Delhi District Court
Cbi vs Fateh Chand And Anr on 3 February, 2024
1
IN THE COURT OF SPECIAL JUDGE:
PC ACT (CBI) - 04, ROUSE AVENUE COURTS, DELHI.
CNR No. DLCT11-001421-2019
CBI No. 351/2019
R.C. DAI 2017-A-0018
CBI/ACB/New Delhi
Under Section 120-B IPC &
7 & 13 (2) r/w 13 (1) (d) of
PC Act, 1988.
CENTRAL BUREAU OF INVESTIGATION
(CBI)
VERSUS
1. FATEH CHAND
S/O MUKTI RAM
R/O H. No.C-8/29, NEAR OMNATH TEMPLE
NEAR MOTHER DAIRY BOOTH, C-BLOCK
SULTANPURI, NEW DELHI
(PUBLIC SERVANT) .. (ACCUSED NO.1)
2. NAVEEN KUMAR
S/O LAXMI NARAYAN
R/O (PRESENTLY) C-186, COLD NO.-73-C-1
KHASRA NO.728, RAMESH ENCLAVE, VILLAGE KIRARI
SULEMAN NAGAR DELHI-110086
PERMANENT ADDRESS:
1710, HIMMAT GARH, BAZAR, SITARAM
DELHI-06.
(CATTLE CATCHER (CONTRACT BASIS)
..(ACCUSED NO.2)
Date of Institution 31-08-2017
Date of Start of 07-07-2023
Arguments
Date of Conclusion of 03-01-2024
Arguments
Date of Judgment 03-02-2024
CBI No.351/2019 Page 1 of 100
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JUDGMENT
FACTUAL MATRIX OF THE CASE
1. The present case was registered by the Central Bureau of Investigation (CBI) on the basis of one written complaint of Sh. Mohammad Chand (hereinafter referred to as 'Complainant'). It was alleged that the complainant was working at the meat shop of one Vineet Kahil registered under the name of M/s Qutub Halal Meat Shop, at shop bearing No.103A, Ward No.1, Mehrauli, New Delhi. As the owner of the said shop namely Vineet Kahil was on bed rest, he requested the complainant to visit office of South Delhi Municipal Corporation (hereinafter referred to as "SDMC"), Green Park, South Zone, Green Park, New Delhi for renewal of meat licence of the shop which was valid upto 31.03.2017. Accordingly, the Complainant went to the SDMC office carrying with him the application file pertaining to the meat shop .He met Veterinary Inspector Fateh Chand (hereinafter referred to as "Accused No.1" (A-1)) as directed by his owner Vineet Kahil.
1.1 It was further alleged that Fateh Chand (A-1) demanded Rs.8000/- from the Complainant and also asked him to pay Rs.2410/- as Licence Renewal Fee. Fateh Chand (A-1) also kept file pertaining to the licence renewal in his custody and asked him (Complainant) to come with bribe amount as well as processing fees receipt. Since the complainant and owner did not wish to pay the bribe, Mohd Chand ( Complainant) made CBI No.351/2019 Page 2 of 100 3 written complaint on 01.05.2017 with S.P, CBI, ACB, Delhi seeking legal action.
2. The said complaint was marked by SP concerned to Inspector N.K Verma for verification. The verification was conducted on 01.05.2017 itself by Inspector N.K. Verma by joining one independent witness Sh. Ankit Dahiya, Tax Assistant, Income Tax Department and the Complainant. One new DVR and new memory card were arranged by the Verifying Officer and the Complainant as well as independent witness were directed to meet Fateh Chand (A-1) at SDMC Office, Green Park. The DVR having memory card on recording mode was kept in the shirt pocket of the Complainant. Thereafter, the Complainant and the independent witness Ankit Dahiya met Fateh Chand (A-1). During the conversation, Fateh Chand (A-1) asked the Complainant to pay a total amount of Rs.15,000/- clarifying that Rs.4400/- would be license fee, Rs.8000/- bribe for other officials and Rs.2000/- bribe for himself (A-1). As the Complainant requested him to reduce the bribe money, Fateh Chand (A-1) reduced Rs.2000/- which he had demanded for himself but asked him ( complainant) to pay Rs.8000/- for other officials and Rs.4400/- for renewal fee of meat shop. The said conversation was duly recorded which confirmed the demand of bribe by Fateh Chand (A-1). The verification memo dated 01.05.2017 was prepared in the CBI office by Inspector N.K. Verma. The memory card Q-1 was kept in brown colour envelope and sealed with CBI seal. The seal and DVR were handed over to independent witness namely Ankit Dahiya with CBI No.351/2019 Page 3 of 100 4 direction to produce the same on 02.05.2017. The Verifying Officer recommended for registration of case under Section 7 of Prevention of Corruption Act, 1988 ( hereinafter referred to as "PC Act") against Fateh Chand (A-1). Accordingly, the present case was registered on 02.05.2017 under Section 7 of PC Act.
2.1 The investigation was then entrusted to Inspector Ramesh Kumar for laying a trap. The trap team, comprising of complainant, Vineet Kahil (owner of the Meat Shop) independent witnesses Ankit Dahiya, Sh. Munish, both Tax Assistants, Income Tax Department and other CBI officials, was formed. Government Currency (GC) notes amounting to Rs.12400/- were brought by Vineet Kahil for trap proceedings. The purpose and significance of phenolphthalein powder on the said notes was explained by CBI Inspector Harnam Singh, and thereafter the tainted amount of Rs.12400/- was kept by Complainant in right pocket of his jeans. The said proceedings were recorded in Handing Over Memo dated 02.05.2017 which was signed by all the members of trap team.
2.2 The trap was then laid on 02.05.2017. The Complainant and independent witness Ankit (who acted as Shadow Witness ) were directed to give signal by giving a call to Mobile No. 96500 94287 of Inspector/TLO ( Trap Laying Officer).
2.3 Thereafter, the Complainant alongwith independent witness Ankit Dahiya went inside the room of Fateh Chand (A-1) at SDMC office Green Park, New Delhi, where they came CBI No.351/2019 Page 4 of 100 5 to know from the staff that A-1 was not available in his room. They waited sitting outside in front of Room No. 18. After some time, they again entered the room where Fateh Chand (A-1) met them. The Complainant enquired about the file upon which Fateh Chand (A-1) directed Naveen Kumar (hereinafter referred to as "Accused No.2" (A-2) ) to take out his file. Naveen Kumar (Accused No.2) after checking the file informed that Complainant had not deposited processing fee of Rs.300/-. A-1 then asked the Complainant to give Rs.8000/- as bribe and Rs.300/- as processing fees. Fateh Chand (A-1) also asked the Complainant to retain Rs.4400/- being the renewal fee and pay the same later on. Thereafter, the Complainant handed over Rs.8300/- to Accused No.2 as directed by Fateh Chand (A-1). Naveen Kumar (A-2) accepted the bribe money from the complainant, counted the same and kept it in left pocket of his shirt. During the said period, Naveen Kumar (A-2) asked complainant "Kitne Hai" and the Complainant replied "aath hazaar ten sau hai, 4400 ye bad me keh rahe hai. Naveen Kumar (A-2) replied "teen sau ki parchi kt jaegi isme thik hai."
2.4 The TLO received a call from mobile No. 95824 21689 from independent witness Ankit Dahiya who informed that transaction of bribe money was over. Immediately, TLO alongwith other team members rushed to Room No.18. They took the DVR from the Complainant and switched it off. The Complainant indicated towards Fateh Chand (A-1) and Naveen Kumar (A-2) and stated that as per the direction of A-1, he had given Rs.8300/- to A-2 and remaining tainted amount of CBI No.351/2019 Page 5 of 100 6 Rs.4100/- was with him. The bribe amount of Rs.8300/- was recovered from the left side pocket of shirt of Naveen Kumar (A-2) by Independent witness Munish. The said amount was sealed and seized. Remaining amount of Rs.4100/- was also sealed and seized from the complainant. Other incriminating material was also collected as evidence in the matter.
2.5 During his interrogation, Naveen Kumar (A-2) revealed that he is appointed as Cattle Catcher by MCD on contract basis. But he was also working with Fateh Chand (A-1) for collecting/ accepting illegal gratification from shop owners/persons. He further disclosed that on that day, he had accepted Rs.8300/- from the Complainant for getting renewal of licence of his Meat Shop. He also disclosed that Fateh Chand (A-1) had collected some other amount and kept in his right side back pocket of the trousers. On his disclosure personal search of Naveen Kumar (A-2) was carried out and unaccounted amount of Rs.46,000/- was recovered. Thereafter, from the personal search of Fateh Chand (A-1), unaccounted amount of Rs.52,970/- was recovered from right side front pocket of the trousers of A-1.
2.6 During further investigation, files pertaining to licence complainant's shop and other files were seized from the room of A-1 in the presence Dr. V.N. Bhagat, Deputy Director Health. The rough Site Plan was prepared. Both the accused persons were arrested. Due to closing time of the office, the recovery memos could not be prepared at the spot and remaining proceedings were carried out at CBI Office. The DVR was taken CBI No.351/2019 Page 6 of 100 7 out and sealed. The memory card Q-2 too was taken out. The sample voices of both the accused persons were taken separately in memory card S-1 and S-2 vide voice memo dated 03.05.2017. Other incriminating material was seized in the matter. Both the accused persons were then arrested in the matter and later on produced before the court. The voice recordings, specimen and DVR were sent to CFSL firstly for preparing the copies and thereafter for expert opinion after preparing the transcripts. The hand washes and the shirt wash too was sent to CFSL. The sanction for prosecution of Fateh Chand (A-1) was obtained from the competent authority at SDMC. After the conclusion of investigation, the chargesheet in the matter was filed on 31.08.2017.
CHARGE
3. The Ld. Predecessor took cognizance of the offences on 20.09.2017 and accused persons were, accordingly, summoned. After supplying the copies and upon the conceding of charge by the accused persons, the charges were framed against the accused persons on 28.03.2018. Fateh Chand (A-1) has been charged for the offence u/s 7 of PC Act. A separate charge for the offence u/s 13 (1) (d) r/w 13(2) PC Act read with Section 120-B IPC is framed against both the accused. Both the accused persons pleaded not guilty to the charges framed and claimed trial.
4. The prosecution, in order to prove its case, has examined 13 witnesses following which statement of both accused persons CBI No.351/2019 Page 7 of 100 8 under Section 313 Cr.P.C was recorded on 24.03.2023.
Prosecution Witnesses
5. Sh. V.B Ramteke (PW-1), Sr. Scientific Officer-cum- Assistant Chemical Examiner deposed that he prepared detailed chemical report dated 30.05.2017 and proved the same as Ex.PW-1/1 with respect to the Hand washes and Shirt wash. He also got exhibited sealed bottles as Ex.PX1, PX2 and PX3, three cloth pieces as Ex.PX4, PX5, PX6 and envelope as Ex.PX7.
