose fine of Rs.5,000/ each on both the partners prior to his going in the retiring room. Now I do not remember whether Mr. Tulsiyani had given me the next date or his ahlmad/staff had given me the next date."
45 From the above quoted portion of the cross examination of complainant it is clear that accused Gulab Tulsiyani had told him of imposing fine of Rs.5,000/ each on both the partners and demanded illegal gratification on 6.6.86 . C C No.49/04 28/104 46 In this case accused was trapped on 7.6.86 while statement of complainant ,in this court, was recorded in the year 2011. Prior to it statement of complainant was also recorded on 12.8.88 during the previous trial of this very accused in the Court of the then Special Judge. That judicial file is also attached with this file. In these circumstances because of long lapse of time such mistake can be the result of confusion however the demand of illegal gratification on 6.6.86 is duly corroborated by the documentary evidence i e complaint Ex PW7/A and transcription of tape recorded conversation Ex PW3/DC and from the statement of PW 6 Shrimoni Kumar . Relevant portion of his statement in this regard is as under:
"Accused Mr. Tulsiyani was sitting on his seat who had told us that a fine of Rs.5,000/ on each partner and a fine of Rs.5,000/ on the firm can be imposed. We had appeared and Mr. Tulsiyani had told us that a form costing 15 paise only be got filled up from the reader. I and Ajesh Mittal had brought that form. Reader of the court got filled that form from Ajesh Mittal. At that time Judge Gulab Tulsiyani was not sitting on his seat in the court and had gone inside his chamber. We requested the reader for getting the challan disposed of. He had gone in the chamber of judge and after coming from the chamber he had told us to have a date/adjournment. We requested to him to get the challan disposed of on that day. Then he went inside the chamber and after coming out of C C No.49/04 29/104 the chamber told us that Judge was calling Ajesh Mittal inside his chamber. Thereafter Ajesh Mittal had gone inside the chamber of the judge. I remained outside. Ajesh Mittal after coming out of the chamber told me that judge sahib Gulab Tulsiyani was demanding a sum of R.2,000/ otherwise a fine of Rs.5,000/ on each will be imposed. (Objected to being hearsay. Objection overruled being a part of being resgeta) Ajesh Mittal did not want to give the money. Then we went to our house to discuss the matter. We had decided to approach the CBI with regard to making of complaint of demand of money. Accordingly I and Ajesh Mittal had gone to CBI office. We met with SP in the CBI Office. Ajesh Mittal had given an application to SP."
47 Complainant had visited the court of accused on 6.6.86 and notice U/s 251 Cr PC was served on him on 6.6.86. This fact that notice U/s 251 Cr PC was served on the complainant on 6.6.86 is also corroborated from the notice Ex PW 7/DZ2 which bears the date of 6.6.86 and signatures of Complainant Ajesh Mittal and that of accused Gulab Tulsiyani having date of 6.6.86 underneath the same. PW1 has also corroborated this fact that he had prepared the notice U/ 251 Cr PC and served the same on the complainant and put up the notice before Ld. Presiding Officer (accused). Relevant portion of the statement of PW1 Durga Prasad, the then Reader of the court of accused Gulab Tulsiyani, is as under:
C C No.49/04 30/104
"On 6.6.86 Ajesh Mittal came to court at about 10.30 or 11 AM and contacted me At his request I took out his challan from the bundle and after preparing the notice U/s 251 Cr PC put the same before Ld. Presiding officer after the signature over notice U/s 251 Cr PC. Ld. PO had enquired from Ajesh Mittal whether he want to dispose of the challan or not. Ajesh Mittal had told that he had applied for the licence. Ld. PO had given the file to me with the directions to write an ordersheet, adjourning the case for 7.6.86 with the directions to accused to produce all the documents."
48 The fact that complainant was directed to produce the papers on 7.6.86 after serving Notice U/s 251 Cr PC on him on 6.6.86 , has also been corroborated by the order sheet dt. 6.6.86 of the judicial file Ex PW1/A of case titled MCD vs. Ajesh Mittal M/s Mittal Traders, U/s 416/417 D M C Act which is as under:
"Present: accused in person and stated that I have applied two applications for issue of licence. He is directed to produce all papers on 7.6.86.
M M /6.6.86"
49 This ordersheet was written by PW1, the then Reader of accused on his direction. Relevant portion of statement of PW1, in this regard, is as under:
"C C No.49/04 31/104
Ld. PO had given the file to me with the directions to write an ordersheet, adjourning the case for 7.6.86 with the directions to accused to produce all the documents."
50 In view of above discussion it is well proved on the judicial file that complainant had met the accused on 6.6.86 when accused had made the initial demand of illegal gratification from him.
51 PW8 R K Joshi, TLO of this case has deposed that after receiving the complaint ExPW7/A on 6.6.86 from the Complainant Ajesh Mittal, he had enquired about the reputation of accused Gulab Tulsiyani and informed SP, CBI who directed him to register the case and to lay a trap. Relevant portion of statement of PW8 R K Joshi, TLO of this case, is as under:
"The SP, CBI introduced me to them and told that Sh.Ajesh Mittal has given a complaint dated 06/06/1986 against Sh. Gulab Tulsiyani, a judicial officer. The same is already exhibited as PW7/A on which the then SP, Sh.V.N.Dixit put his endorsement to me at point B. I can identify his handwriting and signatures since I have worked under him and have seen him writing and signing. I discussed the complaint over there and then brought the complainant and Shiromani Kumar to my room for further discussion. After satisfying myself, I proceeded to the area to find out the general reputation of Sh.Gulab Tulsyani to make sure that his conduct was generally good or bad. I returned at about 8.30 pm after finding that C C No.49/04 32/104 he was not enjoying good reputation. I accordingly informed the SP, CBI who directed for registration of the case. At about 9.15 pm, I received a copy of the FIR and the complaint. The FIR is Ex.PW8/A. The same bears the signatures of Sh.V.N.Dixit, the then SP at point A. It was decided to lay a trap on the next morning. Accordingly, requisition for two independent witnesses was sent to the Oriental Bank of Commerce. I also constituted a raiding party including Inspector Vijay Rawal, Inspector N.S.Kharait, Inspector Sukh Ram, SI L.K.Asthana and lower subordinates including Ct.Suraj Bhan and L/Ct.Zaida Qureshi. The complainant and the raiding party members were directed to assemble on 07/06/1986 between 5.30 to 6.00 am."
52 PW7 Complainant Ajesh Mittal with regard to demand of illegal gratification made by accused on the spot has deposed as follows:
"I and Shiromani Kumar had entered in the house of accused after pressing the call bell. Accused himself had come then we entered in the house of accused. Accused had asked me to sit on the sofa. I and Shiromani Kumar sat down on the sofa and switched on the tape recorder. Accused had asked us whether we had brought the money. I told him that I had brought the money. Accused asked us to pay the money to him, therefore I handed over the money to accused. I after coming out had flashed the signal which was told to me to flash by the CBI officers in the CBI office after completion of the transaction. Thereafter the entire staff had come inside the house of accused. After seeing the staff, accused had rushed towards the C C No.49/04 33/104 bathroom. Money was recovered from accused by the CBI officers including R.K.Joshi in the bathroom. Accused was trying to tear of the currency notes in the bathroom. Accused was brought out of the bathroom by the CBI officers. Witness had also come. Accused was trying to throw the currency notes in the flush of the bathroom. All the currency notes were collected by the officers. Handwash of accused were taken after bringing him out of the bathroom."
In his cross examination, in this regard. this witness has deposed as follows:
"
CBI officers had also came in drawing room.
Independent witness had also come alongwith them. Accused rushed to the bathroom. CBI officers had also followed him. They might have gone from drawing room to Bath room directly, now I do not remember exactly. We had also entered inside the room.".....
.... " The hand wash taken on the spot were sealed in the bottle. The bottles were brought by the CBI officials. Cassette after taking from me was sealed. Seal was given to independent witness after use however name of that witness Now I do not remember ."
53 In this regard, PW6 Shiromani Lal who had accompanied the complainant to the accused in his house alongwith the tainted money has deposed as follows:
" I and Ajesh Mittal had gone inside the house of Gulab Tulsiyani. Other members remained outside. Gulab Tulsiyani met us in the drawing room of the house. Ajesh Mittal had told Gulab Tulsiyani that yesterday he was very afraid.C C No.49/04 34/104
Gulab Tulsiyani told "Achcha". Thereafter money was given in the hand of Gulab Tulsiyani. Mr. Tulsiyani had kept that amount on the sofa after holding GC notes with his right hand. The amount was demanded by him. After that I came out from there telling that I had forgotten the key of my vehicle and thereafter I flashed the signal after which the team members entered in the house through drawing room and bed room. Mr. Tulsiyani rushed towards the toilet. He torn away some notes. He was throwing the GC notes in the toilet R K Joshi caught hold both the hands of Gulab Tulsiyani in the toilet by his wrists. The notes were got collected from the witness. Number of GC notes were got tallied with the Handing Over memo and found the same. both the hands of accused were got washed separately by R K Joshi in a vessel. Wash had turned pink which was preserved in the bottles. Bottles were sealed.
Today I have seen 20Govt. Currency notes of Rs. 100/ denominations each. (Witness after tallying the numbers of GC notes with the handing over memo already Ex PW3/A has stated that these are the same currency notes Ex C1 to C25 which were recovered from the toilet of the house of accused) . Some of the GC notes are in torn condition. I cannot tell how these GC notes were torn as I came out of the toilet.
I have seen Handing Over Memo already Ex PW3/A which bears my signatures at point Y on each page. I have also seen recovery memo already Ex PW3/B which bears my signatures at point Y. I also identify my signatures at point C on memo Ex PW6/A which was prepared when sealed cassette was opened and played on micro C C No.49/04 35/104 cassette tape recorder."
In his cross examination, in this regard, this witness has deposed as follows:
"The sofa set on which we sat in the house of accused was having cloth covering. Bribe money was not kept on the sofa by Ajesh Mittal. It was given in the hand of accused who kept the same on the sofa. No wash of the sofa was taken. I had told the TLO on the spot afterward that bribe money was kept by the accused on the sofa. Ajesh Mittal was also present in the room who had given the money. I had given the signal after coming out of the gate of the house of accused to the trap team. "
54 With regard to recovery of tainted money independent witness PW3 M R Aggarwal has deposed as follows:
"At about 8 A M Mr. Ajesh Mittal and Siromani Kumar went inside the house of Sh.
