Delhi District Court
Central Bureau Of vs . P.S.Rai on 20 October, 2015
1
IN THE COURT OF BHUPESH KUMAR
SPL. JUDGE, (PC ACT) CBI01, (SOUTH)
SAKET COURTS : NEW DELHI
CC No. 19/13
Unique Case ID No. 02401R1431562008
Central Bureau of Vs. P.S.Rai
Investigation Sh. Som Nath Rai
R/o. A2/175 A, Keshav
Puram DDA MIG Flats,
Rohini, Delhi, and
permanent address
Vill & Post Office
Baraon Via Sikarigaj, Distt.
Gorakhpur. U.P.
RC No. : RCDAI2008A0037 CBI/ACB/New Delhi
u/S. : 7, 13(2) r/w Section 13(1)(d) of POC Act, 1988
Date of Committal : 22.12.2008
Arguments Heard on : 06.10.2015
Date of Decision :20.10.2015
RC No.37(A)/08 (Bhupesh Kumar)
CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South),
New Delhi/20.10.2015
2
Appearances:
Sh. Naveen Giri, Ld. PP for CBI.
Sh. S.P.Kaushal, ld. Counsel for accused
JUDGMENT
Complaint and its verification 1.0 On 19.09.2008 complainant Dharamvir made written complaint to the CBI on the ground that he runs company under the name and style of M/s Dharamvir and Company, registered as Class III company with the DDA. For the development of 157.83 hector of land in Sector 29 and 30 (Part) Rohini, Phase IV and V, SH C/O 9 mtrs and 12 mtrs. R/W Internal Road (Ist Phase) in Sector 30 (Part), Ps-IV & V, Rohini, the work order was awarded to M/s Sehrawat Construction Company vide work award letter no. F-2(8)-2006-07/EE/RPD-2/DDA/A/830 dated 13.07.2007 issued by Engineer, V.K.Sharma, Executive Engineer, RPD-II/DDA for the amount of Rs.1,05,32,018/-. Sh.Suraj Bhan Sehrawat, Proprietor of M/s Sehrawat Construction Company had executed Special Power of RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 3 Attorney in favour of complainant to look after the aforesaid work awarded to M/s Sehrawat Construction Company. On 07.05.2008 the complainant had received a payment of Rs.41,34,918/- as part payment of the said work. Thereafter, the complainant further carried out the work at the site and for this work Sh.M.C.Bahl and Sh.Bangia both junior Engineers prepared a bill of Rs.16.0 lac and submitted the same to their superior officer Sh.P.S.Rai, Assistant Engineer, Sub- Divison IV, RPD-II, Rohini for clearance but Sh.P.S.Rai on 15.9.2008 had demanded a bribe of Rs.3 lac to clear the said bill.
For verification, the complaint was marked to IO/Sub Inspector Manish Upadhyay and in order to verify the allegations, he had decided to visit the office of suspect officer Sh.P.S.Rai, Asst. Engineer at Rohini. For this purpose he had arranged Digital Voice Recorder (DVR) and an introductory voice of independent witness was recorded in it. Thereafter, IO alongwith complainant and independent witness Sh.Maheshwar Kumar, Assistant, Bureau of Indian Standards, Manak Bhawan went to office of the suspect at about 3.00 pm where he was handed over the DVR to the complainant and he was briefed how to operate it in order to record the conversation between him and suspect officer. Accordingly, the complainant went to the office of accused and recorded the conversation between him and suspect and thereafter when RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 4 complainant came back at about 4.30 pm, the DVR was taken back. The complainant also explained the IO that he had met Sh.P.S.Rai and after discussion he agreed to accept the payment of bribe of Rs.1.60 lac on 20.09.2008. The recorded conversation was heard in the presence of independent witness which also confirms the demand of bribe of Rs.1.60 lac by Sh.P.S.Rai. Then they came back to the office of CBI at 7.00 p.m. where the conversation was transferred to new audio cassette after confirming that the audio cassette do not contain any other pre-recorded voice. The audio cassette was mark as P-1 and the signatures of independent witness was obtained on the paper slip pasted on the audio cassette. Thereafter, audio cassette was wrapped with piece of cloth and was sealed with seal of CBI. The specimen seal impression with help of 'Lac' and ink was taken on separate sheet of paper and the same was handed over to the independent witness. The recorded conversation was transferred to the second audio cassette for the purpose of investigation. A rough transcription of the recorded conversation was also prepared. The independent witness was directed to come to office of 20.09.2008 at 9.00am and the complainant was also directed to bring Rs.1.60 lac to be used as track money.
On the basis of these proceedings SI Manish Upadhyay has recommended for the registration case u/s 7 of P C Act, 1988 RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 5 against SO Sh.P.S.Rai.
1.1 Registration of FIR On the basis of the recommendations of SI Manish Upadhyay FIR u/s 7 of P.C. Act, 1988 bearing RC no. DA 1-2008- A-0037 was registered against Sh.P.S Rai, Assistant Engineer, Office of Chief Engineer, DDA, Sub-Division 4, RPD II, Rohini, Delhi. Investigation of the case was entrusted to Inspector Prem Nath CBI/ACP, New Delhi for investigation.
1.2 TRAP AND INVESTIGATION On 20.09.2008 trap team was constituted comprising of Inspector Sh.S.S.Bhular, Inspector Saneep Chaudhary, Inspector Hatinder Adhlaka, Inspector Sh.R.C.Sharma, SI Sh.Nikhil Malhotra, SI Sh.Manish Upadhyay, other subordinate staff, two independent witnesses namely Maheshwar Kumar and Sh.K.K.Sharma, Assistants, Bureau of Indian Standards and complainant Dharamvir.
The complainant Dharamvir produced a sum of Rs.1.60 lac comprising 200 GC notes of denomination of Rs.500/- each and 60 GC notes of denomination of Rs.1000/- each. A leather bag containing empty clean glass, bottles, tumblers, sodium carbonate RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 6 powder, sealing material, phenolphthalein powder was arranged from the malkhana. Sh.S.S.Bhullar treated the notes with phenolphthalein powder and demonstrate its reaction with sodium carbonate. Personal search of complainant was conducted and he was not allowed to keep any incriminating in his person except mobile number 9312268100. The tainted bribe amount of Rs.1.60 lac was kept in the left and right side pant pocket of the complainant by Sh.K.K.Sharma, independent witness. The complainant was directed not to touch the said tainted bribe amount and was briefed to hand over the same to accused Sh.P.S.Rai only on his specific demand or on his specific direction to some other person and not otherwise. The DVR was also handed over to the complainant with direction to switch it on after reaching the spot in order to record the conversation which may took place between him and the accused. All the members of trap team washed their hands with soap and water. Sh.Maheshwar Kumar was asked to act as shadow witness and to remain close to the complainant to overhear the conversation and to watch the transaction of bribe amount which may took place between complainant and the accused. Thereafter, all the members apart from complainant mutually searched each other to ensure that none of them was carrying any incriminating document / articles.
The pre-trap proceedings were completed in CBI office RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 7 and its memo was prepared which was signed by all the persons present there. Thereafter the entire trap party left for office of accused at Sub Division 4, RPD II, Rohini in vehicles at about 13.15 hours. After reaching Rohini, the vehicles were parked at safe place. As per directions, the complainant alongwith Maheshwar Kumar proceeded towards the office of accused and the IO, other officers of CBI and witness K.K.Sharma took suitable position out side of the office of the accused. After sometime the complainant and the shadow witnesses came out and informed the trap team that the accused was not available in his office. Thereafter as decided, they tried to contact the accused on his phone no. 9911372371 from the phone of the complainant but the accused did not attend the call. At about 1.45hours they received call from accused who told the complainant that he would reach his office within 15-20 minutes. After waiting for about one hour at 16.30 hours the accused again contacted the complainant on phone to inform him that he was on his way to his office and would reach within 5-10 minutes. The complainant and shadow witness was directed to switch on the DVR before entering the office of the accused. The complainant alongwith shadow witness went to the office of the accused. Thereafter the complainant entered the office of accused who was found sitting in his room. The complainant discussed the matter with the accused for clearing the RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 8 bill. The accused demanded and accepted the bribe of Rs.1.60 lac with his right hand. After counting the same with his both hands, he wrapped the amount in blue and white checkered cloth duster and kept the same in the lower right side drawer of his office table. Immediately thereafter the complainant gave a missed call on mobile phone of Inspector Prem Nath which was pre-planned signal of transaction of bribe money. After receiving the signal IO alongwith trap team members and Maheshwar Kumar and Sh.K.K.Sharma entered the office of accused P.S.Rai.