6. Sh. V.K. Singh (PW-2), deposed that he was posted as Dy. Director Veterinary Service, SDMC, South Zone in June 2017. He proved the office order dated 24.05.2013 policy for grant of licence of meat shops and office order dated 30.11.2015 which is the revised licence fee/policy of Veterinary Trade Licence as Mark PW2/A and PW2/B respectively. He also deposed about the procedure and other details qua the renewal of meat shop licence .
6.1 He further stated that Fateh Chand (A-1) was posted as Veterinary Inspector with South Zone, SDMC. Naveen Kumar (A-2) who was posted as Cattle Catcher on contract basis. A-2 also used to assist A-1 in his office work, in addition to the work of Cattle Catcher. A-2 was also deputed to assist Veterinary Inspector who used to carry out raids at illegal meat shops. PW-2 further stated that A-2 used to sit in the room of A-1. PW-2 further proved the license file pertaining to the shop of Vineet Kahil which was submitted to him by Fateh Chand (A-1) CBI No.351/2019 Page 8 of 100 9 on 09.05.2016 with proposal to grant licence to said Vineet Kahil for his Shop No. 1073/A, Ward No.1, Mehrauli, New Delhi. He proved the note-sheet in the said file as Ex.PW2/1. Thereafter, the said file was sent to Dy. Commissioner for his approval. After getting the approval, the same was sent to Veterinary Inspector for further necessary action. PW-2 also proved transcription cum voice identification memo as Ex.PW2/2. But he then failed to identify voice of the speaker in conversation contained in the memory cards. PW-2 was also cross-examined on the said aspect by Ld. Public Prosecutor for CBI.
7. Inspector Narendra Kumar Verma (PW-3), deposed that in the year 2017, he was posted as Inspector with ACB, CBI, New Delhi. On 01.05.2017, one complaint submitted by Complainant namely Mohd. Chand was marked to him for purposes of verification. From the said complaint, he came to know that complainant Mohd. Chand was working at M/s Qutab Meat Shop at Mehrauli. Vineet Kahil was the owner of the said shop who was on bed rest due to his illness. Due to this, Vineet Kahil asked the complainant Mohd. Chand to get the licence of the said shop renewed and approach office of SDMC. PW-3 then called independent witness Ankit Dahiya, Tax Assistant and complainant. They were explained the purpose of meeting. One new voice recorder and memory card were arranged. In order to ensure that DVR and memory card were blank, introductory voice of independent witness Ankit Dahiya was recorded. Thereafter, PW-3 alongwith independent witness and complainant went to the office of A-1 at SDMC office at around CBI No.351/2019 Page 9 of 100 10 1700 hours. The complainant was informed that independent witness would accompany him and try to overhear the conversation between him and Fateh Chand (A-1). The DVR was kept in active mode and thereafter the complainant and independent witness Ankit Dahiya went inside the room of accused Fateh Chand. After some time, they came back. The DVR was switched off and complainant was asked to narrate the conversation which had taken place between him and Fateh Chand (A-1). Complainant informed that he inquired about the file for renewal of licence for which Fateh Chand (A-1) demanded Rs.15,000/- i.e Rs.4400/- as processing fees, Rs.8000/- as bribe for other officials and Rs.2000/- as bribe for himself. After negotiation, accused Fateh Chand told that he could reduce his bribe amount of Rs.2000/-, but Rs.8000/- had to be paid to other officials. The independent witness Ankit Dahiya also confirmed the conversation as narrated by complainant. Thus, the verification confirmed the demand of bribe of Rs.8000/- made by A-1.
7.1 PW-3 further deposed that thereafter they returned to CBI office and heard the recorded conversation. The DVR and memory card were then sealed. The DVR and seal were handed over to witness Ankit with direction to produce on next day. PW- 3 prepared verification memo dated 01.05.2017 Ex.PW4/2. He identified signatures of the S.P. on written complaint Ex.PW4/1. PW-3 submitted the report on the next day to SP concerned. PW-3 further identified his signatures on the envelope containing memory card Ex.PX8, and another envelope Ex.PX10 CBI No.351/2019 Page 10 of 100 11 and Ex.PX11. He also identified his signatures on the DVR used during the verification proceedings Ex.PX12 .
8. Mohd Chand (PW-4) who is the Complainant deposed that he was employed by Vineet Kahil in the year 2017. Vineet Kahil runs a meat shop in the name and style of M/s Qutab Halal Meat at Shop No. 1073/A, Ward No.1, Mehrauli. He further deposed that the licence of the shop was in the name of Vineet Kahil which was to expire on 31.03.2017. As Vineet Kahil had undergone eye-operation at Chandigarh, he directed him (PW-4) to take the file of the shop and meet Fateh Chand (A-1) for renewal of the licence. PW-4 further deposed in the last week of April, he visited SDMC Office Green Park and met Fateh Chand (A-1), Veterinary Inspector. He further deposed that initially Fateh Chand ( A-1) told him that there would be expenses of around 10-12 thousand for renewal of licence. He came out of the room of Fateh Chand (A-1) and spoke to Vineet Kahil telephonically. PW-4 told him about the expenses for renewal of licence. Vineet Kahil informed that his file is complete and he would not pay any bribe. He further deposed that on the next day i.e 01.05.2017, he went to CBI office and narrated entire facts to Mr. N.K. Verma and also gave written complaint. He proved the complaint as Ex.PW4/1.
8.1 PW-4 further stated that Inspector N.K. Verma called independent witness namely Ankit Dahiya and he was told about his complaint and assembly. One fresh DVR with new memory card of 08 GB was arranged. The said DVR was played CBI No.351/2019 Page 11 of 100 12 to ensure blankness of memory card and voice of independent witness Ankit Dahiya was recorded in it. Thereafter at about 5:15/5:20 PM, they reached at SDMC Office. The DVR in switched on mode was kept in his left side pocket of his shirt. Thereafter they went to the room of Fateh Chand (A-1) where they remained for about 10 minutes. PW-4 further deposed that he informed Fateh Chand (A-1) that as Vineet Kahil had gone to Chandigarh, he (PW-4) could only pay government fee and was unable to pay any bribe. But A-1 insisted him to pay bribe amount of Rs.10,000/- and also told that he (Accused No.1) would keep only Rs.2000/- with him and rest amount was for senior SDMC officials. Thereafter, A-1 stated that he could waive off his share of Rs.2000/-, but he (PW-4) had to give Rs.8000/-. PW-4 narrated all the conversation to Inspector N.K. Verma and the same was also verified from independent witness Ankit Verma. Thereafter, the memory card in the DVR was played to confirm the narration by Inspector N.K. Verma. The DVR and memory card were sealed with CBI brass seal. One verification memo was prepared by Inspector N.K. Verma. He proved the said verification memo as Ex.PW-4/2. Thereafter, Inspector N.K. Verma handed over the DVR alongwith CBI brass seal to independent witness Ankit Dahiya and asked him to bring the same on the next day i.e 02.05.2017. PW-4 further stated that he was directed by Inspector N.K. Verma to come next day with Sh. Vineet Kahil, owner of the shop and the bribe money .
8.2 On 02.05.2017, PW-4 alongwith Vineet Kahil reached the CBI No.351/2019 Page 12 of 100 13 office CBI where Inspector N.K. Verma, Inspector Ramesh Kumar (TLO), independent witnesses Ankit Dahiya and Munish from Income Tax were already present. The purpose of assembly was explained. PW-4 further stated that he produced Rs.12,400/- ( in the denomination of 5 GC notes of Rs.2000/- each, 04 GC notes of 500/- each and 04 GC notes of Rs.100/- each). The said amount of Rs.12400/- was treated with phenolphthalein powder by Inspector Ramesh Kumar who also gave demonstration. In a DVR, one new memory card was inserted and introductory voice of independent witnesses Ankit and Munish was recorded. After preparation of handing over memo Ex.PW4/3, PW-4 stated that he alongwith others proceeded to the office of A-1. Initially, Fateh Chand (A-1) was not present in his office room, but PW-4 alongwith independent witness Ankit met Naveen Kumar (A-2). PW-4 further deposed that Fateh Chand (A-1) came after sometime and asked him to give Rs.8300/- ( Rs.300/- processing fee and Rs.8000/- as bribe) to Naveen Kumar (A-2). Fateh Chand (A-1) also asked him (PW-4) to retain Rs.4400/- towards renewal licence fee and bring the said amount next day. PW-4 further deposed that he handed over Rs.8300/- to Naveen Kumar (A-2) who kept the said amount in left side pocket of his shirt. In the meanwhile, independent witness Munish signaled Inspector Ramesh Kumar who immediately came in the room. PW-4 further stated that he told Inspector Ramesh that he had given amount to Naveen Kumar (A-2). Thereafter, GC numbers of bribe amount were tallied with GC number of currency notes mentioned in handing over memo (Ex.PW4/3). The recovered bribe amount and remaining amount of Rs.4100/- were seized.
CBI No.351/2019 Page 13 of 100 14Thereafter, solution was poured over the hand and left side shirt pocket of Naveen Kumar (A-2) which turned pink. The said solution was poured in glass bottles and sealed. PW-4 further deposed that independent witness Munish took search of Fateh Chand (A-1) and a sum of approx. Rs. 50,000/- was recovered. Thereafter, personal search of Naveen Kumar (A-2) was carried and Rs.50,000/- was also recovered from him. Certain files lying in the office were seized. PW-4 has proved the recovery memo Ex.PW4/4 and voice identification memo Ex.PW-4/5 .
9. Ms. Meeta Singh (PW-5), the Sanctioning Authority, deposed that in the year 2017, she was posted as Addl. Commissioner, Education and Health on deputation with SDMC. She further stated that her office received one request to accord sanction for prosecution for Veterinary Inspector namely Fateh Chand as she was the competent authority to remove him from service. After going through the documents such as memos, statement of witnesses etc, she accorded the sanction for prosecution of Veterinary Inspector Fateh Chand. The sanction order was drafted by Vigilance Department of SDMC . PW-5 has proved the sanction order as Ex.PW5/1.
10. Sh. Vineet Kahil (PW-6) is the owner of the meat shop M/s Qutub Halal Meat Shop. He deposed that the licence for running the meat shop was to expire on 31.03.017. In February 2017, he had under gone one eye-operation at PGI, Chandigarh and therefore, he handed over the file for renewal of licence to Mohd. Chand (PW-4) who was working at his shop. He proved CBI No.351/2019 Page 14 of 100 15 the renewal application file of his shop as Ex.PW-6/1. PW-6 further deposed that he directed Mohd. Chand (PW-4) to meet Inspector Fateh Chand (A-1) for renewal of the licence. Mohd. Chand (PW-4) after meeting Fateh Chand (A-1) informed him that A-1 had demanded Rs.15000/-, out of which Rs.4400/- would be processing fee and rest as bribe to A-1. PW-6 further deposed that he asked Mohd. Chand (PW-4) to file a complaint with CBI. Mohd.Chand (PW-4) gave one written complaint to CBI. .