Gulab Tulsyani. After about 10 Minutes Siromani Kumar came outside the house and gave pre decided signal to the police party. After some minutes Mr. Ajesh Mittal also came out of the house alongwith Mr. Gulab Tulsyani. Then the police party including myself rushed towards the residence of Mr. Tulsyani and on suspicion Mr. Tulsyani also ran back inside his house. We also rushed inside the house to recover the bribe amount. I entered through the drawing room of the house and some members of trap party also entered through the other door of the house. His wife, and his son were also present in the house and they tried to obstruct the activities of raiding party. Then we found that Mr. Tulsyani present in the court (witness has correctly identified the accused) was trying to tear of the GC notes near C C No.49/04 36/104 wash basin in the bath room. Then the police party caught hold Mr. Tulsyani from both the wrists and was taken to drawing room. The GC notes which were in the hands of Tulsyani were taken from the hands of accused from the bath room. Thereafter Gulab Tulsyani was brought to drawing room........"
.... " All the persons present there including the wife of accused and his family members were came in the drawing room when the accused was brought from toilet cum bathroom to drawing room. Nothing was said by the family member of the accused but the atmosphere had become tensed. I had collected the currency notes some of the currency notes were laying in the wash basin which I had collected myself and handed over to the IO. Out of the currency notes which I had picked up from below the wash basin some were torned one and the remaining currency notes were also picked up by me some from outside the bathroom and some from other place now I am unable to recollect as it is an old matter. Today I have seen currency notes recovered from the premises of Sh. Gulab Tulsyani which are amounting Rs.2000/ and are Ex.C1 to C25 which have been compared by their numbers mentioned in handing over memo which is Ex.PW3/A on which I can identify my signature at point X on every page of it. Then the hand wash of both the hands were taken by CBI officials separately. On diping both the hands of accused in chemical solution separately and both the solutions turned pink. Then the same was sealed in two separate bottles with labled as left hand wash and right hand wash. The same is Ex.C26 and C27, respectively."
C C No.49/04 37/104 55 In his cross examination this witness, in this regard, has deposed as follows:
"After receiving signal from Srimoni Kumar we all proceeded towards the house of the accused. CBI officers were ahead of me. We first entered a room where a sofa set was lying. In that room I heard some voices coming from gallery side hence, I went towards that gallery. A kitchen and bathroom was by the side of gallery where accused Tulsiyani was present and some other persons including family members and CBI personnel were present. I had gone to that gallery through drawing room where the sofa set was lying. When I entered inside the gallery accused was trying of tear of the GC notes and CBI officials were trying to come over it. Thereafter both the hands of the accused were caught by the wrist. I had entered the bathroom as well as some GC notes were lying on the floor of the bathroom. Now I do not remember whether the floor of the bathroom was tiled or marbled. Toilet was also in that bathroom. Washbasin was not inside the bathroom. Few of the currency notes were lying in the bathroom were wet. Now I do not remember whether I had told in my statement that some of the GC notes were wet or not. Bathroom was of about 35 to 40 sq. feet in dimension as far as now I recollect. Site plan was prepared on the spot in my presence. I have seen site plan Ex.PW3/DB (D6). It is correct that in the site plan the entry from it in the gallery is not visible. Some of the currency notes were collected from the floor of the bathroom and some currency notes collected from the washbasin which was outside the bathroom.
Now I did not remember from which room Mr. C C No.49/04 38/104 Joshi had gone to the bathroom."
56 PW5 the other independent witnes S T Mukkawar has also corroborated the above version with regard to recovery of tainted amount from the possession of accused. Relevant portion of his statement, in this regard, is as under;
"And after a short while on receiving of appointed signal the members of trap party standing outside rushed inside the house of accused Gulab Tulsiyani. When I reached inside the house Mr M R Aggarwal was already reached in the house and he was standing on the gate of bathroom. In the bath room Joshi and one or two other CBI officer holding Mr Tuliyani by his both the wrist. Perhaps Gulab Tulsiyani is present in the Court. One lady was also present in the bath room who was dragged out from the bath room by the lady constable. That lady must be opposing the trap party hence the lady constable was dragging her out from the bath room. Thereafter Tulsiyani was brought to the drawing hall . GC notes were lying scattered on the floor of bath room . Mr M R Aggarwal and one CBI officer had collected those GC notes at the asking of Dy SP. Some GC notes were in torn condition. Mr M R Aggarwal had brought those GC notes to Dy SP. We had tallied the number of GC notes with the hading over memo Ex PW3/A, which also bears my signatures at point B , which was prepared in the office of CBI. The numbers of GC notes correctly tallied . The GC notes are Ex C1 to C25 ( Some GC notes are in torn condition that is why the GC notes were in 25 in number ) Witness has correctly identified the GC notes C1 to C25 after talling with Ex C C No.49/04 39/104 PW3/A. Wash of both the hands o accused was taken separately in the solution prepared of Sodium Carbonate by dipping the fingers in the solution, wash of both the hand fingers was turned pink. The hand washes of both the hands were poured in two separate bottles and both the bottles were sealed separately. I and Mr M R Aggarwal put their signature on cloth wrappers affixed on both the bottles. Both bottles are labelled L and R . I can identify my signature at point B which are now in feded condition . Cloth wrappers are already Ex P28 and 29 and bottles Ex C26 and C27. The GC notes and bottles were taken into possession vide recovery memo Ex PW3/B on which I can identify my signatures at point D."
57 In his cross examination, in this regard, this witness has deposed as follows:
"I had seen the signal flashed from the spot. The complainant and Shriomani Kr had come out of the house but I do not remember who had flashed the signal out the two. I was standing across the road . All other team members were occupying their position at different place. Mr Joshi on the road near the house of accused. Lady constable was also standing beside Mr Joshi. I do not remember whether any person was standing in the street ( Gali ) or not. During the raid proceedings I had entered in side the house of accused. I cannot recollect whether any door of the house of accused opening towards the house or accused or not. I do not remember from which side we had entered the house of accused. I do not recollect now whether I had seen any person in the bed room of the accused when I entered in it. From the bed room I had gone towards bathroom side.C C No.49/04 40/104
Bathroom was besides the bed room. Now I do not remember whether the bathroom was attached with the bed room . I had gone upto the bathroom through the bed room. When I entered the accused was in the bathroom . Accused was brought from bath room to the drawing room after apprehending. I had gone in the drawing room intersee as the same are intersee connected. I had seen the bathroom however I do not remember whether it was cemented or tiled . I did not enter the bathroom. I can tell where the GC notes were lying int he bath room as the same were visible from outside bath room. GC notes were mainly lying on the floor. I cannot recollect whether the floor was wet or not. Some currency notes were torn but I cannot say who had torn the same. It is incorrect to suggest that I had not entered in the house. It is incorrect to suggest that there was no passage from the bed room to the bath room and to the drawing room. It is incorrect to suggest that I had came out of the house of accused form the bed room itself. I do not remember whether Mr Joshi had prepared any site plan or not in my presence. Now I cannot tell from the site plan Ex PW3/DB as how I had gone upto bathroom from the bed room . I am unable recollect as to how I entered the drawing from the bed room. It is incorrect to suggest I am intentionally telling lie and I had not entered the house of accused."
58 With regard to the recovery of tainted money from the possession of accused TLO R K Joshi has deposed as follows:
"At about 8.10 am, Sh.Shiromani Kumar and Ajesh Mittal entered the house of Sh.Gulab Tulsyani. Ct.Suraj Bhan remained sitting in the car posing as Chowkidar of the factory of C C No.49/04 41/104 Sh.Mittal. At about 8.18 am, Sh.Ajesh Mittal came out of the house of Sh.Tulsyani to take the keys of the car. Shiromani Kumar also followed him and have the appointed signal by scratching his head. Immediately, we rushed to the house of Sh.Tulsyani who had come to the gate to see them off. Seeing us, Sh.Tulsyani ran back to the drawing room and picked up the GC notes and entered the bathroom behind. We also rushed. He started tearing off the notes. He was held by me and Sh.Vijay Rawal, Inspector. The independent witnesses and other members of the party also reached the spot. Sh.Tulsyani was disclosed our identity. He threw the GC notes in the bathroom itself. Sh.Aggarwal, witness was directed to recover the GC notes from the floor of the bathroom. Sh.Tulsyani was brought back to the drawing room where his hand wash of both the hands was taken. The solutions turned pink which were transferred into clean glass bottles and sealed with the seal 34/84. The seal was handed over to Sh.S.T.Mukkawar."
59 In this regard, this witness, in his cross examination, has deposed as follows:
"I entered house of accused through his drawing room as far as I remember. When I entered I saw Sh Gulabi Tulsiyani picking up the tainted money from the sofa and rushing to the bathroom, which was near to drawing room. I do not remember the location of the door in the drawing room and the bath room. However we followed accused to the bathroom who was tearing of the tainted money and was able to tear of some of them.
The hand wash is always duly tightly C C No.49/04 42/104 packed in trap cases. The neat and clean bottles without wrapper pasted thereon were used initially. On seeing the bottles which are marked with the case No. RC40/86 which is Ex P.27 and P.26 it is seen that some label of SURA is there on one bottle, since it is matter relating to 25 years old I do not exactly remember whether the labels were as it is.
Court Observation:
On one side of both the bottles there is printed label having printed material . On the other side white paper on which RC No. and other particular of this case are mentioned is affixed on some label.
I do not remember whether the sofa was having cloth covering or rexin covering . I do not remember if the seat of the sofa were detachable or not. It is correct that no wash of sofa seat was taken. It is incorrect to suggest that the money was forcibly put into the hand of accused and the ensuing scuffle the currency notes got torn of."
60 Tainted GC notes were recovered vide recovery memo Ex PW 3/B which has been signed by M R AGGarwal, S T Mukkawar, Shiromani Lal, Ajesh Mittal, R K Joshi etc. copy of which was also given to accused Gulab Tulsiyani which he had received vide his endorsement at point N under his signatures. All these facts have also been specifically mentioned in the recovery memo which has been proved by all the above referred witnesses in this court, in their statements.
C C No.49/04 43/104 61 Ld. Defence Counsel referring site plan Ex PW3/DB argued that there is no direct entry from the drawing room to the bathroom. Ld. Defence Counsel argued that it has been admitted by complainant, shadow witness and TLO that there is no passage from the drawing room or from the adjoining bed room to the bath room as indicated in the site plan hence there is no truth in the story of prosecution that accused had torned tainted GC note in the bathroom. As discussed above all the witnesses PW3 M R Aggarwal, PW5 S T Mukkawar, PW6 Shiromani Kumar, PW7 Ajesh Mittal and PW8 Sh. R K Joshi have specifically deposed that on seeing the trap team accused after picking up tainted GC notes from the sofa rushed in bathroom; and was in the process of torning of GC notes when he was apprehended. PW5 S T Mukkawar has explained the way from which they reached to bathroom following the accused. Their testimony in this regard, remained unshaken. In these circumstances there is no merit in this argument.