The tainted bribe amount was recovered from the drawer of the table. The digital voice recorder was also taken back from the complainant which was played and heard in the presence of witnesses. The recorded conversation was transferred into blank audio cassette (Q-2) with the help of compact cassette recorder and it was sealed with seal of CBI. The washes of right hand (RHW) left hand (LHW) and duster wash (DW) of accused PS Rai was taken which turned into pink colour.
The measurement book (MB) of the DDA bearing no. 012187 issued to PS Rai alongwith bunch of papers containing the questioned running bill of the work were seized vide production cum seizure memo dated 20.09.2008. The three sealed bottles containing of washes Mark as RHW, LHW and DW, audio cassettes containing spot RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 9 conversation between accused and complainant mark as Q-2 and the bribe amount of Rs.1.60lac was taken into possession. The detail of post trap proceedings were recorded in recovery memo prepared on computer at spot. The CBI seal with ink was taken on pages of recovery memo. All the concerned persons signed the recovery memo. Specimen voice of accused was also taken in the presence of all the independent witnesses and the specimen voice recording memo was prepared to this effect and audio cassette was mark as S-1.
All the three chemical washes were sent to CFSL and vide report bearing no. CFSL 2008/C-0756 dated 7.11.2008 the presence of phenolphthalein in the bottles was confirmed. The audio cassettes were also sent to CFSL which confirmed that the voice in questioned audio cassette and specimen audio cassette was same. It was also found from the MB book that the detail of second running bill of amount of Rs.16,02,985/-, prepared by JE Sh. N.K.Bahl and Sh.Harish Chand Bangia, was pending for signature of accused P.S.Rai.
On the basis of the investigation it was found that the accused P.S.Rai has demanded illegal gratification from the complainant for clearing the bill of Rs.16 lac and accepting the same on 20.09.2008. After concluding the investigation charge sheet u/s 7,13(2) r/w 13(1)(d) P.C. Act was filed against accused P S Rai.
RC No.37(A)/08 (Bhupesh Kumar)
CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South),
New Delhi/20.10.2015
10
Charge
2.0 Copies of the chargesheet was supplied to the accused and
charge under Section 7, 13(1)(d) punishable u/Section 13(2) PC Act, 1988 was framed against the accused by my Ld. Predecessor Court on 17.02.2010, to which accused pleaded not guilty and claimed trial.
Prosecution Evidence 3.0 In support of its case, the prosecution has examined sixteen witnesses.
3.1 PW-1 is Dharamvir, complainant and star witness in this matter and deposed on the similar lines of his complaint and brought the complaint on record as Ex.PW1/A. The witness has further testified the proceedings took place on the verification of his complaint Ex. PW1/A on 19.09.2009 and the proceedings took place on the day of trap on 20.02.2009. He has also brought on record the documents viz. Special power of attorney Ex. PW1/B, letter dated 09.08.07 Ex.PW1/C, verification memo Ex. PW1/D, handing over memo Ex. PW1/E, recovery memo Ex. PW1/F, description cum voice RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 11 identification memo Ex. PW1/G and FIR Ex. PW1/H. He was cross examined at length by ld. Counsel for accused. The evidence of this witness would be discussed at the time of appreciation of evidence.
3.2 PW-2 is Sh.Maheshwar Kumar, Assistant in Bureau of Indian Standard, Manak Bhawan, Bahadur Shah Zafar Marg, New Delhi. He is the witness who has joined the proceedings of enquiry of verification of complain on 19.09.2008. On 20.09.2008 he has also joined the trap team and acted as shadow witness.
He was also cross examined at length by ld. Counsel for accused and the evidence of this witness would also be discussed later on at the time of appreciation of evidence.
3.3 PW-3 is Shri Bishma Kumar Chugh, Director General of Works, CPWD, New Delhi. He has submitted that in this matter, he has accorded sanction to prosecute Shri P.S. Rai, Assistant Engineer, Sub Division-IV, RPD-II, Rohini, vide sanction order dated 15.12.2008 bears his signature at point A on all the three pages.
During cross examination, the witness has submitted that before accorded sanction, he had gone through the entire file of his department along with the documents submitted by CBI pertaining to RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 12 this case. The contract was awarded to one M/s. Sehrawat Construction Co. but he cannot say whether Dharamvir was one of the Director or owner of the company. The sanction was accorded on the basis of the facts and merits of the case, and the documents placed before him. He has applied to his mind to accord sanction to prosecute the accused. The witness has further submitted that the fact and circumstances as well as the merits of the case within the limited reference of granting prosecution sanction was so glaring that all these peripherals things had no relevance for any sanctioning authority. Hence, even though, he had glanced through entire file and documents. He does not recall the precise details. It was suggested to the witness that he has accorded sanction mechanically without application of mind under the influence of CBI.
3.4 PW-4 is Dr. N.M. Hashmi, Senior Scientific Officer, CFSL, New Delhi. He is the witness who has chemically examined the LHW, RHW, DW and proved the report in this aspect as Ex. PW-4/A. The witness further submitted that the said report bears his signatures at point A and B and stamp at point C. During cross examination, the witness has submitted that he has personally examined the contents of the bottles.
RC No.37(A)/08 (Bhupesh Kumar)
CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South),
New Delhi/20.10.2015
13
3.5 PW-5 is Shri Hans Raj. He is the witness who was
working as Chowkidar with Shri P.S. Rai. He deposed to the effect that on 20.09.2008, contractor Shri Dharamvir came to meet Shri P.S. Rai in his office. Dharamvir asked to him to bring tea. When he returned back with tea, again Dharamvir asked him to bring glass of water for Mr. P.S. Rai. When he brought glass of water, all of a sudden, there was rush of people in the room. He was made to stand inside the room but outside the cabin of accused. After about 2½ hours, he was told to fetch water and tea, etc. During this period, he did not know as to what all had transpired with the accused. The recovery memo Ex. PW-1/F was shown to the witness which the witness has identified at point C, on all the pages. The witness has further submitted that he did not know the actual identity of the persons who had obtained his signatures. At this stage, the witness was cross examined by Ld. PP for CBI on the ground that he was resiling from his earlier statement.
During cross examination by Ld. PP for CBI, the witness has submitted that he has not told the CBI in his statement that the accused was caught taking bribe (confronted with portion A to A, where it was so recorded).
During cross examination, he submitted that he was not aware as to what all happened inside the cabin of Mr. P.S. Rai.
RC No.37(A)/08 (Bhupesh Kumar)
CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South),
New Delhi/20.10.2015
14
3.6 PW-6 is Shri Krishan Kumar Sharma, an independent
witness from Bureau of Indian Standard. He has joined the CBI on the day of trap. In the examination-in-chief, he supported the version of prosecution and has further stated to the effect that the GC notes recovered from the drawer of the table, their numbers were tallied with the list i.e. Annexure A to Ex. PW-1/E. Further the witness has proved; the recovery memo Ex. PW-1/F; two site plans Ex. PW-2/A; three bottles i.e Mark DW as Ex. P-1, Mark RHW as Ex. P-2 and Mark LHW as Ex. P-3; the duster as Ex. P-4; the envelops containing three small off-white colour cloth pieces as Ex. P-267 to Ex. P-269 and specimen voice recording memo dated 20.09.2008 was also identified by the witness as Ex. PW-2/D. The witness has also identified his signatures on all the documents on different points.
The witness was cross examined by Ld. PP for CBI with permission of Court after declaring him as hostile.
During cross examination, the witness has identified the complaint dated 19.09.2008 as Ex. PW-1/A, the cassette Q-2 as Ex. P-273 and its inlay card as Ex. P-274, cloth wrapper as Ex. P-275.
During cross examination, the witness has submitted that he remained in the office of CBI from 9 am to 4.30 pm, thereafter, they are proceeded to the office of DDA at Rohini. His signatures RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 15 were not obtained on any paper or documents before leaving for DDA Office, Rohini on 20.09.2008. They travel in three or four vehicles for going to DDA Office, Rohini from CBI Office. He has further testified that so far he remember, the complainant was in his own vehicle. He did not remember if he traveled alone in his own vehicle or was accompanied by someone else. At Rohini, search of complainant was not conducted, however, the complainant was asked to go to the office of accused. The complainant went to the office room of the accused after about an hour and during this period, all of them remained in their vehicles. The complainant remained in the office room of accused for about 10 minutes and soon thereafter, they all rushed. Miss call was received by either Mr. Sharma or by Mr. Chaudhary. He has further submitted that he does not remember when and where and by whom, DVR was handed over to the complainant and the same was his answer about its being taken back. The moment, they entered in the office room of the accused, complainant and 2-3 other colleagues of the accused were already present in the said room. No typing / printing was done in his presence in the said room. His signatures were obtained only on one document i.e. the paper prepared while tallying the currency notes with the list and during this period he remained in that room. The witness has further submitted that he do not remember who had kept the currency notes in the RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 16 pockets of complainant. He has further submitted that so far he remembered, the notes were wrapped in some paper. He do not remember in which pocket of the complainant, the notes were kept. No body checked the currency notes with the complainant after reaching Rohini office. The papers in which the currency notes were wrapped were not seen by him in the office room of accused. The complainant might have visited the office room of accused prior to arrival of the accused twice or thrice.