10.1 On 02.05.2017, PW-6 went to CBI office where Mohd. Chand was already present alongwith CBI team. He was also carrying 12,400/-. The bribe money was treated with chemical and other proceedings were done. PW-6 further deposed that bribe amount was kept by Mohd. Chand (PW-4) in his right side pant pocket. One DVR was arranged and in order to check its blankness, voice of both the independent witnesses were recorded. He further deposed that it was decided that independent witness Ankit Dahiya would accompany Mohd. Chand (PW-4). Thereafter they all left the CBI office in two vehicles at about 4 p.m/5 p.m and reached near SDMC office at Green Park, New Delhi. Complainant Mohd. Chand (PW-4) and Ankit Dahiya went inside while he (PW-6) and other officials waited outside. PW-6 further deposed that at about 6:00 PM, one CBI officer received call and they all went inside the room, where complainant Mohd. Chand (PW-4), independent witness Ankit Dahiya, Fateh Chand (A-1) and Naveen Kumar (A-2) were present. Chemical process was repeated there.
CBI No.351/2019 Page 15 of 100 1610.2 PW-6 further deposed that independent witness Munish recovered Rs 8300/- from the left pocket shirt of Naveen Kumar (A-2). Further, a sum of Rs.46,000/- was recovered from search of A-2. Naveen Kumar (A-2) disclosed that while working as cattle catcher, he started collecting bribe money on behalf of Fateh Chand (A-1). PW-6 further deposed that thereafter independent witness recovered a sum of Rs.52,000/- from the search of Fateh Chand (A-1) besides two mobile phones, ID card of SDMC and keys of car. Recovery search memos were prepared at CBI office. PW-6 identified his signature on the said recovery search memos already Ex.PW4/4.
11. Dr. Maninder Preet Singh Sodhi (PW-7), Dy. Director, South Zone, SDMC, Green Park deposed that on 26.07.2017, he joined Veterinary Service Department, SDMC, Green Park, as Dy. Director Veterinary. He further deposed that he received a request from CBI to submit certain documents in July 2017. He went to the CBI office and submitted the requisite documents. He proved the production-cum-seizure memo dated 28.07.2017 as Ex.PW7/1. He also proved the office order dated 24.05.2013 marked as PW2/A and Resolution dated 30.11.2015 already marked PW2/B. He further got marked the office order dated 18.12.2015 as PW7/A, posting order of Fateh Chand (A-1) dated 23.12.2015 as Mark PW7/B, office order dated 25.04.2017 marked PW7/C, office order dated 18.08.2008 marked PW7/D, office order dated 15.06.2017 marked PW7/E and office order dated 08.06.2017 mark PW7/F. He further proved the CBI No.351/2019 Page 16 of 100 17 attendance register for the month of May 2017 of Fateh Chand (A-1) and Naveen Kumar (A-2) as Mark PW7/G and PW7/H respectively. PW-7 further deposed that all the said documents are certified by him .
12. Sh. Ankit Dahiya (PW-8 ) is the independent witness who acted as Shadow Witness. He deposed that on 01.05.2017, he was working as Tax Assistant with Income Tax Office. On that day, he was joined in the proceedings of present case at CBI office where he met complainant Mohd. Chand. PW-8 further deposed that he was told that he had to accompany the complainant for verification of his complaint. Thereafter, one DVR was obtained and new memory card was inserted in the said DVR. His voice was recorded and the DVR was kept in the shirt pocket of the complainant. Thereafter, they left for the SDMC office of the accused. PW-8 further deposed that he accompanied the complainant to hear and verify the conversation between Fateh Chand (A-1) and complainant. On reaching the SDMC office, Fateh Chand (A-1) met them and there was negotiation between the complainant and A-1. A-1 told the complainant that the work cannot be done without money and apart from licence fees of Rs.4400/-, an additional amount of Rs.8000/- as bribe was required to be paid which cannot be reduced. A-1 further told that he could give up his share of bribe,but sum of Rs.8000/- was required to be paid. Thereafter, the complainant left with him (PW-8) telling A-1 that he would come tomorrow with money. Thereafter, they reached back to CBI office where the memory card in the DVR was taken out CBI No.351/2019 Page 17 of 100 18 and was sealed. Certain documents were prepared by CBI officials on that day. PW-8 identified his signatures on verification memo dated 01.05.2017 Ex.PW-4/2.
12.1 PW-8 further deposed that on 02.05.2017, he again reached CBI office where he met the complainant Mohd. Chand and owner of the meat shop. Another independent witness namely Munish was also joined in the proceedings. The trap proceedings were demonstrated to them. The complainant produced a sum of Rs.12400/, the number of GC notes were recorded in separate memo Ex.PW4/3. The Phenolphthalein Powder was applied upon the said currency notes. The tainted bribe amount of Rs.12400/- was given to the complainant. One DVR was obtained and new memory card was inserted therein. Introductory voice sample of Munish as well as that of his was recorded. Thereafter, they all reached SDMC office. PW-8 further deposed that he accompanied the complainant whereas CBI officials were following them maintaining some distance. A-1 was initially not present in the room and arrived after some time. He alongwith complainant met A-1 . Fateh Chand (A-1) inquired if the amount had been brought or not. The complainant (PW-4) replied in affirmative and then A-1 asked someone present in his room to take out the file of the complainant. The said person after bringing the file told that fees has not been deposited. Fateh Chand (A-1) asked complainant to pay the said fees also. After some negotiation talks, the complainant handed over the sum of Rs.8300/- (Rs. 300 fees and Rs.8000/- bribe) to said MTS ( Multi Task Staff) who kept the said amount CBI No.351/2019 Page 18 of 100 19 in his pocket. PW-8 thereafter, he made a call to CBI Inspector who alongwith his team came in the room and apprehended Fateh Chand (A-1). The bribe amount was recovered from the pocket of said MTS ( A-2). Thereafter, CBI Officials prepared solution in a beaker and inserted hands of Accused No.2 in the said solution which changed to pink colour. The shirt of Naveen Kumar (A-2 ) was taken off and was dipped off in separate solution and solution turned into pink colour. Thereafter, the officials seized the bribe money recovered from Naveen Kumar (A-2) in a separate envelope. Their personal search was carried out and other amount was also recovered from them. The files lying in the office of Fateh Chand (A-1) were also seized. CBI officials made many documents which were signed by him (PW-8). PW-8 identified his signatures on rough site plan already Ex.PW6/DX and on recovery memo Ex.PW4/4. Thereafter, they returned to CBI office where again his signatures seizure were obtained on the files seized from the room of A-1. DVR and memory card etc were also seized. The same were also heard by them. The said proceedings were done continuously till 4 a.m on 03.05.2017. The voice samples were also recorded .
12.2 PW-8 further deposed that he again went to CBI office after one and half months after 03.05.2017 and on that day, tape recorded conversation was played and its transcript was prepared. PW-8 identified his signatures on transcript cum voice identification memo dated 07.06.2017 Ex.PW4/5.
CBI No.351/2019 Page 19 of 100 2012.3 PW-8 also got proved the envelope containing bribe money Ex.PW8/P10. Similarly, PW-8 got exhibited envelope containing Rs.4100/- recovered from the complainant as Ex.PW8/P11. PW-8 further got proved envelope having shirt of Naveen Kumar (A-2) seized during trap proceedings Ex.PW8/12 and the shirt as Ex.PW8/13. PW-8 further identified three bottles Ex.PX4, PX5 and PX6. PW-8 also identified his signatures on three bottles Ex.PX1, PX2 and PX3. PW-8 also identified his signatures on files seized from the office of A-1 Ex.PW2/1 and ExPW6/1 ( collectively). He also proved the office search memo as Ex.PW-8/P14 and specimen voice samples of both the accused persons as well as independent witness Munish as Ex.PW8/P-15. PW-8 also deposed that personal search of both the accused persons was conducted and around Rs.52000/- were recovered from Fateh Chand (A-1) and around Rs.45,000/ or Rs.46,000/- were recovered from Naveen Kumar (A-2) apart from their mobile phones and I.D card of A-1. He identified his signatures on recovery memo already Ex.PW4/4. Further, he proved the arrest memos of both the accused persons as Ex.PW8/P16 and Ex.PW8/P-17. He also identified voice recordings of complainant Mohd Chand (PW-4) and Fateh Chand (A-1) as well as that of Naveen Kumar (A-2) recorded in Q1 and Q2 .
13. Sh. A.D Tiwari (PW-9), Principal Scientific Officer (Photo) CFSL, deposed that he was posted as Sr. Scientific Officer, Grade-I in May-2017 at CFSL, Lodhi Road. He further stated that he received one letter (D-12) Ex. PW9/1 alongwith CBI No.351/2019 Page 20 of 100 21 four sealed exhibits. He received four sealed parcels with the said letter which were marked as Q1, Q2, S1 and S2 for preparation of five copies of each of memory cards. PW-8 prepared five copies each of the memory cards and prepared six sealed parcels. PW-9 also proved letter dated 23.05.2017 Ex.PW9/2 qua authorisation of some CBI Officer to collect the exhibits and copies. Thereafter, the authorised person came to their office with authority letter dated 25.05.2017 to collect six sealed parcels. He has proved the said letter dated 25.05.2017 as Ex.PW9/3.
14. Sh. Munish (PW-10) is the independent witness who deposed that in May 2017, he was working as Tax Assistant in Income Tax Department. On 02.05.2017, his controlling officer had directed him to attend CBI Office. After reaching the CBI office, he met the complainant Mohd. Chand, Mr. Vineet Kahil owner of meat shop as well as other team members of CBI. Inspector Ramesh Kumar told him about the complaint and explained the trap proceedings. Ankit Dahiya too was present with him. PW-10 identified his signatures on handing over memo Ex.PW4/3 (D-4) and recovery memo Ex.PW4/4(D-7). Thereafter, Vineet Kahil gave an amount of Rs.12,400/- and demonstration was done on the said currency. After demonstration with Phenolphthalein Powder on currency notes, he put amount of Rs.12,400/- in the right side pocket of the complainant. CBI arranged one DVR and blank memory card in which his introductory voice as well as that of PW-8 was recorded. They were also explained that as soon as accused CBI No.351/2019 Page 21 of 100 22 would accepted bribe money, independent witness (PW-8) would make a gesture by rubbing his hands on his face or by making call to CBI team. The serial numbers of the currency notes were noted in separate sheet.
14.1 PW-10 further deposed that after reaching SDMC office, all the team members took their positions. Thereafter, complainant and Ankit Dahiya (PW-8) went inside the room of the accused. After some time, they came back and Ankit Dahiya (PW-8) made a call to one of the team members of the CBI. He alongwith others entered the room of the accused Fateh Chand. Complainant Mohd Chand informed that accused Fateh Chand asked him to hand over bribe amount of Rs.8000/- and processing fee of Rs.300/- to Naveen Kumar (A-2). Complainant, thereafter, gave the said amount to A-2.