62 Demand of illegal gratification made by accused at the time of trap and acceptance of the same has also been proved from the tape recorded conversation, transcription of which is Ex PW3/DC. The relevant portion of the same is as under: C C No.49/04 44/104
"C C No.49/04 45/104
63 PW7 Complainant Ajesh Mittal has deposed that he was given a tape recorder with the instruction to switch it on after reaching near the accused. In this regard, relevant portion of his statement is as under;
"I had switched on the micro cassette recorder after entering in the drawing room of the accused. Now I do not remember whether it switched off automatically or I had switched it off.
Shiromani had not spoken any word during the period till we remained in the house of accused. Prior to apprehending the accused there was no noise. I canot tell whether anybody had spoken or uttered even after apprehension of accused by CBI officer on the spot. I had not asked Shiromani to remain silent. Now I do not remember whether R K Joshi had told Shiromani to remain silent. Or not. It is incorrect to suggest that on 7.6.86 my no conversation was recorded with the accused at his house."
64 With regard to preparation of the transcription of the recorded conversation, this witness has further deposed as follows:
"In the office, the cassette was opened in the presence of two witnesses and the transcription of conversation was prepared and cassette was again resealed. Then after sometime I was allowed to go but I cannot C C No.49/04 46/104 recollect at what time I left CBI office. The recovery memo already exhibited as PW3/B bears my signature at point A and memo already exhibited as PW6/A also bears my signature at point A. Transcription of cassette was prepared in my presence on which I identify my conversation with accused. Same is already exhibited as PW3/DC. My statement was recorded. "
65 In this regard, in his cross examination, this witness has deposed as follows:
...... "The cassette having spot recorded conversation was desealed in the CBI office in my presence. Transcription of that cassette was prepared and it was resealed. Now I do not remember who had prepared the transcription and how much time was consumed in it.".......
......... "While preparing the transcription micro cassette was played again and again to write the transcription. Now I cannot tell the time spent for preparation of transcription. CBI officers and independent witnesses were also present there at that time. I had also signed it. Witnesses had also signed it. Attention of witness is drawn towards transcription Ex PW3/DC which does not bear either his signature or any other witness."
66 PW6 Shiromani Kumar who had accompanied the Complainant to the house of accused at the time of trap has also deposed that a tape recorder fitted with micro cassette was given to Ajesh Mittal who had kept the same in his payajama. In his cross examination PW6 has deposed that blank cassette was given to C C No.49/04 47/104 Complainant Ajesh Mittal alongwith tape recorder. It was Sony Micro Cassette. He had denied the suggestion that micro cassette tape recorder was given to him. PW6 has also deposed that transcription of the recorded conversation was also prepared in the CBI office. Independent witness PW3 M R Aggarwal has deposed as follows, in this regard :
"One pocket micro Sony Cassette tape recorder fitted with blank cassette was also given to Sh. Ajesh Mittal and was directed to switch on the same before talking to Mr. Tulsyani."
67 In his cross examination, with regard to preparation of the transcription of the recorded conversation, this witness has deposed as follows:
"Tape recording conversation was played in the CBI office after returning of office after completing the proceedings. its transcription was also prepared. I do not remember who had prepared that transcription and I do not remember whether I has signed the same or not. It is correct that on transcription Ex.PW3/DC(D7) my signatures are not there. It is incorrect to suggest that I had not heard any conversation. It is also incorrect to suggest that no transcription was prepared in my presence."
68 The other independent witness PW5 ST Mukkawar has C C No.49/04 48/104 also deposed that a pocket micro cassette tape recorder was given to Ajesh Mittal . Relevant portion of his statement in this regard is as under:
"Then a pocket Micro Cassette tape recorder make Sony fitted with blank cassette was also given to Sh. Ajesh Mittal. After briefing about its working and he was directed to switch on tape recorder before talking to Mr Tulsiyani."
69 With regard to preparation of transcription of recorded conversation, this witness has deposed as follows:
"After completing the house search CBI team left the house for CBI office alongwith Mr Tulsiyani and reached the CBI at about 2.15 pm. Then after reaching there the sealed cassette was open in my presence as well as in the presence of Mr Aggarwal and its transcription of conversation was prepared which was containing the fact of demand and acceptance of bribe by the accused from Mr Mittal, the cassette was again sealed in our presence and duly initialized by us."
70 In this regard in his cross examination, this witness has deposed as follows:
" Micro cassette was taken back from the complainant . I do not remember whether the same was played on the spot or not. However I remember it was played in CBI office. Micro cassette was sealed on the spot. It was desealed in the CBI office. I donot know whether any memo C C No.49/04 49/104 was prepared with regard to desealing of cassette."
71 PW8 Dy. SP R K Joshi, TLO of this case has also specifically deposed that complainant was given a micro cassette tape recorder with the direction to switch it on before talking to accused. Relevant portion of his examination in chief is as under:
"A micro cassette tape recorder was also arranged and a blank cassette was fitted into it. The blank cassette was played before the independent witnesses to show that it did not contain any conversation. Ajesh Mittal was directed to switch on the tape recorder before talking to Sh.Gulab Tulsyani and record the conversation which takes place between them."
72 This witness has also deposed that after completion of trap proceedings in the house of accused tape recorder was opened and cassette was taken out and sealed with the seal 34/84. Relevant portion of his statement in this regard is as under:
"The tape recorder was opened and the cassette was also sealed with the same CBI seal i.e. 34/84."
73 He has prepared the transcription of the tape recorded conversation in his own handwriting and proved the same in the court after hearing the micro cassette. Relevant portion of his statement, in this regard, is as under:
C C No.49/04 50/104
"In CBI office, the sealed cassette was opened in the presence of independent witnesses and the tape was played to find out the recorded conversation. A script of the same was prepared which is already Ex.PW3/DC. This script is written from point A to A1 in my writing.
At this stage, ld.SPP made a request that micro cassette may be desealed to put to the witness. Request allowed. The packed containing micro cassette is desealed in which one khakhi envelope was found having micro cassette in its plastic cover. It has been shown to the witness who after seeing the same identified the micro cassette as the cassette used in this case. The same is Ex.C30. Memo already Ex.PW6/A was prepared for opening and sealing of the micro cassette. It bears my signatures at point D. The seal was again handed over to Sh.S.T.Mukkawar."......
....... "At this stage, ld. Prosecutor made a request that he may be allowed to play the micro cassette to tele with the transcription hence sealed envelope be desealed to take out the microcassette. Request allowed. Sealed envelop opened and micro cassette taken out of it and inserted in the microcassette player produced by Ct. Narender Singh from Malkhana CBI and played to the witness.
Witness after hearing the microcassette played in this court confirmed the fact by comparing C C No.49/04 51/104 the voice from the transcription,already Ex. PW3/DC by ticking with red ink and make it clear that the dialogs recorded in front of Ajesh Mittal complainant is mentioned in this transcription as AM and the voice of Gulab Tulsyani in the shape of dialogs mentioned in transcription as GT. He further confirmed that voice recorded in microcassette is the same as mentioned in corresponding dialogs of Ajesh Mittal and Gulab Tulsyani in Ex. PW3/DC."
74 This witness has been cross examined at length. relevant portion of his cross examination with regard to tape recorded conversation and preparation of its transcription is as under;
"The seal of the tape was opened for noting down the conversation in the CBI office and it was again seal with the same seal which was obtained and returned to the same witness. A memo Ex PW6/A is prepared in regard to the preparation of transcription and playing the cassette in which it is mentioned that the tape has again been sealed by CBI seal 34/84 and given back to Sh S T Mukhawar."
75 This is the only cross examination of this witness conducted qua the tape recorded conversation and preparation of its transcription. From a bare perusal of this cross examination it is clear that nothing such has come out in the cross examination so as to disbelieve the version given by this witness. With regardto C C No.49/04 52/104 recording of conversation between complainant and accused at the time of trap and with regard to preparation of transcription of the same, in these circumstances, this court is of opinion that prosecution has proved beyond reasonable doubts that complainant had recorded the conversation between him and accused at the time of trap correctly and Ex PW 3/DC is its correct transcription. 76 It is argued by Ld. Defence Counsel that prosecution has neither taken the sample voice of accused nor sent the tape recorded conversation to the CFSL for comparing it with the voice of accused. In these circumstances no reliance can be placed on the tape recorded conversation. It is also argued that transcription Ex PW3/DC of the tape recorded conversation does not bear signature of independent witnesses or the complainant or TLO. 77 It is correct that neither the sample voice of accused was taken nor the tape recorded conversation was sent to CFSL for comparison with the voice of accused. However, from the above discussion it is also proved on the file that complainant had identified his voice and that of accused after hearing the recorded conversation between them at the time of preparation of transcription Ex PW3/DC. Relevant portion of his cross examination in this regard, is as under:
C C No.49/04 53/104
"At the time of preparing of transcription I had identified my voice and that of accused."
78 Nothing has come on the record to prove that complainant has not correctly identified his voice and that of accused in the tape recorded conversation while preparing the transcription. It is well settled legal preposition that report of an expert whether handwriting expert or voice distinguishing expert is an opinion, which in itself is not conclusive. There are several authorities that expert's report cannot be relied upon without corroboration from independent evidence. Here, in the case in hand identification of voice by complainant during cross examination is a direct evidence and rather more credible than the report of an expert.
79 The evidence of complainant, in this regard, has also been corroborated by PW8 R K Joshi. Relevant portion of his statement in this regard, is as under:
..... "a script of the same was prepared which is already Ex PW3/DC. This script is written from point A to A1 in my handwriting."
80 For identifying the voice, he has further deposed as follows:
C C No.49/04 54/104
"Witness after hearing the microcassette played in this court confirmed the fact by comparing the voice from the transcription,already Ex. PW3/DC by ticking with red ink and make it clear that the dialogs recorded in front of Ajesh Mittal complainant is mentioned in this transcription as AM and the voice of Gulab Tulsyani in the shape of dialogs mentioned in transcription as GT. He further confirmed that voice recorded in microcassette is the same as mentioned in corresponding dialogs of Ajesh Mittal and Gulab Tulsyani in Ex. PW3/DC.
81 From the above discussion it is proved by complainant as well as TLO that recorded conversation is between accused and complainant and TLO has deposed that he has prepared the transcription of the tape recorded conversation correctly which is Ex PW3/DC on the identification of complainant Ajesh Mittal. In these circumstances not sending of cassette for distinguishing the voice of complainant and accused cannot be treated fatal to the prosecution.
82 It is also correct that transcription Ex PW3/DC does not bear anybody's signature. Ld. Defence Counsel argued that both the independent witnesses complainant and Shiromani Lal have deposed that they had signed the transcription but it does not bear anybody's signatures. Ld. Defence Counsel has also C C No.49/04 55/104 confronted all these witnesses with the transcription Ex PW3/DC with regard to their signatures. All these witnesses have admitted that it does not bear their signatures. Memo Ex PW6/A was made with regard to preparation of transcription of the tape recorded conversation which has the signatures of all these witnesses. The memo Ex PW6/A is dt. 7.6.86. All these witnesses have deposed that transcription of the tape recorded conversation was prepared on 7.6.86 itself in CBI office. According to TLO R K Joshi transcription Ex PW3/DC was prepared on 7.6.86. Thus, all these witnesses corroborates the fact of preparation of transcription on 7.6.86. Memo Ex PW6/A with regard to preparation of transcription of tape recorded conversation is as under:
"In the presence of the signatories to this memo sealed cassette was opened and played on the micro cassette tape recorder. The transcription of the conversation has been taken down separately with the help of Sh. Ajesh Mittal. The tape has again been sealed by CBI seal 34/84 and given back to Sh. S T Mukkawar."