3.7 PW-7 is Shri Om Prakash. He has submitted to the effect that he was posted as typist in the Accounts Branch, RPD-II, Rohini Office Complex, Madhuban Chowk, New Delhi. He worked for three years as SBC, Office of Assistant Engineer from 2007 to 2009. He worked under AE Shri G.K. Sharma and thereafter under Shri P.S. Rai. The body of the bill Ex. PW-2/E was prepared by him for signatures of AE Shri P.S. Rai and thereafter, he has handed over it to Shri M.K. Behl, JE. The witness further submitted that amount mentioned on the bill was Rs. 19,14,378/- but this amount was tentative, which could be amended by concerned AE.
During cross examination, the witness has submitted that MB Book, Mark PW-8/1 never remained with him. He has seen it before preparation of the bill. The running bills were submitted in RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 17 advance even before completion of works and Ex. PW-2/E was running bill. He do not know if the part rate was approved prior to the preparation of bill.
3.8 PW-8 is Shri Vishnu Kumar Sharma. He is the witness who remained posted as Executive Engineer in the Office of Chief Engineer, Rohini. He has stated the procedure adopt by DDA for floating tenders, awarding of work, supervising the work and passing of bills, etc. The witness has brought on record the agreement took place between DDA and M/s. Sherawat Construction Company dated 18.07.2007 as Ex. PW-9/B, the measurement book of the work as Ex. PW-9/C. During cross examination, the witness has submitted to the effect that he received complaints from the accused against the contractor. The main work was awarded to M/s. Sherawat Construction Company, however, right from the beginning, a person namely Dharamvir was representing himself as the contractor. The complaint was in regard to misbehavior by Mr. Dharamvir with officials of DDA, non-compliance of directions of the office as well as the terms of agreement and also with regard to the rectification of the defects. A letter in this regard was brought on record as Ex. PW-8/DA-1. The witness has also admitted the letters of different RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 18 dates written by him against the complainant from Ex. PW-8/DA-2 to Ex. PW-8/DA-18,. The witness further submitted that he did not come to know that on 20.09.2008, after he left his office at about 3.30 pm to 4 pm, whether his office room was opened or not. He was not issued any official laptop by the office. He never came to know that who was principal technical supervisor of the contractor and whenever, he visited the site, he did not find any such supervisor. It was stated to be correct that only contractor and not his Attorney could raise the bill.
3.9 PW-9 is Shri Naresh Kumar Behl, Junior Engineer, Rohini. He has submitted to the effect that at the relevant time, he along with another JE Shri H.C. Bangia was working under Shri P.S. Rai, AE (Civil), Sub Division-IV, RPD-II. The bill Ex. PW-2/E was prepared by him and Shri H.C Bangia on the instructions of Shri P.S. Rai one day prior to the raid by CBI Officers. The bill was amounting to Rs. 16,02,985/-. The body of the bill was prepared by HDC Om Prakash and he handed over the MB Book to Om Prakash for calculation and preparation of body. The bill Ex. PW-2/E is the same bill which was put before the then AE Shri P.S. Rai for his signatures. He further submitted that the CBI conducted raid in the office of Shri P.S. Rai on 20.09.2008 and seized the documents / bills pending RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 19 before Shri P.S. Rai for his signatures. At the time of raid, he was not there. In respect to the recovery memo Ex. PW-1/F, the witness stated to the effect that it was not prepared in his presence, however, he has signed the same under protest when he was asked to sign the same. The production-cum-seizure memo dated 20.09.2008 was brought on record by this witness as Ex. PW-9/A. During cross examination, the witness submitted that in the official language 'Milestone' means to complete the work within given time. The proceedings regarding running bills have to be completed within time for achieving the Milestone. He did not know if the contractor has not achieved the Milestone and has not sought extension of time. The witness has further submitted that generally in such cases the running bill cannot be submitted. The witness stated it to be correct that third Milestone was to achieve by 19.06.2008 and fourth by 10.08.2008. In this case, the Contractor had not achieved third Milestone. It is further submitted to be correct that no bill of a Contractor can be forwarded in the absence of stack register of material, measurement book (MB), Test Check Statements (50% test check for AE and 10% check for EE), approval for the delay i.e. Milestone approval, part paid approval for running bill, recovery statement, road roller statement, MB of abstract of cost, bill body, fortnightly labor report and requirement of quality assurance cell, for RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 20 a running account bill. The MB of abstract of cost cannot be prepared without MB of measurement. In the absence of these, no running bill can be accepted by the department. It was further submitted to be correct that the seat where he used to sit , nothing could be seen inside the inner cabin due to partition. Nothing was visible from the main entrance of the room, beyond the partitioned portion. It is further submitted by witness that he was not present in the office when CBI officials conducted the raid and he reached after half an hour and at that time the main door of the room was bolted from inside. There was no computer or printer in the room available at the relevant time. The remaining office had already been closed at that time. Mr. Dharambir never gave him any cheque of Rs.1.0 lac.
3.10 PW-10 Sh.Harish Chander Bangia, Junior Engineer in office of Executive Engineer RPD-2, DDA office complex, Rohini was working under accused P.S.Rai. He has made similar deposition to that of PW-9 Sh.Naresh Kumar Behl. However as per his evidence he was present in the office at the time when CBI has conducted raid. He has further submitted that the CBI has seized certain documents/bills vide recovery memo Ex.PW 1/F bears his signatures at point E on all the pages.
During cross examination, the witness submitted that on RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 21 20.09.2008 when he reached the office Mr.P.S.Rai was not in the office. He reached the office after about 20-30 minutes of his reaching the office. Mr. Dharambir was continuously asking about Mr.P.S.Rai. Mr.Dharambir was waiting for him in his chamber. In the office Mr.Dharambir was already sitting in the cabin. From the main gate of the room it was not possible to see the person sitting inside the cabin of Mr.P.S.Rai. The office rooms used to be locked by the chowkidar after the office working hours and they had no role to play in it. There was no practice of putting lock and key in the drawers of the table. However almirahs used to be locked as important documents were kept in the same. There was no practice of subletting the job work by the contractor except in the exceptional cases and that too after prior approval of the authorities. The witness further stated that he does not remember if his signatures were taken by the CBI on some papers on 20.09.08. He has no knowledge about preparation of any document by CBI on 20.09.08. He remained in the office up to around 12 p.m. (midnight) of 20.09.08. Being Saturday most of the office remained locked. In his office there was no facility of computer/printer. As far as his knowledge, no laptop was issued to any of the officer. It is submitted that the CPWD Manual was applicable to the DDA work without measurement recorded in MB, the MB of abstract of cost cannot be prepared. No bill can be forwarded in the RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 22 absence of these documents. As per CPWD manual and agreement, the contractor is required to submit the bill to the Engineer Incharge. To his knowledge in this matter M/s Sehrawat Construction Co had not submitted any bill. On 20.09.2008 Dharambir kept on sitting for a long time in chamber of Sh.P.S.Rai and had been frequently coming out and going in. One another person was also accompanying Dharambir. When Mr.P.S.Rai came he was meeting Dharambir and they both shake hands with each other. After Mr.P S Rai came the CBI team reached within 5-10 minutes. There were around 10 people in the CBI team. Initially the CBI team apprehended and asked him the reason for being in office on Saturday. Then he was taken to the cabin of Mr. P S Rai and there the CBI officers were threatening and they were also asking Mr.P S Rai to take the money out of the drawer.
3.11 PW 11 is Sh.Pawan Singh, Nodal officer Idea Cellular Ltd. This witness has brought on record the application form of Sh.P.S. Rai in respect of mobile no. 9911372371 as Ex.PW 11/A. During investigation he has furnished the call details of the aforesaid number for the period from 12.9.08 to 21.2.08 running into 6 pages as Ex.PW11/C and further stated that each page bears his signatures at point A. The witness has also filed the certificate u/s 65B of the Indian Evidence Act as the authenticity of the call as Ex.PW11/B. He RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 23 has further stated that as per the call record on 20.09.08 at 2.47pm an outgoing call was made from mobile no. 9911372371 to mobile no. 919323368100 and the duration was 63 seconds and the location of the caller was at Govind Puri, Kalkaji. As per call record at about 4.25pm an incoming call was received from mobile no. 9911372371 and the duration of the call was 33 seconds and the location was Rohini Sector 8 as mentioned in call record Ex.PW 11/C from point B to B. During cross examination the witness submitted that the application form Ex.PW 11/A was received in the Service Delivery Department of IDEA Cellular, as per practice. The nodal officer never receives the application form in any case. The application form do not remain in the custody of nodal officer and the same remained in the custody of Service Delivery Department. He obtained the application form Ex.PW 11/A from the concerned department after intimating them through mail. The witness further submitted it to be correct that certificate u/s 65 of Indian Evidence Act i.e. Ex.PW 11/B was prepared by him while sitting in the Court. It was suggested to the witness that while preparing the said document he had not consulted the call record. The call details Ex.PW 11/C were retrieved from the personal computer system which was connected with the main server of the office.