14.2 CBI official caught hold of Naveen Kumar (A-2) and put his right hand in solution of sodium carbonate. PW-10 identified his signature on bottle containing pink colour solution Ex.PX2. PW-10 further deposed that he took out the the bribe amount of Rs.8300/-from the shirt of A-2 and serial numbers of the said notes were tallied with serial numbers recorded in the memos. Thereafter, Naveen Kumar (A-2) was asked to take off his shirt which was dipped in the solution of Sodium Carbonate and the water turned pink. The said solution was transferred into a bottle. The bribe amount and the shirt of Naveen Kumar (A-2) were sealed in his presence. PW-10 identified his signatures on envelope already Ex.PW-8/P10 and Ex.PW-8/P11 containing CBI No.351/2019 Page 22 of 100 23 currency notes. He further identified his signatures on parcel Ex.PW-8/P13 containing shirt. PW-10 further deposed that thereafter he conducted personal search of accused Naveen and an amount of Rs.46,000/- was recovered from right side back pocket of his pant. He also conducted personal search of accused Fateh Chand an amount of Rs.52,790/- was recovered from his pocket. PW-10 identified his signatures on Ex.PW8/P14 which are the files seized from the table of accused Fateh Chand. PW-10 also identified his signatures on office search memo Ex.PW8/P14. PW-10 further deposed that accused persons were formally arrested in his presence vide arrest memos Ex.PW8/P16 and Ex.PW8/P17. PW-10 further identified his signature on specimen voice memo Ex.PW8/P15 He also produced the brass seal Ex. PW10/A which was used on each and every memo and was handed over to him to keep it safe and to be produced in the court.
14.3 PW-10 further deposed that on 07.06.2017, he alongwith complainant Mohd. Chand and Ankit Dahiya were present in the office of CBI where Transcription cum Voice Identification Memo was prepared. He identified his signatures on Transcription cum Voice Identification memo Ex.PW4/5 ( collectively). He further identified his signatures on site plan Ex.PW6/DX.
15. Dr. Subrat Kumar Choudhury (PW-11), Senior Scientific Officer (Physics), CFSL deposed that he received the CBI No.351/2019 Page 23 of 100 24 case file from S.P., CBI, ACB, New Delhi on 08.6.2017 vide letter No. RC-DAI-2017-A-018/DLI/7554 dated 07.06.2017. Alongwith the letter, five sealed parcels, specimen seal impressions, certificate of authority and photocopy of questioned transcriptions were received. The parcels received were marked as Q-1, Q-2, S-1 and S-2 and DVR by the forwarding authority. He further deposed that auditory, spectrographic and waveform examination of questioned and specimen voice recordings was carried by him. The detailed report in this respect is Ex.PW- 11/A.
16. Ramesh Kumar (PW-12) Inspector, CBI and Trap Laying Officer (TLO) deposed that on 02.05.2017, the investigation of the present case was entrusted to him. He further deposed that RC Ex. PW-12/1 was already registered when the investigation was entrusted to him. He further deposed that he was handed over the original complaint (Ex.PW4/1) and verification memo( Ex.PW4/2). Having discussed the matter with S.P., CBI, New Delhi,the trap proceedings were conducted qua Fateh Chand (A-1), Veterinary Inspector, SDMC, Green Park, New Delhi.
16.1 He further deposed that one team was constituted consisting of himself (PW-12), Inspector Harnam Singh, Insp Shitanshu Sharma, Insp N.K Verma, Vikas Panu and SI P.K Singh and presence of two independent witnesses namely Ankit Dahiya and Munish, both from Income Tax Department, was secured through Duty Officer. Thereafter, complainant produced CBI No.351/2019 Page 24 of 100 25 a sum of Rs.12400/- in the denomination of Rs.2000/-, 500/-, 100/-. The distinctive number of the GC notes were mentioned in handing over memo already Ex.PW4/3. Owner Vineet Kahil too joined the proceedings. Inspector Harnam Singh gave demonstration of chemical reaction of Phenolphthalein Powder. Independent witness Munish (PW-10) was asked to dip his right hand fingers in the solution. The chemical reaction of the same was shown to all the team members. He further stated that thereafter independent witness Ankit Dahiya (PW-8) was directed to carry out personal search of complainant Mohd. Chand. Nothing was left in his pocket except his mobile phone. Independent witness Munish (PW-10) was directed to put tainted GC notes in the right side pant pocket of the complainant. Witness Ankit handed over DVR and seal given to him after verification. A new memory card inserted in the said DVR. Introductory voices of both the independent witnesses were recorded in the memory card through DVR. It was decided that Ankit Dahiya (PW-8) would accompany the complainant Mohd Chand (PW-4). Both of them were directed to give call on his mobile no.96500 94287 after transaction of bribe amount or they will rub their face with hands. After completing other proceedings, the team reached office of A-1. Both Ankit Dahiya (PW-8) and Mohd. Chand (PW-4) went to the room of A-1. The DVR having memory card switched on mode was with the complainant. Other team members took position around the office of A-1. At about 17:16 hours, one call from the mobile number of Ankit Dahiya (PW-8) was received. They all rushed to the office of A-1. The DVR was taken back from the CBI No.351/2019 Page 25 of 100 26 Complainant and was switched off. Thereafter, complainant indicated towards Fateh Chand (A-1) and disclosed that he had handed over Rs.8000/- as bribe amount to one person, who was, later on identified as Naveen (A-2) and Rs.300/- as processing fee for renewal of his shop. A-2 has kept the said amount in left pocket of his shirt. He further deposed that fresh solution of sodium carbonate and water was prepared in a glass (tumbler) and fingers of right hand of Naveen (A-2) were dipped in the said solution on which colour of the solution turned pink. The said solution was put into a clean glass bottle which was sealed with CBI brass seal. PW-12 identified his signature on the bottle titled RHW Ex.PX1 and another bottle titled LHW Ex.PX-2. Thereafter, PW-12 directed independent witness Munish (PW-
10) to recover tainted GC from possession of Accused Naveen. Munish (PW-10) recovered the tainted GC notes from the left side shirt pocket of accused Naveen. The numbers of GC notes were tallied by the independent witnesses and were thereafter sealed in a brown colour envelope . The same sealed with CBI brass seal. He proved the envelope Ex.PW8/10. PW-12 further identified his signature as well as of other witnesses on the envelope containing balance amount recovered from the complainant as Ex.PW-8/11.
16.2 PW-12 also directed independent witness Munish (PW-10) to carry out personal search of accused Naveen and an accounted amount of Rs.46,000/- was recovered His mobile phone containing two SIMs was also seized. The shirt of Accused CBI No.351/2019 Page 26 of 100 27 Naveen was also seized. PW-12 identified the shirt as Ex.PW8/P13.
16.3 PW-12 further deposed that thereafter, he directed independent witness Munish (PW-10) to carry out the search of Accused Fateh Chand and unaccounted sum of Rs.52,790/-, two mobile phones were recovered .The search memo was also prepared as Ex.PW-12/2 . The car and room of Fateh Chand (A-
1) too was searched .Certain files were seized in presence of Dr. VN Bhagat Dy. DHS, SDMC.
16.4 PW-12 further deposed that thereafter all the team members returned to CBI office. Having heard the recorded conversation in DVR, both the accused persons were interrogated and arrested at about 22:45 hours. The DVR and memory card were seized. PW-12 further deposed that on the next day, all the case property was deposited in the Mal-Khana for safe custody. Thereafter, the investigation of the case was transferred to Inspector Ajay Kumar.
17. Inspector Ajay Kumar (PW-13) deposed that the investigation of the present case was handed over to him on 09.05.2017 by the order of S.P Sh. Abhishek Dular. PW-13 further deposed that after taking over the investigation, he sent sealed exhibits Q1, Q2 containing questioned voice of accused and S1 and S2 containing specimen voice samples to CFSL for preparing the copies for purpose of investigation. PW-13 identified the signatures of Sh. Abhishek Dular on forwarding letter dated as Ex.PW-9/1.
CBI No.351/2019 Page 27 of 100 2817.1 PW-13 further deposed that he sent washes to CFSL for opinion vide letter of SP Ex.PW13/1. PW-13 further stated that after receiving copies of Q1 and Q2 from CFSL, he prepared transcript of recorded conversation in the presence of independent witnesses and the complainant. PW-13 proved the transcription cum voice identification memo Ex.PW4/5 ( colly.) and Ex. PW2/2 . The voices of accused persons Fateh Chand and Naveen Kumar were identified by Dr. V.K. Singh, complainant and independent witness.
17.2 PW-13 further deposed that vide letter already Ex.PW11/C1, memory cards Q1,Q2 and S2 and the DVR were sent to CFSL for obtaining opinion. PW-13 further deposed that he seized documents from office of Dy. Director, South Zone, Green Park, SDMC. PW-13 further deposed that he recorded the statement of witnesses and obtained sanction for prosecution of accused Fateh Chand from competent authority. After completing the investigation, he filed the charge-sheet in the present case.
Statement of Accused Persons
18. After closure of prosecution evidence by the CBI, statement of Fateh Chand (A-1) and Naveen Kumar (A-2) were recorded under Section 313 Cr.P.C on 24.03.2023. The accused persons chose to lead evidence in their defence.
18.1 Both the accused persons in their respective statements CBI No.351/2019 Page 28 of 100 29 recorded under Section 313 Cr.P.C claimed that they are innocent and they have been falsely implicated in the present matter. They further pleaded that the evidence produced by CBI is false, fabricated and tampered.
Defence Evidence
19. Constable Rishi Kumar (DW-1) proved the gate/visitor register w.e.f 13.01.2017 to 22.12.2018 maintained at CBI Office. He proved the same as Ex.DW1/A ( collectively). He further got exhibited relevant entries on the first page Ex.DW1/B and entries dated 07.06.2017 Ex.DW1/C. He further deposed that any name of Mohd. Chand does not appear on Ex.DW1/C. The names of Ankit Dahiya, Munish, Vineet Kahil and Mohd Chand do not appear on Ex.DW1/B.
20. SI Jai Prakash (DW-2) CBI ACB, proved the copies of relevant page of Malkhana Register from Page 46 and 47 dated 02.05.2017/03.05.2017 as Ex.DW2/A (OSR) He further proved the copy of temporary issue register RC-wise of present RC No. 18/17 as Ex.DW2/B (OSR).
21. Pawan Kumar Jolly (DW-3) Administrative Officer, Central Establishment Department, Civil Centre, MCD deposed that in the year 2017 Additional Commissioner MCD was the Appointing Authority of Veterinary Inspector, MCD. He further deposed that the officers who are Level 10 and above as per the Pay Scale belongs to Group 'A' Officers. Similarly, Level 6 to CBI No.351/2019 Page 29 of 100 30 Level 9 as per the Pay Scale belongs to Group B and below this Pay Scale belong to Group C.