83 This memo has been signed by Shirmani Lal, Ajesh Mittal, S T Mukkawar, M R Aggarwal and R K Joshi. These witnesses have deposed that they had signed the transcription Ex PW 3/DC, however, their signatures are not available on Ex PW C C No.49/04 56/104 3/DC but on Ex PW6/A, the memo vide which transcription Ex. PW3/DC was prepared. Statements of these witnesses have been recorded in this court in the year 2010 and 2011 i.e.after the lapse of about 2425 years. It appears that this mistake is because of long lapse of time. In these circumstances there is no merit in the argument that transcription of tape recorded conversation was not prepared in the presence of these witnesses because transcription Ex PW 3/DC does not bear their signatures.
84 Ld. Defence Counsel argued that in the transcription Ex PW 3/DC the wordings "when we had occupied our seat thereafter accused had asked whether I had brought the money or not." as deposed by the complainant is not present in the tape recorded conversation or in its transcription which speaks the volume of malafide intention of complainant and other witnesses and also proved the unfair investigation carried out by TLO. Even if this portion is excluded still there is enough material in the tape recorded conversation to prove the demand of illegal gratification made by accused and its acceptance on the spot. Trap was conducted on 7.6.86 while the statement of witnesses in this case has been recorded in the year 2010 and 2011 i.e. after a lapse of C C No.49/04 57/104 about 2425 years. In such circumstances such omission can be the result of the loss of memory because of long lapse of time. In these circumstances this omission is not fatal to the case of prosecution. 85 From the forgoing discussion in this judgment it is also proved that accused after seeing the trap team rushed to the bathroom alongwith the trap money and torn some of the tainted GC notes.
86 In a prosecution for the offence of bribery the conduct of accused is relevant U/S 8 of Evidence Act. In this case it is proved beyond reasonable doubts on the judicial file that when trap team entered in the house of accused he rushed to the bathroom alongwith the tainted GC notes and tried to flush them out. He had also torn some of the GC notes which were collected by PW3 M R Aggarwal from the floor of bathroom.
87 In his statement U/s 313 Cr PC accused has taken a defence that he did not go to his chamber nor Ajesh Mittal came inside his chamber. He had never demanded any money rather complainant forcibly tried to thrust the money in his hands and in this process some currency notes were torn off. Since no money was kept on sofa that is why no wash of the sofa was taken. He was manhandled.
C C No.49/04 58/104 88 Recovery memo Ex PW3/B was prepared on the spot and a copy of the same was given to accused which he has received vide his endorsement with signature at point N, " Received copy of the recovery memo".
Sd/ accused 89 Accused who was a judicial official, knowing the law well could have mentioned his above defence in his endorsement. It is not his case till date that TLO or any CBI officer had not allowed/restricted him to mention his above defence at the time of receiving of the copy of recovery memo.
90 According to accused he was manhandled by the CBI. Judicial Officers are under the direct control and protection of Hon'ble High Court . If the GC notes were forcibly thrust in his hands or he was manhandled by the CBI officers, he could have brought these facts to the notice of Hon'ble High Court. He could have also filed a criminal complaint in the court having competent jurisdiction. But he has not done so for the reasons best known to him.
91 A suggestion, in this regard, has been given only to TLO RK Joshi, in his cross examination, which is as under:
"It is incorrect to suggest that the money was forcibly put into the hand of accused and the C C No.49/04 59/104 ensuing scuffle the currency notes got torn of."
92 No such suggestion has been given to Complainant Ajesh Mittal and Shiromani Kumar who had accompanied the complainant in the house of accused Gulab Tulsiyani and witnesses the exchange of transaction of bribe. Both these witnesses are the best person to depose in this regard. Similarly, no such suggestion has been given to both the independent witnesses M R Aggarwal and S T Mukkawar.
93 In C K Damodaran Nai Vs. Govt. of India, AIR 1997 Supreme court 551, Hon'ble Supreme Court, in such circumstances, has held as follows:
"Prevention of Corruption Act (2 of 1947), Ss. 5 (2), 4 - Bribery - Accused, a public servant alleged to have obtained sum of Rs.1,000/ as illegal gratification from hospital authorities - Recovery of marked currency notes from possession of accused not disputed - Evidence of independent witness that they saw complainant handing over notes to accused and accused putting them into his pocket - Defence plea that complainant thrusted said notes into pocket of accused is false - Presumption under S. 4 attracted
- Non rebuttal of said presumption by accused - Conviction under S. 161 of Penal Code proper."
94 In the present case complainant as well as Shiromani Kumar has specifically deposed that money was demanded by accused and after receiving it from the complainant accused had C C No.49/04 60/104 kept the same on the sofa and when trap team entered in the house of accused, accused after picking up the tainted money ran towards bathroom and he was apprehended by CBI officers while he was in the process of torning the tainted GC notes. 95 Hence taking these defences at the time of recording of his statement U/s 313 Cr PC, appears to be concocted and after thought.
96 Hon'ble Supreme Court in Parkash Chand Vs Delhi Admn AIR 1979 SC 400 in para No.8 has observed as follows:
" It was contended by the ld. Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by section 162 Criminal Procedure Code. He relied on a decision of the Andhra Pradesh High Court in D.V. Narisimhan V.State,(AIR 1969 andh Pra
271). We do not agree with the submissions of Sh.
Anthony. There is a clear distinction between the conduct of a person against whom an offence is alleged which is admissible under section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by sec. 162 Criminal Procedure code. What is excluded by sec. 162 Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person ( not amounting to a statement) when confronted or questioned by a police officer C C No.49/04 61/104 during the course of an investigation. For example, the evidence of the circumstances, simplicitor,that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence where found hidden, would be admissible as conduct, u/s 8 of the evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act(vide Himachal Pradesh Administration Vs. Om Prakash AIR 1972 SC 975 97 From the above discussion it is again proved that accused GulabTulsiyani had accepted Rs. 2, 000/ voluntarily and consciously which was also recovered from his conscious possession.
98 From the foregoing discussion in this judgment it is also proved that hand washes of both the hands of accused was taken which had turned pink in colour which was preserved in separate bottles and sent for chemical examination. PW2 Sh.V S Bisaria who had chemically examined the hand washes has deposed that chemical examination of both the samples had given positive test for phenolphthalein and sodium carbonate. He has proved his report Ex PW2/A in this regard.
99 It proves the presence of phenolphthalein powder on C C No.49/04 62/104 both the hands of accused. Phenolphthalein powder appeared on the hands of accused because he had received the phenolphthalein quoted GC notes from Ajesh Mittal and kept the same on the sofa. 100 The importance of phenolphthalein test was underline by the Hon'ble Supreme Court in Som Parkash Vs State of Delhi AIR 1974 Supreme Court 989, where in para 10 it is held as under:
" ............... of course, the oral evidence of PWs 1and 4 by itself, if believed as rightly believed by the High Court , proves the passing of the money to the accused and its production by him when challenged by P.W 7 .
The fact is indisputable that the hands, the handkerchief and the inner lining of the trouser pocket of the accused turned violet when dipped in soda ash solution. From this the State counsel argues that on no hypothesis except that the notes emerged from the accused's Pocket or possession can the triple colour change be accounted for . The evidence furnished by inorganic chemistry often outwits the technology of corrupt officials, provided no alternative reasonable possibility is made out. The appellant offers a plausible theory. PW 1 kept the notes with him and his hands thus carried the powder. He gave a bottle of cake to the accused and the bottle thus transmitted particles of phenolphthalein to the latter's hands. He ( the accused ) wiped his face with the handkerchief and put it into his trouser pocket thus contaminating the lining with the guilty substance. Moreover, the inner lining was dipped by PW 7 with his hands C C No.49/04 63/104 which had the powder . Thus, all the three items stand explained, according to him. These recondite possibilities and likely freaks have been rejected by both the courts and we are hardly persuaded into hostility to that finding. It is put meet that science oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency then swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt."
101 In Raghbir Singh Vs State of Punjab (1976) 1 SCC 145 while discarding the oral and documentary evidence laid on behalf of the prosecution is not such as to inspire confidence in the mind of the Court, the Supreme Court observed in para No.11 as follows: " We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked current notes, which are used for the purpose of trap, are treated with phenolphthalein power so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is something of a dubious character for the purpose of deciding the fate of the public servant."
C C No.49/04 64/104 102 It is argued on behalf of accused that no wash of the sofa was taken which proves his defence that GC notes were forcibly thrust in his hands and he had not demanded the bribe. 103 It is correct that no wash of sofa was taken, PW6 Shiromani Kumar in his cross examination on behalf of accused has specifically deposed that sofa was having cloth covering Relevant portion of his cross examination in this regard, is as under:
"The sofa set on which we sat in the house of accused was having cloth covering Bribe money was not kept on the sofa by Ajesh Mittal. It was given in the hands of accused who kept the same on the sofa. No wash of the sofa was taken."
104 Dy. SP R K Joshi, TLO of this case, who had taken the hand washes and has not taken the wash of sofa has appeared in the witness box as PW8. He has been cross examined at length. Relevant portion of his cross examination, in this regard is as under:
"I do not remember whether the sofa was having cloth covering or rexin covering . I do not remember if the seat of the sofa were detachable or not. It is correct that no wash of sofa seat was taken."
105 Not even a suggestion has been given to this witness that he has not taken wash of sofa because tainted money was not C C No.49/04 65/104 kept on the sofa by the accused after accepting the same from the complainant.
107 Sh.R K Joshi has specifically deposed that he saw accused picking up the tainted money from the sofa and rushing to the bathroom. Relevant portion of his statement during his cross examination is as under:
"When I entered I saw Sh Gulabi Tulsiyani picking up the tainted money from the sofa and rushing to the bathroom, which was near to drawing room. I do not remember the location of the door in the drawing room and the bath room. However we followed accused to the bathroom who was tearing of the tainted money and was able to tear of some of them."
108 This version of TLO has been corroborated by complainant, Shiromani Kumar and both the independent witnesses. 109 From the above quoted cross examination of TLO it is clear that nothing such has come on the judicial file to disbelieve the prosecution version with regard to not taking of wash of sofa. As the sofa was having cloth covering and was a big article thus taking of its wash was not possible in these facts and circumstances of this case, no adverse inference can be drawn against the prosecution, on this count.