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3.12 PW 12 is Sh.Suraj Bhan Sehrawat. He has submitted that
he was working as a contractor in DDA in the name of M/s Sehrawat Construction Company. He know Dharambir in whose favour he has executed Power of Attorney to carry out construction work at Rohini, RPD II, DDA about three years ago. The witness has correctly identified the SPA dated 9.8.07 Ex.PW 1/B and further submitted that it bears his signature at point A. The agreement dated 18.7.2007 executed between Sh. V. K. Sharma, Executive Engineer, Rohini Project, Division II, DDA, New Delhi is Ex.PW 9/B which bears his signatures at point A. The said agreement was for carrying out the work in Sector 29 and Sector 30 (Part) Rohini, Phase IV and V issued by the office of Executive Engineer on 13.07.2007 which bears his signatures at point B and is part of Ex.PW9/B. The witness has pointed out the letter dated 13.6.2007 part of Ex.PW9/B on the letter head of M/s Sehrawat Construction Company for negotiating the rate of road work rewarded to him, addressed to Chief Engineer DDA Rohini Complex and submitted that it bears his signature at point A. During cross examination the witness has submitted that the language of the SPA was drafted by legal advisor Mr.Jain having his office at A-1, Janak Puri. Ex.PW 1/B was signed at his residence. The witness further submitted to be correct that he had not gone to RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 25 purchase the stamp paper nor visited the office of Mr. Jain. Typed SPA was brought to his house by Dharambir and he signed it there. The SPA Ex.PW1/B was executed by M/s Sehrawat Construction Company. The attention of the witness was drawn to the SPA Ex.PW1/B where it is mentioned that it is executed as Proprietor of M/s Sehrawat Construction Company. The witness further submitted that he never prepared the set of papers for claiming the amount as running payment. On this score he has submitted that it was used to be done by Dharambir. Vide SPA Ex.PW1/B he has not authorized Dharambir for any other job except to execute the project work. He was aware of the fact that complainant Dharambir was also registered contractor with the DDA but he did not know in what name and style he was registered and since how long. He had never gone through the contents of the agreement with DDA as he did not find it necessary. As per the terms and conditions of the agreement he had to appoint the Principal Technical Supervisor to look after the allocation work. He had also appointed some engineer as Principal Technical Supervisor but he did not remember his name. He used to pay the salary in cash but due to lapse of time he do not remember the salary of said supervisor. Without going through the income tax return of the concerned year he cannot tell if he had shown in the income tax return the salary paid to the supervisor. He do not remember if any approval RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 26 from DDA was obtained for Milestone. He did not know the meaning of Milestone. He never obtained approval for Milestone in any work. He has gone through the Award letter Ex.PW12/DX1 and as per the same the estimated cost of the tender was Rs.63,07,691/- and the tender amount was Rs.52,78,682/-. He did not remember how many running bills were received by him in the present work contract. He cannot tell the amount received from DDA in this regard. However, the witness further submitted that cheques were issued in the name of M/s Sehrawat Construction Company and the said amount was shown in the Income Tax Return. Dharambir was helping him being his friend without any salary. He had verbally authorised Dharambir to use the letterhead of M/s Sehrawat Construction Company for dealing with DDA. The witness further submitted to be correct that he was not aware what the letter/communication from DDA pertaining to the work construction involved in the present case or what reply was given by Dharambir in this regard. He has further submitted that he was also not aware if Dharambir had given any reply to the letters/communication from DDA. The test check is to be submitted by JE and AE when there is any delay in completion of the work then milestone approval is required. In the present case he has not signed any running bill nor he was aware if any running bill was submitted in the present case and if so whether any annexure was annexed RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 27 alongwith the same. He does not remember the amount of the draft/drafts submitted alongwith the tender application. He do not know the date and the bank from where these draft/drafts were obtained by Dharambir. The witness further submitted that he did not know when he repaid the amount of draft to Dharambir. The letter Mark-DY1 was shown to the witness to which the witness has submitted that he did not remember if he had received any such letter or had given reply to DDA. The witness further submitted that he did not remember if vide letter Mark-DY1, he was informed that it was reported by AE, Incharge of work that his representative had misbehaved with him in the office and requested to depute some other representative in place of Dharambir Singh to take instructions from the department. In this respect the witness voluntarily submitted that he had received telephone call from Executive Engineer in this regard and he visited him in DDA office and in the office Executive Engineer where accused Dharambir had apologized for his act. The witness further submitted that he did not know what was mentioned in letter Mark-DY1 that earlier also vide letter dated 25.7.07 he was requested to withdraw Dharambir from this work but he failed to do so and he was also informed that if he wanted the work to be completed smoothly, Dharambir should be withdrawn from the work immediately in the interest of work. The witness was shown the letter RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 28 dated 25.09.07 Ex.PW12/DX8 regarding it the witness submitted that he had received the said letter but had shown his ignorance if he had replied to the said letter. The witness further submitted that before receiving said letter he had already met with Executive Engineer as he had been informed on telephone that Dharambir used to misbehave. He had met Executive Engineer twice regarding complaint against Dharambir. There was no specific reason for not taking any action against Dharambir despite complaints of misbehavior against him. He did not remember as to when he met the Executive Engineer and how many days before he had received letter dated 25.9.07. He did not remember if he had given any reply to letter dated 01.08.07, 13.08.07 and 07.09.07 as mentioned in letter dated 25.09.07 Ex.PW12/DX8. The witness further submitted that the contractor who had been awarded work contract cannot sublet the same to another contractor. As per SPA Ex.PW1/B he had not authorized Dharambir to raise the bill/running bill with DDA. As per agreement with DDA Ex.PW 9/B Clause 8 only the contractor can raise the bill.
3.13 PW 13 is Dr.Rajinder Singh, Principal Scientific Officer and Head of Physics and Forensic Voice Identification Division, CFSL. He submitted to the effact that he had received three sealed parcels from CBI. The parcels were marked by him as Ex.Q-1, RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 29 Q2 and Ex.S-1. The parcel Ex.Q1 and Q2 were containing normal audio cassettes questioned voice of Mr.P.S.Rai and the same were marked as Ex.Q1A and Q2A. The parcel Ex.S-1 also contained a normal audio cassette which had specimen voice recording of Mr.P.S.Rai and the same was marked as Ex.S-1(A). The witness has submitted that he had examined the questioned voice of Mr.P.S. Rai with his specimen voice S1 and found that the question voice of Mr.P.S. Rai tallied with specimen voice with respect to his linguistic, phonetic and other general spectrography parameters. The witness has brought on on record the report prepared by him Ex.PW13/1. He has also identified all the three cassettes that is Q-1 already Ex.P270, Q-2 already Ex.P273 and S-1 already Ex.P276 in Court. The witness was cross examined at length.
3.14 PW 14 is Manish Kumar Upadhyaya, Inspector, CBI, ACB, New Delhi to whom complaint of the complainant was marked for verification by the then SP Sh.Sumit Sharan and the witness further submitted that after verification report Ex.PW 1/D FIR Ex.PW1/A was registered. This witness was also cross examined by ld. Counsel for accused.
3.15 PW 15 is Inspector Prem Nath under whom the trap team
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was constituted on 20.09.2008. He has further submitted that the trap team comprised of Sandeep Chaudhary, Sh.R.C.Sharma, Sh.Hitender Adlakha, all inspectors; SI Sh.Nikhil Malhotra, SI M K Upadhyay alongwith complainant Sh.Dharambir and including independent witnesses namely Sh. K.K.Sharma and Sh.Maheshwar Kumar and subordinate staff. He has further corroborated the story of the prosecution. The witness was cross examined at length by ld. Counsel for accused.
3.16 PW-16 is Dy.S.P. Sandeep Chaudhary, IO of the matter, who has stated all details of the pre-trap proceedings, actual trap proceedings, arrest of accused, recovery memos etc. He was cross- examined at length by ld. Counsel for accused.
PE was closed.