22. Prem Prakash (DW-4) Joint Secretary deposed that he was posted in the Veterinary Services Department. He further deposed that no entry register is maintained at Veterinary Services Department. ( Testimony not relevant ).
Arguments of CBI.
23. Ld. Senior Public Prosecutor for CBI in support of their case argued that the witnesses examined by them prove their case beyond any reasonable doubt. He argued that the demand of bribe has been duly proved by complainant Mohd Chand (PW4). It also stands proved through conversation recorded during the verification proceedings conducted by Verifying Officer N.K. Verma (PW-3) . Similarly, the transcript qua the conversation recorded in memory card Q-1 ( Ex. PX8) during verification proceedings of 1st of May,2017 too shows categorical demand of bribe by Fateh Chand (A-1) who was working as Veterinary Inspector, SDMC ( now MCD). In this regard, reliance is also placed upon the transcript part of Ex.PW-4/5 (D-9).
23.1 Ld. Sr. Public Prosecutor for the CBI further argued that even the contemporaneous document i.e Verification Report Ex. PW-4/2 too records the fact of demand of bribe of Rs.8000/- raised by Fateh Chand (A-1) from complainant Mohd Chand CBI No.351/2019 Page 30 of 100 31 (PW-4). The said fact of demand of bribe also stands proved through the version of another independent witnesses i.e Ankit (PW-8) who joined the verification proceedings on 1 st of May,2017 and was also part of trap proceedings on 2 nd of May,2017. He acted as "shadow witness" on both the occasions and thus is the best witness to the transaction .
23.2 It is further argued by the CBI that the second legal aspect which has been proved beyond any doubt is the "acceptance of bribe" by Fateh Chand (A-1) through Naveen Kumar (A-2). A-2 who was the contractual employee of SDMC. He was working under A-1. The said A-2 used to assist A-1 in discharge of his duties as deposed by PW 2 Dr. VK Singh and was present at the time of trap in the same room. At the instance of Fateh Chand (A-1) only, the bribe of Rs.8300/- ( Rs.300 being towards processing fee) was accepted by Naveen Kumar (A-2) .The amount was later on recovered from his possession by independent witness Sh. Manish (PW-10). The Ld. Sr. Public Prosecutor for CBI further argued that the washes taken at the spot of the right and left hand of Naveen Kumar (A-2) who received the bribe money from complainant Mohd Chand (PW-4) also turned pink due to the presence of phenolphthalein powder. Similarly, the reliance has been placed upon CFSL report Ex.PW-1/1 regarding presence of Phenolphthalein Powder in the hand washes. The wash of shirt worn by Naveen Kumar (A-2) at the time of recovery of bribe money wherein the treated amount was kept by him was also seized and the result qua the same is also positive. The said scientific evidence too proves the CBI No.351/2019 Page 31 of 100 32 acceptance of bribe by Fateh Chand (A-1) through his co-worker Naveen Kumar (A-2) as A-2 was acting in conspiracy with A-1.
23.3 It is further argued by Ld. Sr. Public Prosecutor for CBI that the fact of "acceptance of bribe" also stands proved through recorded conversation in memory card Q2 ( Ex. PW8/P3) which took place on 2 nd of May,2017 between complainant Mohd Chand (PW-4), Fateh Chand (A-1) and Naveen Kumar (A-2). In this regard, again the reliance has been placed upon transcript, part of Ex.PW-4/5(D-9).
23.4 Lastly, the reliance has also been placed by Ld. Sr. Public Prosecutor for CBI upon the expert opinion qua recorded conversation given by Dr. Subrat Kumar Choudhury (PW-11), Senior Scientific Officer (Physics), CFSL, New Delhi. He examined the recordings i.e Q-1 and Q-2 with specimen voice of both the accused persons in memory cards S-1 and S-2. He gave the report and opined that the questioned voice in Q-1 and Q-2 being that of A-1 and A-2. It has been further reported by him that the recordings were found out by him to be continuous and no form of tampering was detected. Therefore, the said scientific evidence too proves their case beyond reasonable doubt.
23.5 In support of its arguments/pleas, Ld. Public Prosecutor for CBI has relied upon the following judgments:
(i) Inder Singh & Anr. V. State ( Delhi Administration) 178 Crl.L.J 766.CBI No.351/2019 Page 32 of 100 33
(ii) Bharwada Bhoginbhai Hirjibhai V. State of Gujarat, AIR 1983 SC 753.
(iii) Poonam Chandraiah V State of A.P, AIR 2008 SC 3209
(iv) Mukut Bihari & Anr. V. State of Rajasthan Criminal Appeal No. 870/2012 of Hon'ble Supreme Court.
(v) Hazari lal V. State ( Delhi Administration), AIR 1980 SC 873.
(vi) Prakash Chand V. State ( Delhi Administration) AIR 1979 SC 400
(vii) Rupsinghbhai Punabhai Patel V. State of Gujarat 2006 (3) GLR 2700
(viii) Phula Singh V. State of Himachal Pradesh 2014 (2) Crimes 38 (SC) Arguments on behalf of A-1
24. Per contra, Sh PK Dubey and Sh Hemant Shah Ld. Counsel's for Fateh Chand (A-1) argued that the prosecution has miserably failed to prove their case on the standard of 'beyond reasonable doubt'. There are several legal and procedural defects which render the case of the prosecution to be illegal and doubtful.
24.1 Firstly, it has been argued that the mandatory procedure provided under CBI Manual for conducting the preliminary enquiry on receipt of complaint has not been followed. It is so apparent from the examination of Verifying Officer Sh. N.K. Verma (PW-3). He admitted in his cross-examination that no CBI No.351/2019 Page 33 of 100 34 separate file for conducting the verification proceedings was opened by him, though File No. CO-38/17 was already opened. No such file has come on record and the person who had initiated it has not been identified in the present case. Even the complaint lodged by complainant Mohd Chand (PW-4) Ex.PW- 4/1 is not having any such complaint number which is mandatory requirement under the CBI Manual. In this regard, the reliance has been placed upon judgment viz;Vineet Narain V. Union of India & Anr. (1988) 1 Supreme Court Cases 226. Apart from that, the examination of N.K. Verma (PW-3) further reflects that no entry was recorded in the general diary register which is mandatory nor any arrival or departure entry was made by Verifying Officer before proceeding for verification. Further, no record qua requisition of DVR or memory card has been placed on record by him.
24.2 Secondly, it has been argued on behalf of A-1 that even the contents of verification memo Ex.PW-4/2 are in contradiction to the complaint Ex.PW-4/1. Further, as per the verification memo Ex.PW-4/2, the brass seal 138/2016 was used during the proceedings, but it never saw light of the day during trial. Rather, N.K. Verma ( PW-3) in his testimony claimed that the brass seal 138/2017 was used. The said material contradiction itself puts a question mark over the verification proceedings as well as the authenticity of the sealed envelope containing conversation Q-1. Further, it has been argued that even the transcript of recorded conversation Q-1 Ex. PX-8 does not prove the first ingredient required to be proved by the prosecution i.e "demand of bribe".
CBI No.351/2019 Page 34 of 100 35There is no specific conversation which shows direct, unambiguous or clear demand of bribe by Fateh Chand (A-1).
24.3 Ld. Counsel for Fateh Chand (A-1) thereafter put a question mark over the authenticity of the FIR Ex.PW-12/1. It has been argued that the contents of the FIR are not as per the mandate of law provided under Section 154 Cr.P.C. Neither the complaint of complainant Ex.PW-4/1 has been reproduced nor it is based upon statement of complainant. The annexures tagged with the said FIR cannot be said to be the legal way of recording it as the annexures can be easily altered, removed etc. 24.4 On the facts and appreciation of evidence, it has been argued by Ld. Counsel for Fateh Chand (A-1) that the version given by the complainant Mohd Chand (PW-4) and owner of the shop Vineet Kahil (PW-6) are in contradiction to each other. Mohd Chand (PW-4) claims that he is working under Vineet Kahil (PW-6) and was authorised by his owner to submit the application for renewal of licence qua running of his meat shop . But, no such authorisation has been filed on record nor was seized during the entire investigation by the CBI. The reason for Mohd Chand (PW-4) having approached MCD office with the said application of renewal of licence for running the meat shop in the name of his owner Vineet Kahil (PW-6) ,was on account of the illness of owner. But, surprisingly, PW-6 (owner) suddenly became fit and joined the trap proceedings on the very next day i.e 2nd of May,2017. No record with respect to the CBI No.351/2019 Page 35 of 100 36 medical illness of PW-6 was seized during the entire investigation from PW-6 or PW-4.
24.5 The question mark has also been raised over the site plan Ex. PW-6/DX. It has been argued that it is defective and incomplete site-plan. The entire chargesheet as well as the testimonies of the witnesses does not make it clear as to who is the author of the same. The positions of all the witnesses has also not been shown therein and therefore, the said document is no help to the prosecution.
24.6 The question mark also been raised over the entire case of the prosecution and particularly the complaint of Mohd Chand (PW-4) qua demand of bribe by Fateh Chand (A-1). As per the complaint, Fateh Chand (A-1) demanded bribe of around Rs. 8000/- for processing the licence renewal application, though there is confusion since the beginning as to the exact amount of bribe as initially it was around Rs.12000/-. But while deposing in the Court, PW-4 and PW-6 claimed that it was Rs.15000/-. Further, the material issue to be seen is that the file for renewal of licence of meat shop has to be submitted, with Centralized Counter as reflected from the documents of the prosecution itself i.e Licence Policy Mark.PW-2/A . So, in the said backdrop, there was no occasion for Mohd Chand (PW-4) to directly approach Fateh Chand (A-1) for submission of his file. Similarly, Vineet Kahil (PW-6) having asked Mohd Chand (PW-
4) to approach Fateh Chand (A-1) in this regard, is also false fact.
CBI No.351/2019 Page 36 of 100 3724.7 Thereafter, the question mark has been raised over the trap proceedings and the manner of recovery of tainted amount and remaining amount of Rs.4100/- from complainant. The identity of the person who recovered the tainted amount is not clear nor his hand wash was ever taken. Similarly, the remaining amount i.e Rs.4100/- which remained with PW-4 despite being seized by the TLO was never produced in the court. Similarly, no justification has been given by the prosecution as to why the recovery memo etc was not prepared at the spot despite the CBI team and all others having remained at the office of MCD till about 9:00 PM.