C C No.49/04 66/104 110 It is argued on behalf of accused by Ld. Defence Counsel that the bottles containing hand washes Ex P26 & P27 were not the clean bottles. The bottles were having label of Sura which shows tampering with of the wash bottles. Ld. Defence Counsel has cross examined the TLO, in this regard, in detail. Relevant portion of his cross examination, in this regard, is as under:
" I entered house of accused through his drawing room as far as I remember. When I entered I saw Sh Gulabi Tulsiyani picking up the tainted money from the sofa and rushing to the bathroom, which was near to drawing room. I do not remember the location of the door in the drawing room and the bath room. However we followed accused to the bathroom who was tearing of the tainted money and was able to tear of some of them.
The hand wash is always duly tightly packed in trap cases. The neat and clean bottles without wrapper pasted thereon were used initially. On seeing the bottles which are marked with the case No. RC40/86 which is Ex P.27 and P.26 it is seen that some label of SURA is there on one bottle, since it is matter relating to 25 years old I do not exactly remember whether the labels were as it is.
Court Observation:
On one side of both the bottles there is printed label having printed material . On the other side white paper on which RC No. and other particular of this case are mentioned is C C No.49/04 67/104 affixed on some label.
I do not remember whether the sofa was having cloth covering or rexin covering . I do not remember if the seat of the sofa were detachable or not. It is correct that no wash of sofa seat was taken."
111 Accused Gulab Tulsiyani has not denied the handling of the tainted money which is clear from his statement recorded U/s 313 Cr PC wherein he has categorically stated that "Rather he forcibly tried to thrust the money in my hand and in the process some currency notes were torn off."
112 From the above defence of the accused he has tried to explain the presence of phenolphthalein on his hands, thus, he is not denying the presence of phenolphthalein on his hands In these circumstances there is no merit in the argument that wash bottles having label of sura are tampered.
113 From the above discussion, it is again proved that accused had voluntarily and consciously accepted the bribed money from the complainant Ajesh Mittal was recovered from his conscious possession.
114 When it is proved that there was voluntary and conscious acceptance of the money by the accused, there is no C C No.49/04 68/104 further burden cast on the prosecution to prove by direct evidence the demand or motive, in view of Section 4 PC Act, 1947 which is akin to Section 20 of PC Act, 1988. It has been held so by Hon'ble Supreme Court in B. Noha Vs. state of Kerala, 2006 IV AD 465. 115 Hon'ble Supreme Court in State of Andhra Pradesh Vs. R Jeevaratnam, 2004 (2) JCC 1161 has held as follows in this regard:
"Prevention of Corruption Act, 1988 - Sec. 20 (1) Presumption under - Respondent caught redhanded with the marked money in a briefcase carried by him - Presumption that he accepted illegal gratification arose".
116 Hon'ble Supreme Court in Madhukar Bhaskarrao Josi Vs. State of Maharashtra (2000 (8) SCC 571) has held as follows in this regard:
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premises that there was C C No.49/04 69/104 payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it".
117 This decision was followed by Hon'ble Supreme Court in M. Narsinga Rao Vs. State of A.P. (2001 (1) SCCC 691). wherein it has been held that " There is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from PW1. It was held in the decision in State of A P Vs. Kommaraju Gopala Krishna Murthy (2000 (9) SCC 752), that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused."
118 A Full Bench of three Judges of Hon'ble Supreme Court in Raghubir Singh Vs. State of Punjab AIR 1974, 677 has held that the very fact that accused was in possession of marked currency notes against an allegation that he had demanded and C C No.49/04 70/104 received the amount is "res ipsa loquitur".
119 In para no.11 of this authority it is held as follows, by Hon'ble Supreme Court:
"Even if the statutory presumption under Section 4 is unavailable when the charge is under Section 5 (1) (d) read with section 5 (2) Courts may presume what may in the ordinary course be the most probable inference. That an Assistant Station Master had in his hand a marked currency note made over to him by a passenger whose bedding had been detained by him for which no credible explanation was forthcoming, and he was caught redhanded with the note is a case of res ipsa loquitur. The very thing speaks for itself in the circumstances."
120 A Full Bench of Three Judge of Hon'ble Supreme Court in V D Jhingan Vs. State of UP AIR 1966 Supreme Court 1762 has held that mere receipt of money is sufficient to raise the presumption u/s 4 of P C Act 1947 which is similar to that of Section 20 of P C Act, 1988. The relevant portion of this judgment is as under:
"To raise the presumption u/s 4 (1) of Prevention of Corruption Act, the prosecution has to prove that the accused has received "gratification other than legal remuneration".
When it is shown that the accused has received a certain sum of money which was not his legal remuneration, the condition prescribed by the section is satisfied and the presumption must be C C No.49/04 71/104 raised. Further the mere receipt of "money" is sufficient to raise the presumption."
121 In similar facts and circumstances Hon'bleSupreme Court in T Shanker Prashad Vs. State of VP AIR 2004 Supreme Court 1242 has held as follows:
"Prevention of Corruption Act (49 of 1988), S.7,S.13 - Bribery Trap case Allegations that accused officer and his junior assistant working in commercial tax department demanded and accepted bribe amount of Rs.300/ from complainant, a dealer of grocery articles for way bills Evidence of complainant and trap witnesses established recovery of money from accused Junior Assistant Involvement of both accused established by prosecution evidence -
Presumption can be raised that accused persons accepted illegal gratification Defence plea that amount was paid towards tax Not tenable as there was no tax due and on contrary complainant was entitled to some refund Conviction of accused persons, proper."
122 With regard to presumption U/s 20 of P C Act of 1988 and with regard to standard of proof of explanation , in this authority Hon'ble Supreme Court has held as follows:
"Presumption of Corruption Act (49 of 1988), S.20
- Illegal gratification, acceptance of by public servant Presumption under S.20 Is a presumption of law and cast an obligation on Court to operate it in every case brought in It is rebutted by proof and C C No.49/04 72/104 not by explanation which may seem to be plausible.
Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled. Unless the presumption is disproved or dispelled or rebutted the Court can treat the presumption as tantamounting to proof. Thus, presumption under S. 20 is a rebuttable presumption and it is rebutted by proof and not by explanation which may seem to be plausible ."
123 It is argued on behalf of accused that banks normally close at 5 PM thus there is no possibility of informing the General Manager of Bank after 9.15 PM and issuing direction by GM to his subordinates in writing to reach CBI office on the next morning at 5 A M which proves that TLO is an impulsive liar and can go to any extent while telling lies. In this case FIR was registered at 9.30 PM on 6.6.86. Time 9.00 PM is mentioned on the top of FIR. It is also mentioned in the FIR that case was entrusted to Sh. R K Joshi, Dy. C C No.49/04 73/104 SP for investigation. TLO RK Joshi has deposed that requisition for two independent witnesses was sent to Oriental Bank of Commerce. Relevant portion of his examination in chief is as under:
"At about 9.15 pm, I received a copy of the FIR and the complaint. The FIR is Ex.PW8/A. The same bears the signatures of Sh.V.N.Dixit, the then SP at point A. It was decided to lay a trap on the next morning. Accordingly, requisition for two independent witnesses was sent to the Oriental Bank of Commerce."
124 Dy.R K Joshi was the best person to explain the facts how the presence of these witnesses was secured. This witness has been cross examined at length however no question has been asked in this regard.
125 PW3 Sh. M R Aggarwal has specifically deposed in his examination in chief that he was directed in writing by his senior to join the investigation in this case. Relevant portion of his examination in chief, in this regard, is as under:
"I was working as Dy. Chief Manager in Oriental Bank of Commerce, Connaught Place since 1cx985. On 6.6.86 I was advised by Bank's General Manager Planning to associate CBI officials on a secret mission on 7.6.86 at 5.30 AM. As per advice I visited CBI office at about 6 PM on 7.6.86 and reported to Dy. Superintended of Police Mr. R K Joshi."C C No.49/04 74/104
126 This witness has been cross examined on behalf of accused. In his cross examination with regard to receiving of orders he has deposed as follows:
" On 06.06.86, I received orders from my office to appear before CBI office on next day in the morning at 5.30 a.m. I had received this order in writing. Now I do not remember whether I am in possession of those written orders or not as it is an old matter. I had not returned those orders to any one i.e. CBI. I used to sit on the first floor in my office while my General Manager used to sit on. the second floor. Other officers also used to sit on the second floor."
I had received order from my department on 6.6.86 with the directions to reach CBI on 7.6.86 at 5.30 AM. Accordingly I had reached CBI office at 5.30 AM on 7.6.86 I was provided vehicle by CBI to reach CBI office in the morning on 7.6.86. prior to that I had never gone to CBI office. After 7.6.86 I had not gone to CBI office. On 7.6.86 in the office of CBI I met Dy. SP Mr. Joshi perhaps on the fourth floor as far as I remember."
127 PW5 S.T. Mukkawar has also deposed in his examination in chief that on 6.6.86 he was advised by his GM to associate the CBI officials for a secret office work on 7.6.86. Relevant portion of his examination in chief in this regard is as C C No.49/04 75/104 under:
"In June, 1986 I was working as Law Officer, at Oriental Bank of Commerce, Head Office, New Delhi. On 6.6.1986 I was advised by our GM to associate CBI official for secret official work for the next date i.e.7.6.86 and to report CBI office on 7.6.86 for this purpose. On the next day i.e. 7.6.86 I reported CBI office at about 6 A M. I had reported Sh. R K Joshi, Dy. SP, CBI at the CBI office located at CGO Complex, New Delhi. Some other officials/members of CBI including other persons were also present. "
128 In his cross examination in this regard, he has deposed as follows:
"I remained posted in Vigilance Department of the bank from 1984 to 1998. I used to visit CBI office during my posting in Vigilance department of the bank off and on, on the instruction of my senior officer. I used to visit CBI office rarely since my posting in the vigilance department of bank as I was a Junior Officer. I was given written instruction to join CBI investigation in this case by G.M. but I am not having the same as it is 25 years old matter. I cannot produce the same now as it is not traceable.
Prior to this case I had not met Mr Joshi. On 7.6.86 I had gone to CBI office myself. I met R K Joshi in the CBI office on that day."
129 No question has been put to these witness as to how and at what time they had received the written orders from their C C No.49/04 76/104 seniors for joining the investigation in this case. 130 Even otherwise accused has admitted the presence of independent witnesses in the morning of 7.6.86, in the CBI office, which is clear from the cross examination of PW3. In cross examination a suggestion has been put to PW3 M R Aggarwal that on 7.6.86 he attended the CBI office on ground floor which is as follows;
"It is wrong to suggest that on 7.6.86 I attended CBI office on ground floor only. It is wrong to suggest that thereafter I was made to sit on the second floor."