Statement of Accused
4. Statement of accused was recorded under Section 313 Cr.P.C., wherein, he has impleaded false implication and denied all the allegations against him. It has been further submitted that in this matter the complainant has not started the work and it was also a case of subletting to which he had raised objections to this effect on RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 31 07.08.2007 and 13.08.2007 on which the complainant became annoyed and started misbehaving and abusing him. On 7.6.2008, the complainant challenged him to harm physically for which he has recommended for blacklisting the complainant from the approval list of DDA contractors. Further the accused has also filed the written statement under Section 313(5) Cr. P.C. Arguments
5. I have heard the arguments of Ld. PP for CBI as well as ld. Counsel for accused.
5.1 Ld. PP for CBI has submitted that the prosecution has succeeded in proving its case against the accused that the accused has demanded and accepted the amount of Rs.1.60 lac from the complainant. The complainant Dharambir, attorney of M/s Sehrawat Construction Company from whom the bribe amount was demanded by the accused appeared in witness box as PW1 and has proved his complaint to the CBI as Ex. PW1/A. The complaint Ex. PW1/A was marked to PW-14 Sub Inspector, Manish Upadhyay, who in order to verify the complaint on 19.09.2008, joined Sh. Maheshwar Kumar PW-2 i.e. independent witness from Bureau of Indian Standards. The RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 32 conversation of demand of bribe between and complainant and the accused was recorded in DVR. After ascertaining the fact that the bribe has been demanded, he has recommended for registration of FIR. After the FIR was registered, the investigation was entrusted to PW-16 Inspector Sandeep Chaudhary, who after completing the proceedings viz. treating the GC notes with phenolphthalein powder, arranging the DVR, introduced PW-2 Maheshwar Kumar, shadow witness etc. actually laid the trap and during the trap, conversation between accused and the complainant was recorded. The accused was found in possession of the tainted amount treated with phenolphthalein powder and on washing both hands of the accused, the solution turned pink. The solution was sent to CFSL. The sample voice of the accused was taken which was sent for the report of expert for comparison with the conversation recorded in DVR on 19.09.2008 and 20.09.2008. The complainant, shadow witness, other independent witness PW-6 Sh. K.K.Sharma, other trap witnesses PW-15 Sh.Prem Nath have all supported the case of prosecution and have categorically stated all the proceedings conducted before the actual trap and at the time of trap. PW-10 Sh.Harish Chand Bangia, JE with DDA and PW-9 Sh.N.K.Bahl, JE who were present in the office have also supported the case of the prosecution in respect to trap. Apart from these witnesses, two expert witnesses were examined i.e. PW 4 RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 33 Dr.N.M.Hashmi, who has proved the chemical examination of left hand wash, right hand wash and duster wash as PW4/A and PW 13 Dr. Rajender Singh who has proved the voice report of questioned cassettes Q1 and Q2 and sample cassette S-1 as Ex. PW13/1. The conversation took place between complainant and the accused on mobile phone has been proved by PW-11 Sh. Prem Singh,Nodal Officer, who has also proved the certificate as per provisions of Section 65 B of Indian Evidence Act as Ex. PW11/B and call record as Ex. PW11/C. It has been further submitted that ld. Cousnel for accused has failed to shake the testimony of any of the winess on all the important aspects. On the basis of these submissions, it has been submitted that the prosecution has succeeded its case that the accused has demanded and accepted the bribe from the complainant.
It has been further submitted that once it is proved that the accused was found in possession of bribe amount, as per provisions of Section 20 of PC Act, 1988, presumption should be drawn against the accused that the money recovered from his possession was bribe amount.
5.2 On the other hand, ld. cousnel for accused has submitted that the presumption of section 20 of PC Act cannot straightway drawn against accused till the prosecution succeeds in proving beyond RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 34 reasonable doubt that the bribe money was recovered from the accused. It has been further submitted that the case of the prosecution suffers from material infirmities and contradictions, therefore, the prosecution failed to proved that the accused has demanded or accepted any bribe amount.
It has been contended that there is inherent defect in this matter because PW-3 Sh.Bhishma Kumar Chugh had no authority to accord sanction to prosecute the accused and once it is found that the sanction is defective, the whole case of the prosecution collapse.
It has been further submitted that the bill in question was not found from the possession of the accused nor the accused was ultimate authority to pass the bill. Under these eventualities there was no occasion for the accused to demand any bribe from the complainant.
In rebuttal on this aspect, ld. PP for CBI has submitted that even if it is presumed that the accused was not ultimate authority to clear the bill, but even then he was important officer because the bill was to be routed through him and his consent was required. Reliance in this respect has been made in case Chaturdass Bhagwan Dass Patel vs State of Gujarat, AIR 1976, SC 1497.
Ld. Counsel for accused has further urged that no reliance can be made on the testimony of PW1 on various accounts. It has RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 35 been submitted that the complainant Dharambir was running his own company under the name and style of M/s Dharambir and Company. But due to the higher tender amount, the company of complainant was not qualified for the sanction of award in its favor. Hence, he had got the work order in his favor under the name of M/s Sehrawat Construction Company and started carrying out the work of the project on the pretext of attorney of M/s Sehrawat Construction Company. It was clear violation of bye-laws/manual of DDA because the work order could not have been sublet. When this fact came to the knowledge of the accused, he being incharge of the project, has protested the same by making various complaints to his higher authorities against the complainant. When the complainant came to know this fact, his attitude towards the accused became hostile and he started misbehaving the accused, for which the accused was further compelled to make certain written complaints to his higher officers as well as to M/s Sehrawat Construction Company in regard to conduct of the complainant. On the basis of these submissions, it has been submitted that the complainant was having grudge against the accused and on this score he has falsely implicated the accused.
It has been further contended that Sh.Surajbhan Sehrawat, proprietor of M/s Sehrawat Construction Company has appeared in the witness box as PW-12 and on calling his explanation RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 36 he has shown his ignorance on important aspects viz. the preparation of SPA Ex. PW1/B, correspondence between the DDA and M/s Sehrawat Construction Company, appointment of Principal Technical Supervisor etc. which shows that the name of M/s Sehrawat Construction Company was used for the award of the work by complainant. It has been further submitted that it was Dharambir only who was dealing with all the important matters under the name of M/s Sehrawat Construction Company. It has been further submitted that M/s Sehrawat Construction Company after obtaining the work orders, was habitual of delaying the assigned work within the prescribed period, for which the DDA officials used to get annoyed which gives rise to exchange of certain letters/complaints etc. On the basis of these submissions it has been urged that no reliance can be made on evidence of PW-12.
It has been further submitted that the prosecution has examined PW-2 as shadow witness in this matter, but this witness has nowhere claimed that he has witnessed the actual transaction of bribe giving or has overheard the conversation between the accused and complainant in this respect. Hence, no reliance can be made on the evidence of PW-1 in the absence of any corroboration from the shadow witness.
It has been pointed out that PW-1 in his complaint Ex.
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PW1/A has submitted that the accused has demanded Rs.3.0 lac for clearing the bill but in his cross examination, he has stated the said amount to be Rs.3.08 lac. When during cross-examination, explanation was called from PW1 in this respect, he has failed to explain in this regard. Therefore, the prosecution has failed to prove the basic aspect of demand of bribe for which the accused is entitled for benefit of doubt.
Further as per evidence of PW-1, the tainted amount wrapped in the paper was kept by him in his pocket. But the said paper was not seized by the CBI which falsify the story of prosecution in regard to recovery of amount from the accused. It has been further submitted that as per evidence on record, the complainant left for Rohini from the office of CBI alone in his own vehicle. Hence, he was having opportunity to tamper with the tainted amount.
It has been further pointed out that the complainant in his complaint Ex. PW1/A which was made by him on 19.9.2008, has mentioned that he has arranged Rs.1.60 lac to pay bribe amount but by that time he had not negotiated with the accused to settle the bribe amount. As per case of prosecution, the amount of Rs.1.60 lac was settled between complainant and the accused at the time of verification of the complaint Ex.PW1/A. It reflects that the complainant in connivance with the officers of CBI had made false RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 38 complaint against the accused and his motive was to falsely implicate the accused under all eventualities.
In respect to the recording of conversation on the DVRs by the CBI on 19.09.2008 and 20.09.2008, it has been contended that no reliance can be made on the conversation in this respect as the original DVR has not been produced in the Court nor the certificate under Section 65 B of Indian Evidence Act has been filed. Reliance in this respect has been made in case Anwar P.V. vs. P.K.Bashir & ors., (2014) 10 SCC 473.
It has been further contended that as per case of prosecution the raiding party reached at the office of the accused at about 1.00 p.m. but at that time, the accused was not present over there. The room of the accused was opened and accessible to the complainant. The drawer of the table from where the tainted amount has been allegedly recovered was not kept under lock and key. The accused came to his office at about 4.30 p.m.. There is sufficient evidence on record that the complainant has gone to the office room of the accused many a times which shows that the complainant was having sufficient time and opportunity to keep the tainted amount in the drawer of the table of the accused. On the basis of these submissions it has been submitted that the prosecution has failed to prove its case against the accused beyond reasonable doubts and by RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 39 giving the benefit of doubts, he should be acquitted.