24.8 As far as the CFSL report qua hand washes and shirt wash Ex.PW-1/1 is concerned, the question mark has been raised as to the findings given in it. Sh. V.B Ramteke (PW-1) Sr. Scientific Officer was cross-examined on the said aspect and during his cross-examination, he admitted that at least presence of 5 micro- grams of phenolphthalein is required to find out its presence. But, he did not carry out any test to find the said percentage. In the said backdrop, not much reliance can be placed upon CFSL report Ex.PW-1/1. Similarly, the question mark has been raised over the CFSL report qua questioned recordings in Q-1 and Q-2 submitted by Dr. Subrat Kumar Choudhury (PW-11). The said witness in the cross-examination admitted to the fact that CFSL, CBI, New Delhi is not notified under Section 79A of Information Technology Act, therefore, the report submitted by him is inadmissible. He has not followed the prescribed CBI No.351/2019 Page 37 of 100 38 procedure for carrying out the voice identification. Lastly, on the said aspect, it has been argued that question of safe custody of Q-1 and Q-2 is doubtful as the custody of the brass seal used in sealing the said memory cards Q-1 and Q-2 is in doubt itself. PW8 with whom it remained after the verification , remained silent on it .
24.9 Further, Ld. Counsel for Fateh Chand (A-1) has questioned the CFSL report by placing reliance upon the testimony of V.K Singh (PW-2) who discarded the case of the prosecution that he had identified the voice of Fateh Chand (A-
1) or Naveen Kumar (A-2) during the investigation.
24.10 Ld. Counsel has further disputed the validity of prosecution sanction granted by Ms. Meeta Singh (PW-5). It has been argued that the sanction accorded by PW-5, the then Additional Commissioner, (Education and Health), South MCD is not valid. It has been argued that she was not even aware about the category or group under which Fateh Chand (A-1) was working and as to which category the Additional Commissioner was competent to grant sanction. She was not the competent authority to grant sanction qua Fateh Chand (A-1) who is a Group-B officer. The said sanction could have been only granted by Additional Commissioner. Apart from that, the sanction granted by her is also defective on account of non- application of mind as complete material was never placed before her. She never heard the conversation recorded in the present case.
CBI No.351/2019 Page 38 of 100 3924.11 As far as the tampering of the case property and the seal used in the present either during verification proceedings or trap proceedings is concerned, the same is also doubtful. As per N.K. Verma (PW-3), the seal 138/17 was used which was never produced in the court. Sh. Munish (PW-10) produced the seal in the court but his presence at the spot at the time of trap itself is doubtful as he was unable to depose about the material facts. The said Munish (PW-10) is a planted witness.
24.12 Lastly, it has been argued that the case of the prosecution is based upon the premise that the power of issuance of licence for running the meat shop lies with the office of Zonal Deputy Director as per the Licence Policy Mark PW-2/A. Sh. V.K. Singh (PW-2), Dy. Director, Veterinary Services, SDMC too admitted to the said fact that the final authority for issuance of licence for running the meat shop lies with Deputy Director. Apart from that, as per the Licencing Policy Mark PW-2/A, the application for issuance of fresh licence or renewal of the same has to be submitted with the Centralized Counter and not directly with Veterinary Inspector as has been alleged herein. Therefore, in the said backdrop, there was no reason or occasion for the complainant Mohd Chand (PW-4) to directly submit the file with Fateh Chand (A-1) or he could have received it .The said fact itself demolishes the entire foundation of the case of the prosecution.
24.13 Ld. Counsel for Fateh Chand (A-1) further relied upon the written arguments which are more or less the same as argued CBI No.351/2019 Page 39 of 100 40 orally. The reliance has also been placed upon the following judgments:
(i) Vineet Narain (supra) case. (ii) Neeraj Dutta V. State ( Government of NCT of Delhi), (2023) 4 Supreme Court Cases 731.
(iii) Ram Singh & Ors. V. Col. Ram Singh 1985 (Supp) Supreme Court Cases 611.
(iv) C.B.I V. Ashok Kumar Aggarwal (2014) 14 Supreme Court Cases 295.
(v) Ashish Kumar Dubey V. State Through CBI, ILR (2014) III Delhi 2331.
Arguments on behalf of Naveen Kumar (A-2 )
25. Sh Sidharth, Ld. Counsel for A-2 adopted all the arguments advanced on behalf of Fateh Chand (A-1). The additional arguments advanced on behalf of Naveen Kumar (A-2) are that he too has questioned the locus standi of complainant to file the complaint as licence application has to be submitted by shop owner who is Vineet Kahil (PW-6) herein. There was no authorisation letter in favour of Mohd Chand (PW-
4) executed by Vineet Kahil (PW-6) to do any act on his behalf. Therefore, the lodging of complaint or FIR by Mohd Chand (PW-4) itself is illegal.
25.1 Apart from that A-2 has also questioned his prosecution under the Prevention of Corruption Act, 1988 by arguing that he CBI No.351/2019 Page 40 of 100 41 was a contractual employee at the time of offence and hence, is not covered within the definition of 'Public Servant' under Section 2 (c) of the PC Act. In support of his plea, Ld. Counsel for Naveen Kumar (A-2) has relied upon the judgment viz; A.R Puri V. State 1988 Crl.L.J 311.
Rebuttal Arguments on behalf of CBI.
26. Ld. Sr. Public Prosecutor for CBI in rebuttal firstly addressed the issue of locus standi of the complainant as raised by both Fateh Chand (A-1) and Naveen Kumar (A-2). It is argued that there is no concept of 'locus standi' under the criminal law and every citizen is authorised or rather duty bound to lodge the complaint or file the FIR which discloses the commission of cognizable offence. As far as the authorisation in favour of Mohd Chand (PW-4) is concerned, it was the internal arrangement between him and his owner Vineet Kahil (PW-6) and both of them have deposed regarding the same in the Court.
26.1 On merits, it is argued that the merits of the case of the prosecution has not been touched during the entire trial of both the accused persons. No explanation has been furnished by them either in the cross-examination of material witnesses or during their statement recorded under Section 313 Cr.P.C, as to their false implication as pleaded. They both have baldly claimed that they have been falsely implicated without giving any reasons. Not a single reason has been given by them as to why Mohd Chand (PW-4) or Vineet Kahil (PW-6) who are CBI No.351/2019 Page 41 of 100 42 private persons running the meat shop had given the complaint against Fateh Chand (A-1) and thereafter deposed against both the accused regarding demand and acceptance of bribe. Both accused have failed to rebut the presumption against them u/s 20 of PC Act .
26.2 As far as the contradictions pointed out in the cross- examination of witnesses i.e Inspector N.K. Verma (PW-3), Mohd Chand (PW-4), Vineet Kahil (PW-6), Ankit Dahiya (PW-
8) and Munish (PW-10) are concerned, they are minor in nature and do not go to the root of the case . These minor contradictions do occur due to passage of time or every person having distinct ability to capture the events. The factum of demand and acceptance has been proved through the testimonies of the witnesses as referred above and the said facts are corroborated through the contemporaneous recordings, memory card Ex.Q-1 (Ex.PX8) and Q-2 (Ex.PW8/P3).
26.3 As far as non-following of CBI Manual is concerned, it is inconsequential. Even otherwise, the testimony of Inspector N.K. Verma (PW-3) proves the fact that the complaint was duly recorded by giving number on it and marked to him by the then S.P. concerned as provided in the CBI manual.
26.4 As far as A-2 is concerned , the issue raised by him qua he being the not the public servant is immaterial as he is facing the trial as "Conspirator", acting in pursuance of the conspiracy hatched by A-1 to obtain bribe .
CBI No.351/2019 Page 42 of 100 43Appreciation of Arguments/Analysis of Evidence (I) Sanction for Prosecution of the Accused Persons
27. The first issue which is required to be addressed is the issue of prosecution sanction u/s 19 of PC Act as any defect in it goes to the very root of the case. Both the accused persons have raised the issue of invalidity of the sanction. As far as Fateh Chand (A-1) is concerned, he has questioned the legality of Sanction Ex.PW-5/1 by questioning the competency of Ms. Meeta Singh (PW-5), the then Additional Commissioner, Education & Health. Reliance in this regard has been placed upon the judgment of Hon'ble Supreme Court in case titled CBI V. Ashok Kumar Aggarwal (supra) case.
27.1 It is not in dispute Fateh Chand (A-1) at the time of commission of offence in question was employed with Veterinary Department of SDMC and was working as Veterinary Inspector. Therefore, the prosecution of Fateh Chand (A-1) warranted the mandatory Sanction from the employer i.e SDMC. The sanction qua prosecution under Section 19 of P.C Act has been given by Ms. Meeta Singh (PW-5), the then Additional Commissioner, Education & Health, SDMC . As far as the issue of application of mind for according sanction is concerned, the Sanction Order (Ex.PW-5/1) itself records the reasons and the basis for reaching to the said conclusion. The Sanction Order CBI No.351/2019 Page 43 of 100 44 (Ex.PW-5/1) itself discloses the due application of mind by the Sanctioning Authority. PW-5 accorded the sanction after considering all the material sent by CBI for processing it. The mere non hearing of the recorded conversation is inconsequential as sanction was accorded on 21.08.2017 and transcript of conversation was already prepared and sent with the file .
27.2 The legal ground on which the Sanction has been questioned is the competence of Ms. Meeta Singh (PW-5). The reason for said competency being questioned is the response given by PW-5 in the cross-examination as she was unable to disclose as to whether Fateh Chand (A-1) belonged to Group A, B or C category though she clarified that Fateh Chand (A-1) was not a Group A officer. Further reliance has been placed upon the version of DW-3 Pawan Kumar Jolly. As far as the testimony of PW5 is concerned, A-1 on the aspect of competency to accord Sanction has simply put a bald suggestion to Ms. Meeta Singh (PW-5) without disclosing as to who else apart from Additional Commissioner of SDMC was the competent authority to grant prosecution sanction. No rule or regulation has been placed on record on behalf of A-1 to corroborate his plea of incompetency for grant of sanction by Ms. Meeta Singh (PW-5), the then Additional Commissioner, Education and Health, SDMC.
27.3 Now coming to the version of Pawan Kumar Jolly (DW-
3), Administrative Officer, Civil Centre, who claimed that Additional Commissioner, SDMC was the competent authority to remove Veterinary Inspector from service. Pertinently, his CBI No.351/2019 Page 44 of 100 45 cross-examination is most relevant and it demolishes the argument of A-1 qua the incompetency of PW5 to accord sanction. DW-3 categorically stated that Additional Commissioner who is the competent authority is same as that of Additional Commissioner, Health and Education, which is the case herein. Therefore, it has to be observed that there is no material on record before the Court which puts any question mark over the competency of Ms. Meeta Singh (PW-5) in according the prosecution sanction and the claim of the then Additional Commissioner of SDMC being competent to remove Fateh Chand (A-1) from service has to be taken as true and correct. The judgment Ashok Aggarwal ( Supra ) is not applicable herein .
27.4 As far as Naveen Kumar (A-2) is concerned, he raised the legal issue with respect to his prosecution under the P.C Act as he was only a contractual employee by placing reliance upon the judgment in A.R Puri V. State (supra) case.