131 In view of above discussion there is no merit in the argument of accused that these witnesses could not be served with the notice to appear in the CBI office at 5.30 PM on 7.6.86. 132 It is argued by Ld. Defence Counsel that accused has been falsely implicated in this case at the instance of Mr. S C Malik Advocate who nurtured some grudge against him and who was also a complainant in case CBI Vs. D N Kadiyan, the then MM, Delhi. 133 A suggestion has been given to PW6 Shiromani Kumar that Mr. Yadav advocate had taken Ajesh Mittal alongwith him to Dy. S P Mr. R K Joshi of CBI which is as under:
C C No.49/04 77/104
"It is wrong to suggest that Mr. Yadav Advocate had taken Ajesh Mittal and myself to Dy. SP Mr. R K Joshi of CBI."
134 However, complainant Ajesh Mittal in his cross examination on behalf of accused has deposed that Sh. S C Malik advocate had taken him to Dy. SP R K Joshi. Relevant portion of his cross examination is as under:
" It is correct that Sh. S C Malik, the then Advocate had taken me to Dy. S P R K Joshi as I had informed Mr. Malik with regard to the demand of illegal gratification made by Sh. Gulab Tulsiyani."
135 Independent witnesses M R Aggarwal and S T Mukkawar were the employees of Oriental Bank of Commerce. PW3 M R Aggarwal was the then working as Dy. Chief Manager in OBC as disclosed by him in his examination in chief which is as follows:
"I was working as Dy. Chief Manager in Oriental Bank of Commerce , Connaught Place since 1985."
136 PW5 S T Mukkawar was the then working as Law officer in head office of Oriental Bank of Commerce, as disclosed by him in his examination in chief which is as follows: C C No.49/04 78/104
"In June, 1986 I was working as Law Officer, at Oriental Bank of Commerce , Head Office, New Delhi"
137 They were directed by their senior officers to join the investigation of CBI in this case, hence they cannot be termed as witness of the choice of CBI. They were neither knowing the complainant nor the accused prior to this case. They have no affinity with the complainant and no enmity with the accused. Both these witnesses have been cross examined on behalf of accused at length even not a single suggestion has been given to both these witnesses that they were having any sort of enmity with accused or any ill will against him. In these circumstances, no motive can be imputed to them to depose falsely against accused. 138 According to accused he has been falsely implicated in this case by CBI at the instance of S C Malik advocate. CBI is the Prime Investigating Agency of this country. Accused in his statement U/s 313 Cr PC has not disclosed as to what grudge Mr. S C Malik was having against him and why he will get him falsely implicated.
139 Sh. RK Joshi, in his cross examination, on behalf of accused, has deposed, in this regard, as follows: C C No.49/04 79/104
"I do not remember if any Advocate namely Sh S C Malik had accompanied the complainant and introduced him to me. At this point of time I do not remember that who was the complainant in the case of Sh D N Kadiyan and whether the complainant of the said case accompanied Sh S C Malik or not . I do not remember the proceedings completed by me in the case of Sh D N Kadiyan . I do not remember if any bed sheet was recovered in the case of Sh D N Kadiyan or any wash thereof was taken. It is incorrect that no demand was there as per the conversation recorded by the complainant in this case. It is incorrect that accused had never accepted any money from complainant. It is incorrect that no recovery was affected from the accused . It is incorrect to suggest that I had foisted a false case upon the accused at the behest of Sh S C Malik Adocate."
140 From the above quoted cross examination of TLO R K Joshi, it is clear that he has denied his acquaintance with Sh. S C Malik Advocate.
141 Accused has not explained as to what influence Mr. S C Malik was having on CBI. Accused has not produced any evidence to show as to how Mr. SC Malik, advocate was in a position to influence CBI to falsely implicate him in this case. Ajesh Mittal complainant in this case was a person running a small factory who was challaned by a Factory Inspector of MCD and facing difficulty even getting that challan disposed of from court. In C C No.49/04 80/104 such circumstances how can he be in the position to influence the CBI. In any manner he is not such a personality so as to influence a prime investigating agency like CBI. There is no reason to believe that CBI would falsely implicate the accused either at the instance of S C Malik, Advocate or complainant.
142 TLO Dy. SP R K Joshi was also the then a public servants unknown to accused and complainant, accused has not disclosed any reason why he will depose falsely against him. He was not alone in the trap team. There were many other CBI officers in the trap team who were also public servant. All the CBI officers were unknown to complainant as well as accused. There is no reason why the TLO and other trap team members who were also public servants will falsely implicate accused who is a Judicial Officer in this case. No enmity/ ill will has been alleged against the TLO even by accused, therefore he was having no motive to falsely implicate the accused in this case. In these circumstances the argument that accused was falsely implicated, at the instance of S C Malik does not appeal even to common sense. 143 It is argued by Ld.Defence Counsel that PW1 Durga C C No.49/04 81/104 Parsad has deposed in his cross examination that IO had threatened him that he would implicate him (PW1) in case he (PW1) would not depose as per the version given by him (IO).
144 Durga Prasad has given the alleged version at the time of recording of his statement U/s161 Cr PC during the investigation of this case. Durga Prasad has appeared as PW1 in this court. He has partly supported the case of prosecution and declared hostile on the request of Ld. Sr. PP for CBI, thus it is clear that inspite of the alleged threat given by the IO it has no effect on the mind of PW1 Durga Prasad that is why he has not supported the case of prosecution in toto, thus there is no merit in this argument that this witness was under the threat of prosecution. 145 Ld. Defence Counsel argued that as per statement of PW5 S T Mukkawar he was directed to act as a shadow witness and to remain along the complainant as near as possible to witness the transaction of complainant but he was sitting in the complainant's car which was parked at some distance from the house of accused. According to the case of prosecution as well as according to TLO Shrimoni Kumar was directed to act as a shadow witness and to remain close with the complainant as far as possible. It is correct that TLO in his examination in chief has stated that PW5 S T C C No.49/04 82/104 Mukkawar was directed to act as a shadow witness but he remained sitting in the car outside the house of accused while Shiromani Kumar had accompanied the complainant in the house of accused. From the above discussion it is clear that there is no infirmity in the deposition of Shiromani Kumar made in this court on oath. In these circumstances no adverse inference can be drawn against the prosecution on this count.
146 It is argued by Ld. Defence Counsel that Pws3, 5, 6 and 8 are telling lies with regard to the amount allowed to be kept by the TLO at the time of leaving the CBI office for the spot. In this regard Ld. Defence Counsel has referred the personal search memo, after the trap. According to TLO a sum of Rs.84/ was found on the person of Shiromani Kumar and Rs.50/ were found with the complainant. It has come in the evidence that during the way from the CBI office to the house of accused trap party had stopped at a petrol pump. Complainant had taken petrol. They had also taken tea/snacks. In these circumstances they must have spent some amount which may not be correctly accounted for. In any case it is not such a contradiction which is affecting the merit of the case i.e. with regard to demand, acceptance and recovery of tainted money from the accused.
C C No.49/04 83/104 147 According to accused he had not gone in his chamber after finishing his court work on 6.6.86. PW1 Sh. Durga Prasad, who was the then working as Reader cum Ahlmad in the Court of accused Gulab Tulsiyani has specifically deposed that accused after finishing his work on 6.6.86 had gone to his chamber. Relevant portion of his statement in this regard is as under:
"Thereafter Ld. PO had given me 56 more files to write the order sheets. After giving me above said direction Ld. PO had left the court and went to his retiring room. ".........
....... " On 6.6.86 Presiding Officer had left his retiring room after giving me direction to record order on his behalf on the order sheet dt. 6.6.86, for Children Court. Mr. Tulsiani had not signed the ordersheet on 6.6.86 as he had left. "
148 This witness has been cross examined on behalf of accused at length but not even a suggestion has been given to this witness that on 6.6.86 accused had not gone to his chamber. In these circumstances there is no reason to disbelieve this version of PW1 that accused Gulab Tulsiyani had gone to his chamber on 6.6.86 after finishing his court work. No cross examination on a substantive point amounts to admission of the same. 149 It is argued by Ld. Defence Counsel that complainant Ajesh Mittal is a bad character who is involved in criminal cases. C C No.49/04 84/104 In this regard, Ld. Defence Counsel has pointed out 23 criminal cases which are of the year 1987 or thereafter. This case was registered on 6.6.86. Ld. Defence Counsel could not pointed out that in the year 1986 accused was facing any criminal case or convicted in any criminal case. Thus, it is clear that till the date of this trap complainant was not involved in any criminal activity. Even otherwise, statement of a witness cannot be disbelieved merely because he is involved in any criminal case until and unless his evidence is having some material or substantive infirmity, hence no adverse inference can be drawn against the complainant. 150 Ld. Defence Counsel argued that only Rs,.650/ were recovered in the personal search/house search of accused. Nothing was found in his locker inspite of the fact that he was working as Magistrate for last 15 years which certifies his innocence. No adverse inference can be drawn against the prosecution only on this count when there is substantive evidence on the judicial file that he had demanded illegal gratification and was caught red handed while accepting illegal gratification which was also recovered from his conscious possession. It is correct that according to prosecution nothing was found in his locker. If accused was having nothing to keep in the locker why he was maintaining the locker? It in itself C C No.49/04 85/104 raises doubt.
151 Ld. Defence Counsel argued that there are many additions, alterations, cuttings and overwriting in recovery memo Ex. PW3/B. I have carefully gone through the recovery memo Ex PW3/B. It is correct that there are cutting, overwriting and some additions in it. Every cutting, overwriting and additions itself does not mean alteration or manipulation in such documents. A copy of Ex PW3/B was given to accused on the spot which he has received vide his endorsement at point N under his signature made by him in his own handwriting. Accused could have produced the copy of this document given to him for comparing with Ex PW3/B to prove any such manipulation in this document but for the reasons best known to him, he has not produced the copy of this document given to him on the spot. Any subsequent addition, alteration made in this document can be verified after comparing it with the copy given to him on the spot. Witnesses as well as TLO have stated that they have signed these additions on the spot itself. They have denied tampering of document. Relevant portion of PW5 S T Mukkawar in this regard, is as under:
"I do not recollect as to when I had put my initial at point X on Ex PW3/A. It is incorrect to suggest that I was not present in the house of accused . It is also incorrect to suggest that I had signed the documents under instructions C C No.49/04 86/104 of Mr R K Joshi. It is also incorrect to suggest that I had deposed falsely under the threat of departmental action."
152 Relevant portion of PW3 M R Aggarwal in this regard, is as under:
"The recovery memo was prepared at the spot but I cannot say whether any addition or alteration were made on it. It is correct that portion X to X an an addition but it was made at that time only. It is correct that there is less gap in writing in portion Y to Y, X to X and A to A in Ex.PW3/D."
153 This witness has further deposed in his cross examination as follows:
"It is also incorrect to suggest that no recovery memo was prepared in my presence. It is also incorrect to suggest that my signatures were obtained on the memo later on.