6.0 Heard. Material perused.
6.1 Ld. PP for CBI has contended that since the tainted amount was recovered from the possession of the accused, hence, presumption should be drawn against him and accordingly the burden shifts upon the accused to prove that the money recovered from him was not bribe amount. Before proceedings ahead on this score, here it is necessary to reproduce Section 20 of PC Act, 1988, which is as under :-
Section 20: Presumption where public servant accepts gratification other than legal remuneration -
(1) Where, in any trial of an offence punishable under section
7 or section 11 or clause (a) or clause (b) of sub-section (10) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2)Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 40 gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in earlier of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
From bare perusal of Section 20 of PC Act, it is found that the presumption comes into play only after the prosecution succeed in proving beyond reasonable doubt that the accused was found in possession of bribe amount. In this matter, ld. Counsel for accused has disputed the recovery of amount from the accused on the aforesaid grounds, hence, without discussing all these aspects, the presumption cannot be drawn against the accused.
7.0 In regard to sanction to prosecute, the same is required u/Section 19 of PC Act. Inter alia, as per Section 19, the sanction of the Center Government is required to remove its employee. PW-3 Shri B.K.Chugh, has submitted to the effect that during the relevant period 2008, he was posted as Engineer Member, DDA and while RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 41 holding said post, he was one of the three members authority looking after entire engineering and agricultural wing including sanction to prosecute Asst. Engineers and equivalent officers being their appointing and removing authority. The witness has proved the sanction order dated 15.12.2008 as Ex. PW3/A. During cross- examination the witness has stated to the effect that he has considered all the relevant documents required to accord the sanction. There is noting in cross-examination of this witness which casts suspicion about the competency of this witness to accord sanction. As matter of fact, the witness was not cross examined in this respect and even no suggestion was put to him that he was not competent to grant sanction. Under these circumstances, there is no ground to doubt the sanction order Ex. PW3/A or competency of this witness to accord sanction. The arguments of ld. counsel for accused in this respect are found to be without any force.
8.0 The next limb of arguments of ld. Counsel for accused is that no reliance can be made on the audio cassettes Ex. Q1 and Q2 and even on their transcriptions Ex. PW2/B and Ex. PW2/C. In this respect the evidence of PW-14 Inspector Manish Kumar Upadhyay, who has verified the complaint and PW-16 IO DSP, Sandeep Chaudhary have been perused. PW-14 Inspector Manish Kumar RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 42 Upadhyay stated that at the time of verification of the complaint on 19.09.2008, the conversation between accused and complainant was recorded on the DVR. Thereafter, the recording of the DVR was transferred to the audio cassette Ex.Q1.
PW-16 IO DSP Sandeep Chaudhary has also made similar deposition and stated to the effect that the conversation of accused and complainant held on 20.09.2008 was recorded on DVR which was further transferred from DVR to audio cassette Ex.Q2. As stated earlier transcription Ex. PW2/B and Ex. PW2/C pertains to the recording on cassettes Ex. Q1 and Q2 recorded on 19.09.2008 and 20.09.2008, respectively. During all these proceedings one fact remained on record that the cassettes Ex. Q1 and Q2 are the copies of recordings recorded in electronic device i.e. DVR. Here Section 65 B of Indian Evidence Act comes into play. In case P.B.Anwar vs. P.K.Bashir, 2014 (10) SCC 473, Hon'ble Supreme Court, inter alia, held as under :-
15. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
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(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and
(e) That certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to be the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, compact disc (CD), video compact disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two ahllmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
22. ..............................Thus, in the case of CD, RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 44 VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65-B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.
Reverting to the present matter, as came earlier, the device used by the CBI to record the conversation was DVR i.e. electronic device. Hence, in view of provisions of Section 65-B of Indian Evidence Act, the prosecution was required to produce the primary evidence i.e. original DVR or the certificate of genuineness of the person who has copied the data from the DVR either in the audio cassettes or by way of recording transcription. But neither the original DVR has been produced nor any such certificate has been issued. Hence, in the light of provisions of Section 65 B of Indian Evidence Act and in case P.B.Anwar vs. P.K.Bashir (supra) the entire proceedings of recording conversation and producing of audio Cassettes Ex. Q1 and Q2 or their transcriptions Ex. PW2/B and Ex. PW2/C are not admissible in evidence, hence, cannot be relied upon.
9.0 Further as pointed out, admittedly the demand of bribe amount by the accused as stated by the complainant in his complaint Ex. PW1/A is different from the statement given by him in this respect in the Court. Here it is necessary to re-produce the relevant portion of RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 45 the cross-examination of PW-1, which is as under :-
"Accused demanded Rs.1,60,000/- from me on 19.09.2008. Accused also talked about the demand of Rs.3,08,000/- on the same day i.e. 19.09.2008. Accused did not talk about the demand of Rs.3,00,000/- but he talked about Rs.3,08,000/-. The demand was for Rs. 3,08,000/- but I can not explain the exact reason that why in my complaint the demand was of Rs.3,00,000/-."
The said portion of the cross-examination reflects that the complainant stated that Rs.3.08 lac was demanded by the accused on 19.09.2008 which is different from the amount as mentioned in complaint Ex. PW1/A i.e. Rs. 3.00 lac. On this score it is found that on 19.09.2008 the complaint Ex. PW1/A was verified and the aforesaid cross-examination of witness referred to the demand of Rs. 3.08 lac made by the accused on 19.09.2008. Apart from the aforesaid cross-examination, no other explanation of the witness was called in regard to demand of Rs.3.08 lac by the accused on 19.09.2008. Even no suggestion was put that the witness had not gone to the office of accused on 19.09.2008 or that no demand of Rs.3.08 lac was made by the accused on 19.09.2008. Under these circumstances the explanation of the witness regarding demand of Rs.3.00 lac by the accused prior to 19.09.2008 and demand of Rs.3.08 lac on 19.09.2008 is self explanatory and it does not effect the case of prosecution if the RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 46 witness states that he cannot explain that why he has mentioned the demand of Rs.3.0 lac in his complaint.
10.0 In respect to the shadow witness, it is found that the prosecution has examined PW-2 Maheshwar Kumar as shadow witness. Before analyzing his evidence, here it is necessary to reproduce the necessary portion of cross-examination of PW-2, which is as under :-
"I do not know about my position of standing at the time when the complainant entered in the office room of the accused. On 20.09.2008, I remained mobile during the period the complainant remained inside the office room of accused as I was walking in the gallery. I remained outside for about half an hour. There were other officials of DDA were present inside the office room of the accused, while I was outside and walking in the corridors but I cannot tell the number of persons present there."
From the said cross-examination, the Court has no hitch to reach at conclusion that the shadow witness has not witnessed the exchange of bribe money nor was having any occasion to overhear the conversation in this respect because the witness has stated that he was strolling in the corridor till the complainant remained in office of accused. Moreover, this witness at no stretch of time has claimed that he has heard the conversation of demand of bribe. Hence, the RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 47 evidence of PW-2 Maheshwar Kumar as shadow witness is unworthy of any credit.
11.0 Further ld. Counsel for accused has contended that the accused has been falsely implicated by the complainant due to his earlier enmity. In this regard, from the cross-examination of PW-1, it is found that PW-1 has admitted that the accused has made certain complaints against him and has stated that he has written letter Mark PX1. Further, PW-12 Surajbhan Sehrawat has also stated to the effect that the accused has written certain complaints against the complainant for his manner of working and his behavior. One such complaint Mark DY1 was put to him. PW-12 has further stated that on one occasion, he has taken the complainant to the Executive Engineer, where the complainant has apologized for his conduct. No doubt, the exchange of said letters shows certain bitterness between the parties, but the question arises whether this bitterness amounts to personal enmity which compelled the complainant to file the false complaint against the accused. In this respect it is found that no particular misbehaviorial instance has been cited and put to PW-1 during his cross-examination. Further, as per material on record particularly the complaint Ex.PW1/A, on 07.05.2008 the first payment of a sum of Rs. 41,34,918/- was released to the complainant. Here the Court failed to RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 48 understand that in case the accused was aware that the work order has been sublet by M/s Sehrawat Construction company to the complainant then why first payment was released and why it was not withheld. It is well settled law of land that the enmity is double edged sword and it may or may not be the reason to false implicate the accused. But it depends upon facts and circumstances of each case.