27.5 There is no dispute with respect to nature of employment of Naveen Kumar (A-2). He was a contractual employee being initially appointed as 'Cattle Catcher' for period of about five months through appointment order Mark PW-7/D-8 dated 18.08.2008. The said contract continued on yearly renewal basis and was ultimately terminated on 15.06.2017 through letter mark PW-7/E. So, the status of Naveen Kumar (A-2) as on date of offence was that of a "contractual employee" only. But the core issue to be seen is the case of prosecution against A-2 and CBI No.351/2019 Page 45 of 100 46 charges levelled against him. Naveen Kumar (A-2) in the present case is not prosecuted as a "public servant" who demanded and accepted the bribe, but rather as a conspirator acting in conspiracy with Fateh Chand (A-1), the Veterinary Inspector, SDMC, Green Park, New Delhi. In pursuance of said conspiracy only and as per the directions of Fateh Chand (A-1), he accepted the bribe on his behalf. The charge framed against him by the Ld. Predecessor on 28.03.2018 reflects that he is being prosecuted as 'Conspirator'. There is no substantive charge against Naveen Kumar (A-2) for the offence under Section 13(1)(d) r/w 13 (2) of PC Act .Therefore the argument of A-2 on the said aspect is liable to be rejected .
(II) Demand of Bribe
28. It is well settled position of law that in a case under Section 7 and 13 (1) (d) read with 13 (2) of P.C Act "demand of bribe" and acceptance of bribe are sine-quo-non. The said legal requirement has been discussed in the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh (2015) 10 SCC 152 and the Hon'ble Supreme Court summarised the well-settled law on the subject which reads as under:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d) (i) and(li) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the CBI No.351/2019 Page 46 of 100 47 amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder."
28.1 Recently the Constitutional Bench of Hon'ble Supreme Court explained about the essential ingredients of an offence under Section 7 and Section 13(1)(d) of P.C. Act in Neeraj Dutta v. State (Govt. of NCT of Delhi) 2022 SCC OnLine SC 1724, as under:
"4. The following are the ingredients of Section 7 of the Act:
i) the accused must be a public servant or expecting to be a public servant;
ii) he should accept or obtain or agrees to accept or attempts to obtain from any person;
iii) for himself or for any other person;
iv) any gratification other than legal remuneration;
v) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour.
5. Section 13(1)(d) of the Act has the following ingredients which have to be proved before bringing home the guilt of a public servant, namely, -
(i) the accused must be a public servant;
(ii) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
iii) to make out an offence under Section 13(1)(d), there is no requirement that the valuable thing or pecuniary advantage should have been received as a motive or reward.
iv) an agreement to accept or an attempt to obtain does not fall within Section 13(1)(d).
v) mere acceptance of any valuable thing or pecuniary advantage is not an offence under this provision.
vi) therefore, to make out an offence under this provision, there has to be actual obtainment.
CBI No.351/2019 Page 47 of 100 48vii) since the legislature has used two different expressions namely "obtains" or "accepts", the difference between these two must be noted..."
28.2. Thus in view of the said settled legal position the first aspect of demand of bribe needs to be discussed. The prosecution in order to prove the factum of demand of bribe has primarily placed reliance upon the testimonies of Inspector N.K. Verma (PW-3) the Verifying Officer, complainant Mohd Chand (PW-4) and independent witness Ankit Dahiya (PW-8). It is the case of the prosecution that on 1 st of May 2017, complaint Ex.PW-4/1 was received at their office from Mohd Chand (PW-
4) who alleged that he is running a meat shop M/s Qutab Halal Meat at Mehrauli which is owned by Vineet Kahil (PW-6). The owner being on the bed rest due to some eye-operation at Chandigarh asked PW-4 to get the meat shop licence renewed from SDMC office. The earlier licence of the shop expired on 31st of March 2017. Accordingly, on the directions of his owner Vineet Kahil (PW-6), Mohd Chand (PW-4) took the renewal application file to SDMC office in the last week of April 2017 and met Fateh Chand (A-1) who was working as Veterinary Inspector. A demand of bribe of Rs.8000/- was made apart from Rs.2410 as renewal fees, which led to the filing of the complaint Ex.PW-4/1. The said complaint was accordingly acted upon by verifying it which led to the registration of the FIR Ex.PW-12/1 dated 2nd of May 2017. But before discussing the said fact of demand, the other legal aspects as argued concerning the lodging of the present case needs to be discussed firstly .
CBI No.351/2019 Page 48 of 100 49Locus Standi of Complainant Mohd Chand (PW-4).
29. The first legal issue raised on behalf of accused persons is the locus standi of complainant Mohd Chand (PW-4) to submit the renewal application on behalf of his owner (PW-6) or thereafter lodge the complaint (Ex.PW-4/1) with CBI. No doubt, there was no written authority in favour of Mohd Chand (PW-4) for moving of the application for renewal of the licence or subsequent complaint (Ex.PW-4/1) with CBI, but the fact in issue to be seen herein is as to whether said lack of written authority prevented Mohd Chand (PW-4) from submitting the application for renewal of licence for running the meat shop with SDMC or not. Secondly whether he acted on his own without taking any instructions from his owner .
29.1 Mohd Chand (PW-4) while deposing in the Court has in clear terms deposed that he was employed by owner of the shop Vineet Kahil (PW-6) to run the meat shop M/s Qutub Halal Meat. He was running the said shop since February 2017. Due to medical condition of owner of the shop Vineet Kahil (PW-6), he directed complainant (PW-4) to approach A-1 for renewal of meat licence of the shop. The said aspect has also been reiterated by Vineet Kahil (PW-6) while deposing in the Court. There is no rebuttal on the said crucial aspect in the cross- examination of both Mohd Chand (PW-4) as well as Vineet Kahil (PW-6). Sh. Vineet Kahil (PW-6) rather in his cross- examination deposed that there was no written document available with him qua the terms of employment of Mohd Chand (PW-4) and he had orally instructed PW-4 to do certain work on CBI No.351/2019 Page 49 of 100 50 his behalf. Vineet Kahil (PW-6) further elaborated on the said aspect by deposing as under :
"I did not personally visit the office of SDMC for renewal of my meat shop license as I was out of Delhi at that time and the presence of meat owner is not required for renewal of license. I had filled up the renewal license form of my meat shop. I do not recollect as to which place I filled up the renewal license form for renewal of my meat shop. Probably, I had filled up the renewal license form for my meat shop in Delhi itself. I had filled up the renewal license form prior to submission of the said form in the SDMC office, however, I do not recollect as to how many days prior I had filled up the said form. I had handed the filled up renewal license form to Mohd Chand at my meat shop."
29.2 There is not even a bald suggestion to Vineet Kahil (PW-
6) denying the above aspect of authorizing Mohd Chand (PW-4) to submit renewal application form or Vineet Kahil (PW-6) having directed him (PW-4) to approach A-1 with the application or lastly Mohd Chand (PW-4) working in his shop at the relevant point of time.
29.3 Mohd Chand (PW-4) too deposed that he was authorised to run meat shop and submit the renewal application form to Fateh Chand (A-1), who was working as Veterinary Inspector, SDMC, Green Park, New Delhi. PW-4 further in the cross- examination corroborated the version of his shop owner (PW-6) by deposing that the form for renewal of license was filled up by Vineet Kahil (PW-6) only and the said form was filled up at the shop itself one week prior to its submission. Again, surprisingly there is not even a bald suggestion on behalf of the accused denying the status of employment of Mohd Chand (PW-4) with Vineet Kahil (PW-6) or he (PW-4) being authorised by Vineet CBI No.351/2019 Page 50 of 100 51 Kahil (PW-6) to submit renewal license application form or lastly he (PW-4) being asked to directly approach A-1 in this regard.
29.4 Apart from the said aspect, the other crucial issue to be seen herein is as to whether rules framed by SDMC in this regard prevented the submission of license renewal application by Mohd Chand (PW-4) or not. The prosecution has proved on record the revised policy for grant of licence to meat shop Mark PW-2/A dated 24.05.2013, which is not challenged. The said document prescribes all the requisite conditions which applicant seeking license has to fulfill. It also lays down the procedure which has to be followed both at the time of issuance of fresh license or its renewal. The said policy document (Mark.PW- 2/A) does not in any manner puts any condition that such application for renewal of license has to be submitted by the applicant in person only. Further the best witness to depose about the same was PW2 Dr. VK Singh Dy. Director, Veterinary Services, SDMC . But he was never questioned on the aspect of submission of file. Therefore, in the said backdrop, the argument raised on behalf of accused persons questioning the authority of Mohd Chand (PW-4) qua the submission of license renewal application is without any basis.
29.5 The second part of the said submission is qua lodging of complaint ( Ex. PW-4/1) by Mohd Chand (PW-4) alleging demand of bribe qua renewal of license in the name of Vineet Kahil (PW-6). As far as the issue of locus standi of complainant CBI No.351/2019 Page 51 of 100 52 to lodge the complaint reporting the allegations of demand of bribe is concerned, it is well settled position of law that there is no such concept of locus standi in the criminal law. Any person can report about the commission of cognizable offence to the police. The police is duty bound to register the FIR if the complaint discloses cognizable offence which is the case herein. Even the police is not authorised to question the locus standi of complainant reporting the commission of cognizable offence. The objection raised qua the contents of the FIR is also without any basis. The annexures to the FIR are not created documents. All the said documents form part of the application submitted by PW-4 with A-1 and later on recovered from his office on 2nd of May 2017.
Non -Following of CBI Manual 29.6 The second legal aspect raised on behalf of accused qua the lodging of the complaint (Ex.PW-4/1) by complainant Mohd Chand (PW-4) is non-following of CBI Manual. It has been argued by placing reliance on judgment in Vineet Narain (supra) case that no complaint number or date has been mentioned on the complaint (Ex.PW-4/1). There is no name or designation of the officer who has put the endorsement in favour of Inspector N.K. Verma (PW-3). The complaint is undated one. In the said backdrop, the defence has been denied the opportunity to question the said aspect. It also leads to the assumption of manipulation of documents.
CBI No.351/2019 Page 52 of 100 5329.7 To appreciate the said contention on behalf of accused, the first aspect to be looked into is the complaint (Ex.PW-4/1) and the contents thereof. No doubt, no date on the said complaint has been mentioned by the complainant Mohd Chand (PW-4), but the issue to be seen as to whether the said non-mentioning of the complaint renders the same to be defective. The answer lies in 'Negative'. The said issue has also be seen in the light of all the attending circumstances including the endorsement on the same vide Portion "X". The said endorsement has been proved by Inspector N.K. Verma (PW-3) who deposed that the said complaint after being received by the S.P, CBI, ACB, New Delhi was endorsed in his favour on 1 st of May 2017. PW-3 further in his cross-examination elaborated on the said aspect by deposing that the File Number C.O 138/2017 was already opened vide which the said complaint was marked to him for verification. The complaint marked to him was accompanied with certain documents which were also handed over to him. PW-3 received the complaint in the file which was given to him by the Superintendent of Police (SP). On all the said three aspects concerning the lodging of complaint, it being given the complaint number and lastly it being marked to him by the S.P on 1.05.2017, there is no denial on behalf of accused in the cross examination. Mohd Chand (PW-4) too has corroborated on the said aspect by deposing that he went to the CBI office on 1st May, 2017 and narrated entire facts to Inspector N.K. Verma (PW-3). Firstly, he had approached the S.P office and the S.P directed Inspector N.K. Verma (PW-3) for verification of his complaint. He further elaborated that he lodged the complaint CBI No.351/2019 Page 53 of 100 54 on 1st of May 2017 with the S.P, CBI which was marked to Inspector N.K. Verma (PW-3) for verification. Again his version too has not been put in the dock in the cross-examination.