154 Relevant portion of PW6 Shiromani Kumar in this regard, is as under:
"It is correct that portion mark X to X was added later on and I had signed the same again at the same time. It is incorrect to suggest that portion X to X was added later on in Ex PW3/B."
155 In view of above discussion there is no merit in the argument that recovery memo ExPW3/B was tampered with. C C No.49/04 87/104 156 It is argued that investigation in this case is not conducted properly hence the same is bad. Defence cannot take advantage of bad investigation where there is evidence available on the record against the accused. In this regard Hon'ble Supreme Court in a latest judgment titled Zindar Ali Vs. State of West Bengal & Anr., 2009 III AD (S C ) 7 held as follows:
"Indian Penal Code, 1860 Secs. 376 and 417 - Immediate disclosure of rape by the prosecutrix - Version of prosecutrix unchallenged - Admission by the accused in village panchayat - Medical evidence also another proof - Accused behind bar for five years - SC held - Defence cannot take advantage of bad investigation where there is clinching evidence available to the Prosecution."
157 Hon'ble Supreme Court in Rohtash Vs. State of Rajasthan (2007) 2 SCC (Crl.) 382 has held that that defective investigation would not lead to total rejection of prosecution case. 158 Hon'ble Supreme Court in State of MP Vs Man Singh ( 2007) 2 SCC 390 in this regard has held as follows:
"Criminal Trial Investigation Deficiencies in investigation Effect Held, cannot be a ground to discard the prosecution version which is authentic, credible and cogent Criminal Procedure Code, C C No.49/04 88/104 1973 S.157."
159 In Karnail Singh Vs. State of MP 1995 SCC 977it has been held by Hon'ble Supreme Court that in case of defective investigation it would not be proper to acquit the accused if the case is otherwise established conclusively because in that event it would tantamount to be falling in the hands of an erring Investigating Officer.
160 Considering the case from all the angles there is no merit in these argument of Ld. Defence counsel. 161 Ld. Defence Counsel argued that where two views are possible view favorable to accused is to be taken. Hon'ble Supreme Court in a latest authority Dr. Subramanium Swami Vs. Dr. Manmohan Singh, JT 2012 a(2) SC 203, in this regard, in para no. 45 has held as follows:
"Today, corruption in our court not only posses a grave danger to the concept of constitutional governance, it also threatens the very foundation of Indian Democracy and the Rule of Law. The Magnitude of corruption in our public life is incompatible with the concept of socialist, secular democratic republic. It cannot be disputed that where corruption begins all rights end. Corruption devalues human rights, chokes developments and undermines justice, liberty, equality, fraternity which are the core values in our C C No.49/04 89/104 preambular vision. Therefore, the duty of the court is that any anti corruption law has to be interpreted and worked out in such a fasion as to strengthen the fight against corruption. That is to say in a situation where two constructions are eminently reasonable the Court has to accept the one that seeks to eradicate corruption to one which seeks to perpetuate it.
162 I have gone through the authorities relied upon by Ld. Defence Counsel in support of his arguments. P K Gupta Vs. CBI 2011 (4) JCC 2352, Suresh Kr. Srivastava Vs. State of MP 1994 Crl. L J 3738, A Subbair Vs. State of Kerala V 2009 SLT 272, it is held that mere recovery of tainted money from accused is not sufficient to hold him guilty for the offence punishable U/s 161 IPC and Section 5(2) r/w 5 (1) (d) of P C Act, 1947.
163 In Sita Ram Vs. State of Rajasthan 1975, CR.LJ 1244 it is held by Hon'ble Supreme Court that:
"That when demand of bribe by accused from the complainant not proved and prosecution failed to establish its version beyond reasonable doubts presumption U/s 4 (1) cannot be drawn for convicting the accused."
164 In G V Nanjundiah Vs. State (Delhi Administration) AIR 1987 Supreme Court 2402, it has been held that factum of C C No.49/04 90/104 acceptance of bribe was not properly established because testimony of complainant was not found trustworthy, hence accused was acquitted.
165 There is no dispute with the preposition of law laid down in these authorities however every case has its own facts and circumstances. Ratio of law laid down in a case according to the peculiar facts and circumstances of that particular case. It is to be applied in the similar facts and circumstances only. As discussed above facts and circumstances of the present case are entirely different from the facts and circumstances of these authorities. In the present case initial demand of illegal gratification made by accused and thereafter demand of illegal gratification made on the spot at the time of trap is well proved. Voluntary acceptance of tainted money by accused at the time of trap is also proved. Recovery of tainted money from the conscious possession of accused is also proved as discussed above, thus the ratio of law laid down in these authorities is not applicable to the facts and circumstances of the present case.
166 In MCD Vs. Ganga Ram DLT Vol. II, P6, 1967 it has been held that for seizing sample witness of same locality is necessary.
C C No.49/04 91/104 167 In Kharaiti Lal Vs. The state DLT Vol. I, page 362 , 1965 it has been held that in order to avoid criticism police while arranging a raid should always made an earnest effort to associate with them outsiders having some statue in life. 168 In this authority Hon'ble High Court has directed the trial court for looking some corroborative evidence of independent character before relying on the statements of the members of the raid party. In this case court has already visualised the evidence of independent character like complaint submitted by complainant Ajesh Mittal, transcription of tape recorded conversation, handing over memo and recovery memo alongwith CFSL report which are supported by the witnesses in their oral testimony . In such way direction of High Court is a rather ethical which every court normally adhered to meticulously while analysing the evidence. 169 Present case is a trap case. In a trap case maintaining of secrecy is the basic element. As per normal practice witnesses are arranged to associate with the investigation where the information of crime is received afresh. In this case when complainant submitted his complaint to CBI, for the purpose of verification and laying a trap there was immediate and urgent need of witnesses which was arranged through their controlling officers C C No.49/04 92/104 even for associating with the preparation of Handing Over Memo and prior to it emerging with recording conversation. In these circumstances associating of witnesses from the locality of accused was not practically feasible. In the case in hand investigating agency had taken the services of two senior bank officers who were not even choice of the CBI but deputed by their controlling officers, thus no doubt can be raised on their integrity and credibility, hence not calling of witnesses from locality is not fatal to the case of prosecution.
170 In Panalal Damodar Rathi Vs. State of Maharashtra AIR 1979 Supreme Court1191, it has been held that complainant is no better position than accomplice after introduction of S. 165 A. It is argued that in these circumstances no reliance can be placed on the evidence of complainant.
171 According to Section 8 of PC Act, 1947 a statement made by a person in any proceeding against a public servant that he offered or agreed to offer any gratification, (other than legal remuneration ) or any valuable thing to the public servant, shall not subject such person to a prosecution, hence he cannot be treated at par with accomplice.
C C No.49/04 93/104 172 Hon'ble High Court of Delhi in State Vs. P K Jain 2007 Crl. L J 4137 with regard to evidence of complainant has held as follows:
"Prevention of Corruption Act (49 of 1988), S. 5 (2) Bribe - Demand and acceptance - Evidence of complainant and his son - Rejected by Special Judge on ground that their status was that of accomplice and they are interested witness - erroneous.
An accomplice is a person who has concurred in the commission of an offence., meaning thereby a partner in the crime and associate in the crime. When the witness sustains such a relation to the criminal act that he could be jointly inducted with the accused, he is an accomplice. The observations of Special Judge brandishing the Complainant in a trap case as accomplice amounts to discrediting the criminal justice system itself and portrays that the criminal justice system cannot respect the witnesses. Similarly, the observation of the trial court that complainant and his son are interested witnesses and not trustworthy, is unfortunate. In a case of a legitimate trap, the person and police officials taking part in trap, in no sense can be said to be accomplice or uncreditworthy witnesses so that their evidence would require under law to be corroborated by independent witness. The rule of corroboration is not a rule of law. It is only a rule of prudence and the sole purpose of this rule is to see that innocent persons are not unnecessarily made victim. The rule cannot be C C No.49/04 94/104 allowed to be a shield for corrupt. Moreover, the corroboration need not be by direct oral evidence and can be gathered from circumstantial evidence. The sole evidence of complainant is sufficient to convict a person, if it is reliable, acceptable and trustworthy. The witness who reported the demand of bribe so as to trap the culprits cannot be considered as an accomplice or non trustworthy or interested witness. The necessity for court to search for independent witness in case of charges for corruption cannot be insisted upon. Such crimes are committed in secrecy and normally bribe are not taken openly. The absence of independent witnesses to support the version of the Complainant cannot be a ground to acquit the accused."
173 Hon'ble Supreme Court in Som Prakash Vs.State of Delhi AIR 1974 SC 989 with regard to credibility of a trap witness and necessity of its corroboration has held as follows:
"Evidence Act (1 of 1872), s. 133 - bribery case - trap witness - Credibility - Corroboration - Necessity of Brief Note: (b) The demanding decree of proof traditionally required in a criminal case and the devaluation suffered by a witness who is naturally involved in the fruits of his investigative efforts, suggest the legitimate search for corroboration from an independent or unfaltering source - human or circumstantial - to make judicial certitude doubly sure. Not that this approach casts any prerogative reflection on the police officer's integrity, but that the hazard of holding a man guilty on interested, even if honest, evidence may impair confidence in the system of justice. Today, C C No.49/04 95/104 trust begets trust and the higher officers of the Indian Police, especially in the Special Police Establishment, deserve better credence.
In the instant case oral evidence of the bribe giver coupled with that of other trap witness a gazetted officer in another department itself proved the passing of money to the accused and its production by him when challenged by the police official. No mortal attack on the integrity or probability of the testimony of trap witnesses - none that will warrant the subversion of the conclusion reached by the courts below - has been successfully made."
174 In State of UP Vs. Zakullah AIR 1998 Supreme Court 1474 it has been held that:
"Prevention of Corruption Act (21 of 1947), S.5 (2) Bribery - Proof - Delinquent official caught red handed in trap laid by trap officer - Complainant's evidence corroborated by evidence of trap officer - Complainant's evidence cannot be rejected merely because he was aggrieved against the bribe taker - Fact that trap officer successfully trapped delinquent is no ground to conclude his animosity against the delinquent - Order of High Court acquitting delinquent on patently wrong and tenuous considerations not proper - set aside."
175 It is argued that it is a criminal case. In a criminal case burden of proof is very heavy on the prosecution for the conviction of accused. Prosecution has to prove its case beyond C C No.49/04 96/104 reasonable doubts. There is no dispute with this preposition of law 176 Proof of the fact depends upon the degree of probability of its having existed. the standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Proof does not mean proof to rigid mathematical demonstration, because that is impossible, it must mean such evidence as would induce a reasonable man to come to a particular conclusion. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court may have regard to common course of natural events, human conduct, public or private business visavis the facts of the particular case.