In this case, the accused at any stretch of time has not explained or justified the reason of clearing the first bill of the complainant. Under these eventualities, holding the payment of second bill without any justified reason reflects the malafide intention of the accused and it cannot be ruled out that the letters might have been written by the accused to compel the complainant to pay him something as reward to clear the second bill. Under these eventualities, there is no reason to believe that the complainant has filed the present complaint to rope him in the false case due to any earlier enmity. The arguments of ld. Counsel for accused in this regard are found to be without any force.
12.0 One of the contention of ld. Counsel for accused is that the complainant was running the entire show under the name of M/s Sehrawat Construction Company. In this respect, evidence of PW-12 Mr.Surajbhan Sehrawat has been perused. Some of the relevant RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 49 portions of the cross-examination of this witness is as under :-
It is correct that I had not gone to purchase the stamp paper nor visited the office of Mr.Jain and the typed SPA was brought to my house by Dharambir and I signed it there. ......... Due to lapse of time I do not remember the total cost of project in question. ............ I cannot say how many running bills were passed by the DDA in the present case. I had never prepared the set of papers for claiming the amount as running payment. Vol. It used to be done by Dharambir.I am not aware of if Dharambir is technically qualified for the job assigned to him............. The contract of development work was executed by my company under the supervision of Dharambir. Occasionally I used to visit site myself........... I had also appointed some engineer as Principal Technical Supervisor, but I do not remember his name now. I used to pay him salary in cash Due to lapse of time I do not remember the salary of said supervisor.............. I do not remember how many running bills were received by me in the present work contract. I also cannot tell the total amount received from DDA in this regard............. I had not signed any running bill. It is correct that I am not aware as to whether any running bill was submitted in the present case and if so whether any annexures was annexed alongwith the same............ It is correct that Dharambir used to make payment to the labourers in cash. I never received any voucher or receipt of such payment........ I cannot say if there was delay of 39 months 12 days in completion of the said work. Vol. Whatever is mentioned in record is correct.
RC No.37(A)/08 (Bhupesh Kumar)
CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South),
New Delhi/20.10.2015
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The manner in which this witness has replied to queries, in regard to the project in question, it appears that the witness being the contractor of the project, is not aware of the important issues regarding the project. To all the important queries, he has time and again replied that Dharambir i.e. the complainant/PW-1 might be aware of the same. Here the question arises, if accused is entitled for benefit of the same. On this account, it is found that in this matter, the court is not required to adjudicate the question of sub-letting. The dispute before the Court is that the accused demanded and accepted the bribe, or not. Here for the sake of arguments, at this stage, if it is presumed that the work order was sub-let by M/s Sehrawat Construction Company as discussed earlier, even then one fact remained on record that the bill in question was not the first bill required the approval of the accused. Under these eventualities, it is found that the accused is not entitled for any benefit despite the existence of all the aforesaid facts in the evidence of PW-12.
Further admittedly, PW-1 complainant has stated that the tainted money was given to him which was wrapped in the paper. As matter of fact, no such paper was seized by the CBI at the time of raid from the office of accused.
In this respect it is found that the prosecution has brought RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 51 on record the handing over memo Ex. PW1/E, inter alia, containing the handing over tainted amount to the complainant. But this memo does not show that the tainted amount was kept in the pockets of the complainant after wrapping the same with the paper. It is also matter of evidence that the complainant went to the office of the accused at Rohini from CBI office alone on his independent vehicle. Now the question arises whether the complainant has tampered with the amount. In this respect it is found that the Annexure A of handing over memorandum Ex. PW1/E contains the numbers of currency notes of denomination of Rs.1000 and 500. As per recovery memo Ex.PW1/F the currency notes recovered from the accused tally with the numbers of notes mentioned in the Annexure-A of Ex. PW1/E. Meaning by the same currency notes were recovered from the accused which were handed over to the complainant after treating the same with phenolphthalein powder. Under these circumstances, much importance cannot be given to the statement of the complainant that the notes were wrapped in the paper, or that no such paper was recovered.
13.0 One of the contention of ld. Counsel for accused was that no reliance can be made on the evidence of PW-11 Pawan Singh, Nodal Officer of Idea Cellular Ltd. on the ground that he has not filed RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 52 proper certificate u/Section 65 B of Indian Evidence Act in respect to the call details. In this respect it is found that PW-11 Sh.Pawan Singh, has brought on record the details of call records of mobile number 9911372371 of accused and mobile number 9312268100 of the complainant as Ex. PW11/C. The witness has also prove certificate under Section 65 B of Indian Evidence Act in support of authenticity of call record, as Ex. PW11/B. No doubt the witness has admitted that he has prepared the certificate while sitting in the Court but he has specifically denied the suggestion that he has prepared the certificate without going through the record. No further explanation in regard to the said record was called. Hence, in the absence of any cogent material, the Court cannot presume that the witness has issued the certificate without perusing the record. Further the witness has stated that he has retrieved the data of call details Ex. PW11/C from his personal computer. Therefore, the said certificate is found to be genuine and there is no legal impediment in admitting the call record Ex. PW11/C. 14.0 Further Ld. Counsel for accused has also pointed out certain contradictions between the evidence of members of raiding party and submitted that their evidence in regard to the make of RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 53 vehicles and number of vehicles in which they traveled to the office of accused from CBI office, is not clear. On this aspect, admittedly there are certain contradictions but such type of contradictions are bound to happen, how much trustworthy and reliable the witness may be.
15.0 Ld. Counsel for accused has vehemently submitted that the trap team reached at the office of the accused at 1.00 p.m. whereas the accused reached at his office at 4.30 p.m. and during this period the complainant has visited the office room of the accused and during this period, the complainant himself has kept the tainted amount in the drawer of office table of the accused.
On this score, the evidence of all the material witnesses scrutinized carefully and it is found that PW2 Maheshwar Kumar during his cross-examination has stated that complainant had visited the office room of the accused 2-3 times prior to meeting the accused. PW6 Krishan Kumar Sharma during his cross-examination has stated to the effect that the complainant might have visited the office room of the accused twice or thrice prior to the arrival of accused. As per evidence of PW10 Harish Chand Bangia, on 20.09.2008 Dharambir kept on sitting for a long time in the chamber of PS Rai and he had been frequently coming out and going in. Hence, as per evidence of all these three witnesses, the complainant entered the office room of RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 54 the accused more than once, prior to arrival of the accused in his office. Whether any reliance can be made on the evidence of these witnesses in this respect or not, would be looked into only after going through the evidence of complainant himself and other witnesses.
As per evidence of IO DSP Sandeep Chaudhary, after the complainant visited the office room of the accused for the first time, he remained with the trap team till 4.30 p.m. when the complainant again went to the office room of the accused.
During cross-examination of PW-1, his explanation in this respect was called. Here it is necessary to re-produce the cross- examination of PW-1 in this respect, which is as under :-
As soon as I reached in the office room of accused I asked Chowkidar Hansraj about accused P.S.Rai and Hansraj stated that he was not aware about Sh.P.S.Rai. Thereafter, I came back at the CBI officers who were standing outside the Rohini Office of DDA. Thereafter, I did not visit the office room of accused to know whether he had come back. It is wrong to suggest that I am deposing falsely in this context as I remained sitted in the office room of the accused.
The said portion of cross-examination of PW-1 reflects that this witness went to the office of the accused only once where the Chowkidar Hansraj met him and he returned back to the other trap team members. As matter of record, no further explanation or RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 55 suggestion was put to the witness that he went to the office of the accused more than once or that Chowkidar Hansraj did not meet him in the office room of the accused. The evidence of this witness further shows that the accused has not put his defence to the witness that he himself has put the money in the drawer of the accused to falsely implicate him, due to previous enmity with accused. Under these circumstances the evidence of PW-1 in regard to his single visit to the office room of the accused, in the absence of the accused is found to be clear, consistent and there is no reasonable ground to doubt his testimony in this respect.
The other important witness is PW-5 Hansraj, Chowkidar in the office of accused. His evidence reflects that he was present in the office of accused on 20.09.2008. But during his cross- examination, his version was not called that how many times, the complainant entered into the office room of the accused in the absence of accused.
As stated earlier, PW-2, PW-6 and PW-10 have stated that the complainant entered into the office room of the accused more than once. Now the question arises whether on the basis of evidence of all three witnesses, the evidence of PW-1 is liable to be discarded. In respect to evidence of PW-2, it is found that though this witness has stated that the complainant had gone to the office of accused 2-3 RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 56 times, but no further explanation of the witness has been called to the effect that for how long the witness remained in the office of the accused or exactly at what time he went to the office of the accused.
In regard to evidence of PW-6 Krishan Kumar Sharma in this respect, it is found that he has given vague reply that complainant might have gone to the office of the accused. Hence, it would not be appropriate to rely upon the evidence of PW-6 in this respect.
PW-10 is Harish Chand Bangia he had been working as JE under the accused at the relevant time and it cannot be ruled out that he might have purposely stated so, in order to protect the accused. In these eventualities the evidence of all these three witnesses, in this manner, as compare to the clear and cogent evidence of PW-1, does not inspire the confidence of the Court. Hence, considering the entire facts and circumstances, it is found that there is no reason to brush aside the evidence of PW-1 that he had visited the office room of the accused only once, prior to arrival of the accused in his office.
One of the contention of ld. Counsel for accused is that the CBI officers have not searched the complainant again to ascertain, if he was in possession of the tainted amount, or not, after the first visit of the complainant to the office room of the accused. Per contra, on this score, ld. PP for CBI has submitted that it was not appropriate for the CBI officers to conduct search of the complainant again in the RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 57 office premises of accused because the currency notes were treated with phenolphthalein powder and in case this fact came to the knowledge of any person, in the office of the accused and there was apprehension that the purpose of the trap might become futile. On this score, I find substance in the contention of ld. PP for CBI that there was no reason for the CBI officers to take back the money from the complainant or touch the money in order to ascertain, if it was intact or not because the GC notes were treated with phenolphthalein powder and there was possibility that phenolphthalein powder might be removed from the GC notes or the solution might be turned pink , in case any of the officer touch the water.
Hence, in the light of this discussion, it is obvious that the complainant has not kept the tainted amount in the drawer of table of the accused.
16.0 It has been further contended by ld, counsel for accused that CBI has not followed the guidelines contained in the CBI manual. It has been pointed out that as per CBI manual, before conducting raid on Government official prior intimation to the Head of Department, where the said Government Officer has been posted, is required to be given. But in this matter, the CBI has not informed any superior officer of the accused. It has been further submitted that as per CBI RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 58 manual, the officers who has verified the complaint should not conduct the investigation, but in this case Sh.Sandeep Chaudhary, member of trap team and later on he was appointed as IO. Further it has been submitted that as per CBI manual, the spot should be photographed or videographed.
In this respect Ld. PP for CBI has submitted that guidelines are mere guiding and not mandatory. It has been further submitted that some times, it is not possible to inform the head of department of the employee due to paucity of time or some times due to apprehension that the information may leak. In respect to evidence of PW-16 Sandeep Chaudhary, it has been submitted that though this witness was member of team which has verified the complaint, but the verification was not marked to him, neither he has recommended for registration of the FIR. It has been further submitted that it is not possible to take the photographs or videograph the proceedings due to shortage of staff with CBI. On the basis of these submission, it has been submitted that the accused is not entitled for any benefit, if the CBI could not follow any guidelines.
As pointed out by ld. counsel for accused, it appears that the CBI has not followed the CBI manual guidelines. But the accused has not come forward with any cogent plea that what prejudice has RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 59 caused to his, in case the CBI has not followed any guideline. Under these circumstances, the accused is not entitled for any benefit, in case the CBI has not followed any guideline or on this score, I find substance in the contention of Ld.PP for CBI, in this respect.
17.0 It has been further urged by ld. Counsel for accused that the accused was not the ultimate authority to pass the bill in question, hence, no motive can be attributed to the accused for demand of any amount from the complainant. In this respect, from evidence of PW-7 Om Prakash, it is found that he has prepared the bill in question Ex.PW2/E for the signature of accused. PW-9 Naresh Kumar Bahl and PW-10 Harish Chand Bangia, both JEs working under the accused have categorically stated that the bill Ex. PW2/E was prepared for the signatures of the accused. Under these eventualities, it is found that the role of the accused for ultimate clearance of the bill was important as his signatures were required on the bill in question. In case Chatrudass Bhagwan Dass Patel vs State of Gujarat, AIR 1976 SCC 1497, Hon'ble Supreme Court has, inter alia, held as under :
Section 161 does not require that the public servant must, in fact, be in a position to do the official act, favor or service at the time of the demand or receipt of the gratification. To constitute an offence under this section, it is enough if the public servant who accepts the gratification, takes it by inducing a belief or by RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 60 holding out that he would render assistance to the giver "with any other public servant" and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour of forbearance which he holds himself out as capable of doing."
In the light of this judgment, the public servant can be hold guilty even if, he is not in position to render any assistance. However, the facts of the present matter are rather grievous because in this matter there is sufficient material on record that the signature of the accused were required for clearance of bill. Hence, in the light of facts and circumstances of the case, it is found that the accused was having sufficient reason to demand the bribe.
18.0 Further in regard to evidence of PW-1, it is found that this witness in un-mistakable terms stated that the accused in order to clear his second bill, on 15.09.2008 has demanded the bribe of Rs.3.0 lac which was again settled as Rs.3.08 on 19.09.2008 and out of which on 19.09.2008 itself, the accused has further agreed to receive a sum of Rs.1.60 lac from the complainant on 20.09.2008. The complainant had arranged sum of Rs.1.60 lac and the details of the GC notes were mentioned in the Annexure A of handing over memo, Ex. PW1/E. The currency notes were treated with phenolphthalein RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 61 powder and the same currency notes were recovered from the accused on 20.09.2008, kept by him in his drawer after wrapping the same with cloth duster. On washing of both hands and the cloth duster, the solution turned pink which shows that the currency notes were treated with phenolphthalein powder which were accepted/handled/received by the accused with his both hands. The evidence of this witness in this respect remained un-controverted, un-shaked and un-impeached during his cross-examination.
PW-4 Dr.N.M.Hashmi who has stated that on the chemical examination, LHW, RHW and DW gave positive result for the presence of phenolphthalein powder and proved his report in this regard as Ex. PW4/A. The evidence of the remaining trap team viz. PW-2 Maheshwar Kumar, PW-6 Krishan Kumar Sharma, PW-14 Manish Kumar Upadhyay, PW-15 Insp. Prem Nath, PW-16 IO DSP Sandeep Chaudhary and even the evidence of PW-9 N.K.Bahl, JE and PW-10 Harish Chand Bangia, proves that on 20.09.2008 the raid was conducted in the office of the accused.
The prosecution has examined PW-2 Maheshwar Kumar as shadow witness. But his evidence as shadow witness is found to be un-corroborative. In case C.M.Sharma vs State of Andhra Pradesh, AIR 2011 SC 608, Hon'ble Supreme Court, inter alia, held as under :-
RC No.37(A)/08 (Bhupesh Kumar)
CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South),
New Delhi/20.10.2015
62
On appreciation of evidence, witnesses can be broadly categorised in three categories viz. unreliable, partly reliable and wholly reliable. In case of a partly reliable witness, the court seeks corroboration in material particulars from other evidence. However in a case in which a witness is wholly reliable, no corroboration is necessary. Seeking corroboration in all circumstances of the evidence of a witness forced to give bribe may lead to absurd result. Bribe is not taken in public view and, therefore, there may not be any person who could see the giving and taking of bribe.
In the instant case, as discussed earlier the evidence of PW-1 is found to be fully reliable. Hence, in the light of aforesaid judgment, no independent corroboration is required.
In the light of above discussions, it is found that the prosecution has succeeded in proving that on 15.09.2008, the accused working as Assistant Engineer with DDA being public servant has demanded sum of Rs.3.0 lac from the complainant Dharambir and on 20.09.2008 while working as public servant the accused has abused his official position by illegally demanding and accepting bribe of Rs. 1.60 lac from the complainant for signing his bill and not creating hurdle in future.
Under these circumstances, it is hold that the accused has accepted the bribe amount of Rs.1.60 lac, hence, in view of Section 20 of Prevention of Corruption Act, the presumption can be drawn RC No.37(A)/08 (Bhupesh Kumar) CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South), New Delhi/20.10.2015 63 against the accused that he has accepted the bribe amount. Once it is hold that the accused has accepted the bribe amount, the burden shifts upon the accused to rebut the same. But the accused has not lead any evidence in this respect and failed to discharge his burden in this regard.
In the light of above discussion, it is found that the prosecution has proved beyond reasonable doubt that on 15.09.2008 the accused while posted as Assistant Engineer has demanded the bribe of Rs.3.0 lac from the complainant Dharambir for clearing his bill and on 20.09.2008, the accused by abusing his official position to clear the bill of the complainant, has accepted Rs.1.60 lac as bribe. Hence, the accused is hold guilty under Sections 7, and 13(1)(d) of Prevention of Corruption Act, 1988.
19.0 Let accused P.S.Rai be heard at the point of sentence u/Section 7 & 13(1)(d) of PC Act.
Announced in the Open Court (Bhupesh Kumar)
today i.e. 20.10.2015 Spl. Judge (PC Act, CBI-01 (South)
Saket Courts : New Delhi
RC No.37(A)/08 (Bhupesh Kumar)
CBI vs P.S.Rai Spl. Judge (PC Act), CBI-01 (South),
New Delhi/20.10.2015