177 Hon'ble Supreme Court in Inder Singh Vs State ( Delhi Administration) AIR 1978 Supreme Court 1091 has held as follows:
"Credibility of testimony, oral circumstantial depends considerably on a judicial C C No.49/04 97/104 evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect, If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of foolproof concoction. Why fake up? Because the Court asks for manufacture to make truth look true? No, we must be realistic."
178 Hon'ble Supreme Court in Krishna Mochi & Ors vs State of Bihar (2002) 6 Supreme Court Cases 81 has held as follows:
"It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to deposed against an accused because of threats to their life, more so when the offenders are habitual criminals C C No.49/04 98/104 or high ups in the Government or to close to powers, which may be political, economic or other powers including muscle power. Thus, in a criminal trial a Prosecutor is faced with so many odds. The court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in an ivory tower. I find that in recent time the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the court so long it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, the court should tread upon it, but if the same are boulders, the court should not make an attempt to jump over the same. These days when when crime is looming large and humanity is suffering and the society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim " Let hundred guilty persons be acquitted, but not a single innocent be convicted " is, in practice, changing the world over and Courts have been compelled to accept that " society suffers by wrong convictions and is equally suffers by wrong acquittals". I find that this Court in recent times has conscientiously taken notice of these facts from time to time."
179 Hon'ble Supreme Court in State of U.P Vs Anil Singh has observed as follows:
"It is also our experience that invariably the C C No.49/04 99/104 witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also preside to see that a guilty man does not escape. One is as important as the other. But are public duties which the judge has to perform.
180 In the case of State of W.B. Vs Orilal Jaswal it was held that justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice, according to law . In the case of Mohan Singh Vs State of M.P it was held that Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remain, the criminals are clothed with the protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicious are created. It is the onerous duty of the Court, within permissible limit to find out the truth . It means, on one hand no innocent man should be punished but on the other C C No.49/04 100/104 hand to see no person committing an offence should be get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. 181 Prevention of Corruption Act is a social legislation enacted with the object to curb illegal activities of public servants, in these circumstances according to the law of interpretation of Statute, its provision should be interpreted so as to achieve its object. Our Hon'ble Supreme Court in Ram Singh Vs. State of MP (2000) 5 Supreme Court Cases88 has held as follows:
"Prevention of Corruption Act, 1988 - Nature and interpretation of Held is a social legislation to curb illegal activities of public servant and should be liberally construed so as to advance its object and not liberally in favour of the accused - interpretation of Statutes Particular statutes or provisions - Penal statute - Social Legislation - Interpretation of".
182 The post of judicial officer is a very sensitive post, where decent behaviour, honest approach towards practical dealings is expected irrespective of the fact whether he is functioning in a court or attending his daily routine at home. Society has deep rooted faith in fair dealings with regard to working of a judicial C C No.49/04 101/104 officer, justice in wide sense is considered as pious act free from unblemished stigma and no person can be expected to be overt act feeling superior to normal human being. In the case in hand entertaining the complainant who was accused in a challan case pending in the court of accused, at his home, as such his act of entertaining with complainant raises a big question against the decorum of judicial officer rather all these circumstances taken together supports the prosecution version. 183 Hon'ble Supreme Court in State of Punjab Vs. Pohla Singh, 2003 (3) CCC 75 has held as follows:
"Appreciation of evidence - The prosecution is not supposed to meet every hypothetical question raised by the defence If crime is to be punished in a glosseme way niceties must yield to realistic appraisal."
184 In case U/S 13 (1) (d) of P C Act 1988 prosecution has to prove that :
i) That accused should be a public servant.
ii) That he should used some corrupt or illegal means or otherwise abused his position as a public servant, C C No.49/04 102/104
iii) That the accused should have thereby obtained a valuable thing or pecuniary advantage.
iv) Such benefit for himself or for any other person.
185 In State represented by Inspector of Police, Pudukottal, T.N. v. A Parthiban [(2006) 11 SCC 473] Hon'ble Supreme Court has held that every acceptance of illegal gratification, whether preceded by a demand or not, would be covered by Section 7 of the Act. But, if the acceptance of an illegal gratification is in pursuance of a demand by the public servant then it would also fall under Section 13(1)(d) of the P.C. Act."
186 In view of above discussion it is well proved from the evidence produced by the prosecution that accused Gulab Tulsiyani who was then working as Metropolitan Magistrate at Patiala House Court, as a public servant, had demanded illegal gratification for disposal of factory challan case No.1244/CH/86 and obtained Rs. 2,000/ from complainant Ajesh Mittal by corrupt or illegal means which was recovered from his conscious possession, thus accused has abused his official position. In these circumstances this court is of opinion that prosecution has proved its case beyond reasonable C C No.49/04 103/104 doubts against accused, hence I hold accused Gulab Tulsiyani guilty for the offences punishable U/s 161 IPC and U/s 5 (2) r/w 5 (1 (d) of P C Act, 1947.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI) TODAY On 25.4.2012 SPECIAL JUDGE; DELHI C C No.49/04 104/104 IN THE COURT OF V .K .MAHESHWARI SPECIAL JUDGE: (P C Act)03 CBI) DELHI Corruption Case No.49/2004 CBI Vs. Gulab Tulsyani, M M Patiala House, New Delhi, r/o C75 Double Storey , Ramesh Nagar, N Delhi. R.C No. 40(A)/86/CBI/ACB/N.D ORDER ON SENTENCE:
Vide my separate judgment dated 25.4.2012 accused was convicted for the offence punishable U/s 161 IPC and U/s 5 (2) r/w 5 (1 (d) of P C Act, 1947.
Arguments on sentence heard. It is argued on behalf of convict that he is 74 years of age . He is not a previous convict. He has undergone surgery 45 times for brain hemorrhage and still going medical treatment. He has faced the prolonged trial since 1986. He has lost his son in an accident in the year 1990. His wife is also a heart patient and has undergone byepass surgery, there is no one to look after her except the deponent. It is argued that in these C C No.49/04 105/104 circumstances, lenient view may be taken against him. He has placed reliance the following authorities :
Rajesh Kumar Vs State 2004(1) JCC 322 D Srinivasan Vs Delhi Special Police Est etc 1993 Cri. L J
54.
Barindra Ram Khaund Vs CBI 2008 Crl L J (NOC) 536(GAU.) It is argued on behalf of CBI by Ld Senior PP Sh Brajesh Shukla that convict is involved in a serious corruption case who was then working as Metropolitan Magistrate at Patiala House Court, as a public servant, had demanded illegal gratification for disposal of factory challan case No.1244/CH/86 and obtained Rs. 2,000/ from complainant Ajesh Mittal by corrupt or illegal means which was recovered from his conscious possession, thus accused has abused his official position. Keeping in view deterrent theory of punishment he should be awarded severe punishment and heavy fine may also be imposed on him, so that society may take lession. It is further submitted by Ld Senior PP that in criminal appeal No. 299 of 1997, titled State of Rajasthan Vs Dhool Singh, Hon'ble Supreme Court, on December 18th , 2003 has held that the Courts should bear in mind that there is a requirement in law C C No.49/04 106/104 that every conviction should be followed by an appropriate sentence within the period stipulated in law. Discretion in this regard is not absolute or whimsical. It is controlled by law and to some extent by judicial discretion applicable to the facts of the case. Therefore, there is need for the Courts to apply its mind, while imposing sentence , as to why it should be less then maximum sentence prescribed under law. Convict be awarded consecutive sentence.
This court has carefully considered all the arguments addressed on behalf of both the parties and have gone through the record. In this case, convict Gulab Tulsiyani who was working as Metropolitan Magistrate at Patiala House Court, as a public servant, had demanded illegal gratification for disposal of factory challan case and obtained Rs. 2,000/ from complainant by corrupt or illegal means which was recovered from his conscious possession, thus has abused his official position.
I have also gone through the authorities relied upon by Ld Defence counsel in support of his argument.
In Rajesh Kumar Vs State, 2004 (1) JCC 322 , the High Court of Delhi has observed as follows:
" Prevention of Food Adulteration Act, 1954 Sec.C C No.49/04 107/104
16(1) (1A) r/w Sec. 7 - Conviction under - Question of sentence Although minimum sentence is prescribed under the Act - A sentence below the minimum prescribed can also be passed in the facts and circumstances of a case Petitioner has already suffered the rigors of trial for nearly 13 years and has already undergone imprisonment for nearly two months - Not a previous convict -
Sentence of imprisonment of the petitioner reduced to the period already undergone."
In D Srinivasan Vs Delhi Special Police Est etc 1993 Cri. L J 54, Hon'ble Supreme Court has observed as follows:
" Prevention of Corruption Act ( 1947), S. 5(2) -
Sentence - Occurrence took place nearly 23 years before One of the accused died Accused also lost their jobs Having large family dependent upon him Accused were in jail for sometime
- Sentence already reduced to undergone."
In Barindra Ram Khaund Vs CBI 2008 Crl L J (NOC) 53 6(GAU.) ,it has been observed as follows:
" Prevention of Corruption Act (49 of 1988) . S. 13(2)
- Criminal misconduct by a public servant Sentence Petitioner C C No.49/04 108/104 alleged to have misappropriated amount advanced to him to meet office expenses Considering fact of dismissal of petitioner from service and his age High Court reduced sentence from one year to six month though not provided in the Act and amount of fine and default provision directed to remain unchanged."
Judicial office is an office of public trust therefore high integrity, honesty, ethical firmness is the requirement of society from the Judge. A Judge's conduct is expected to be judged by higher standard then the standard expected from any other public servant. The confidence in judiciary is getting shattered day by day. Today judiciary is suffering from self inflicted wounds . Judiciary must take utmost care to see that the temple of justice does not crack from inside which will lead to a catastrophe in the justice delivery system resulting in the failure of the public confidence in the system. To keep the stream of justice clean and pure the judge must be endowed with sterling character, unimpeachable integrity and upright behavior. Wood packers inside pose a larger threat then the storm outside .
Considering the fact that convict is 74 years of age, has already undergone surgery 45 times for brain hemorrhage, facing trial since 1986, his son has expired, his wife has also undergone C C No.49/04 109/104 byepass surgery and there is none in the family to look after her except her husband, and the authorities relied upon by Ld Defence counsel in support of his arguments, convict is sentenced to undergo three years RI along with a fine of Rs.25,000/ (Rs. Twenty Five Thousand) I D three months S I U/S 161 and to undergo three years RI along with a fine of Rs.25,000/ (Rs. Twenty Five thousand) I D three months S I U/S 5 (2) R/w Section 5(1)
(d) of P C Act 1947. Both the sentences will run concurrently. Benefit of Section 428 Cr P C be also given to accused.
A copy of judgment and this order on sentence be given to convict free of cost. File be consigned to RR.
ANNOUNCED IN OPEN COURT (V K MAHESHWARI)
TODAY ON 28st April. 2012 SPECIAL JUDGE: DELHI
C C No.49/04 110/104