29.8 The said issue of complaint being given number and the file in this regard being opened is also corroborated by the verification report/memo Ex.PW-4/2. It has been specifically mentioned that it is in C.O.-138/2017. Even the recorded conversation in Q-1 (Ex.PX8) which was sealed in envelope too has the same File Number i.e CO-138/2017.
29.9 Therefore, in view of the consistent testimonies of Inspector N.K. Verma (PW-3) and Mohd Chand (PW-4), both prove the lodging of the complaint on 1 st of May 2017 by Mohd Chand (PW-4) and secondly File No. CO 138/17 being given to the said complaint. Thereafter it was marked to Inspector N.K. Verma (PW-3) by the S.P concerned for verification. It is not the case of CBI that apart from the complaint or the annexures any other document formed part of it which has not been filed on record. Therefore, the said two facts do not in any manner reflect the violation of CBI Manual Rule 8.1 of Chapter-8 as has been argued on behalf of the accused persons.
30. Now, coming to the merits on the aspect of demand of bribe, the prosecution in this regard has placed reliance upon the oral testimonies of Inspector N.K. Verma (PW-3), Verifying Officer, Mohd Chand (PW-4), the complainant and Ankit Dahiya (PW-8), the independent witness. Apart from that the CBI No.351/2019 Page 54 of 100 55 reliance has also been placed upon complaint Ex.PW-4/1, Verification Memo Ex.PW-4/2 dated 01.05.2017 and FIR Ex.PW-12/1.
30.1 Besides it, the other piece of corroborating evidence relied upon by the prosecution for proving the demand of bribe by Fateh Chand (A-1) is the recorded conversation of 1 st of May 2017 in Q-1 ( Ex.PX8). It is not in dispute that the complainant Mohd Chand (PW-4) who was running the shop in the name and style of M/s Qutub Halal Meat at Mehruali, New Delhi, under the employment of Vineet Kahil (PW-6), had approached Fateh Chand (A-1) directly with the application for renewal of shop's license. The validity of the previous license expired on 31.03.2017. The prosecution in this regard has placed on record the entire file seized from the office of Fateh Chand (A-1) Ex.PW-6/1 (collectively) Part of D-5). The said file is concerning the shop run by Mohd Chand (PW-4) and Vineet Kahil (PW-6) only and has all the documents i.e fresh application for renewal of licence Ex.PW-6/1 alongwith its annexures, notings and documents etc. The recovery of the said file from the room of A-1 is not disputed. The said file also contains the previous application alongwith annexures for the year 2016 for grant of regular license, which was processed on 9th May 2016 and was finally approved on 17 th May 2016. The said earlier proposal too was processed by A-1 being the Veterinary Inspector, South Zone. So, after the expiry of said previous license on 31st March 2017, Mohd Chand (PW-4) and Vineet Kahil (PW-6) were under the legal obligation to apply for CBI No.351/2019 Page 55 of 100 56 renewal of the license with SDMC. In the said backdrop only, PW6 asked Mohd Chand (PW-4) to directly approach Fateh Chand (A-1) with the file .
30.2 As per the policy mark PW-2/A dated 24.05.2013, the Rules prescribed that each licence, unless cancelled, shall remain valid from the date on which it was issued to 31 st March of that year. It has to be renewed annually on or before April of each year. However, Rules further provided a grace period of three months beginning from 1st of April till 30 th June each year. The said Rules also stipulates renewal fees of Rs.1200/- and late fee of Rs.1000/- of each subsequent month. The processing fee for grant or renewal was fixed at Rs.250/-. Vide subsequent guidelines Mark PW-2/B dated 30.11.2015, the processing fees was enhanced to Rs.300/- and renewal fee to Rs.2400/-. The late fees was enhanced to Rs.1200/- for each subsequent month after the expiry of grace period of one month. The grace period was thus reduced from three months to one month. The said revised policy came into force with immediate effect. So, the said subsequent policy Mark PW2/B obligated every meat shop owner to apply for renewal of the licence within one month grace period after its expiry which in the present case was April- 2017. The prescribed fee which the shop-owner Vineet Kahil (PW-6) was under the obligation to pay was firstly Rs.300/- as processing fee and in case his application for renewal was accepted, he was supposed to pay Rs.2400/- as renewal fee. The late fee was to be paid as per the schedule. So, in terms of the said legal obligation, Vineet Kahil(PW-6) authorised Mohd CBI No.351/2019 Page 56 of 100 57 Chand (PW-4) who was running the shop in his absence to directly approach A-1.
30.3 On the said aspect itself, a big question mark has been raised on behalf of accused persons by arguing that as per the revised policy and as deposed by V.K. Singh (PW-2), Dy. Director, Veterinary Services, SDMC, every application for renewal has to be submitted at the Centralized Counter, not directly with the Veterinary Inspector as is the case of CBI. There is no doubt that the said procedure has been explained by Dr. V.K. Singh (PW-2), the then Dy. Director, Veterinary Services, SDMC. Firstly, as per the procedure the documents alongwith requisite fees of Rs.300 has to be deposited at CSB Counter. Thereafter, the CSB sends the file to concerned department and the concerned department sends the file to Veterinary Inspector. No file can, thus, be directly submitted with the Veterinary Inspector. Therefore, the issue herein is the reasons which prompted Mohd Chand (PW-4) and Vineet Kahil (PW-6) to directly approach Fateh Chand (A-1) in submission of the file or they have deposed falsely in this regard.
31. Before appreciating their testimonies on the said aspect, the role which is played by a Veterinary Inspector in the entire process either for the issuance of fresh license of meat shop or its renewal has to be appreciated. V.K. Singh (PW-2), the then Dy. Director, Veterinary Services, SDMC, deposed that Zonal Deputy Director is the Competent Final Authority for approval of license and Veterinary Inspector conducts the inspection of CBI No.351/2019 Page 57 of 100 58 the meat shop for purposes of renewal of the license. Therefore, the main role is that of Veterinary Inspector and it is also reflected from the record. The file of the previous year 2016- 2017 concerning Vineet Kahil (PW-6) Ex.PW-8/P-14 (D-5) also reflects the most crucial role played by Veterinary Inspector in the entire process. The note-sheet Ex.PW-2/1 dated 9 th of May 2016 reflects that the previous license application was processed right from the beginning by Fateh Chand (A-1) only. He processed the entire application and even personally inspected the shop on 6th of May 2016. On the basis of scrutiny of documents and his personal inspection, he (A-1) made the following recommendations:
"It is further submitted that the applicant Shri VANEET KAHIL S/o Shri JOGINDER RAM KAHIL fulfills all requirements as laid down in the Meat shop license policy approved by the SDMC vide Resolution No. 245 dated 25.03.2013.
It is accordingly proposed that a license for selling the meat of MUTTON & CHICKEN (Halal) in the name and style of QUTUB HALAL MEAT SHOP at shop No. 1073/A, WARD NO.1, MEHRAULI, NEW DELHI may be granted to Shri VANET KAHIL S/o Shri JOGINDER RAM KAHIL. The applicant would submit the required fee after sanction of his license."
31.1 So, it is apparent that it is the Veterinary Inspector only who has primary duty of processing, scrutinizing the documents and seeing as to whether the same is as per the policy of SDMC. It the Veterinary Inspector only who personally visits and inspects the premises to see fulfillment of the requirements and thereafter make his recommendations for approval or rejection of the application. The remaining authorities merely scrutinize the proposal without effectively having much say on the said CBI No.351/2019 Page 58 of 100 59 proposal. It is also apparent that the only direct contact of the applicant in the said entire hierarchy of the officers of Veterinary Department is Veterinary Inspector only. The remaining authorities never used to have any occasion for interaction with the applicant in the entire process.
31.2 Therefore, in the said backdrop, the justification given by Mohd Chand (PW-4) and Vineet Kahil (PW-6) of directly approaching Fateh Chand (A-1) with their application for renewal appears to be reasonable conduct. Even otherwise, if for the sake arguments it is believed that the said submission of application directly with Fateh Chand (A-1) was not as per the prescribed procedure of SDMC, then what prevented Fateh Chand (A-1) in directing Mohd Chand (PW-4) to approach the Centralized Counter. Rather, he was duty-bound to do so for which no explanation has been given in the entire trial. The said incriminating circumstance of directly accepting the file Ex. PW-6/1 without it being routed through Centralized Counter or having the processing fee rather goes against accused (A-1) and shows his malafide conduct.
Presence of Fateh Chand (A-1) and Mohd Chand (PW-4) at the Spot
32. The next crucial issue vis-a-vis the aspect of demand of bribe by Fateh Chand (A-1) is the presence of the accused at his office on the alleged day of demand i.e 1st of May 2017. The prosecution in the regard has placed reliance upon the attendance CBI No.351/2019 Page 59 of 100 60 register proved by Dr. Maninder Preet Singh Sodhi (PW-7), Dy. Director, South Zone, SDMC, Green Park. Apart from proving the relevant documents concerning the policy governing the issuance of meat license to the shops selling the said items, PW- 7 has also proved on record the documents concerning the employment details as well as attendance of both Fateh Chand (A-1) and Naveen Kumar (A-2). As the certified copies of the said documents were proved by him and he was also asked to produce the original of the same during his cross-examination. He produced the original record of attendance on 29 th November 2018 and proved the same as Ex. PW7/DX-4. As far as the authenticity of other documents i.e office order dated 18.12.2015 Mark PW-7/A which reflects Fateh Chand (A-1) working at the Health Department being also directed to work as Veterinary Inspector, South Zone, is also not disputed. The said order was thereafter modified vide order dated 23.12.2015 Mark PW-7/B whereby he was given complete charge of the Veterinary Department of South Zone.
32.1 Lastly, the reliance is placed upon the Attendance Register of Health Department Mark PW-7/G ( later on exhibited as PW-7/DX4) for the month of May 2017 qua Fateh Chand (A-1). A-1 recorded his attendance as well as departure on 1 st of May 2017 when the alleged demand of bribe was made. A-1 marked his presence on the arrival column of 2nd of May 2017 when the trap was laid. Similarly, the attendance of Naveen Kumar (A-2) for the month of May 2017 is proved through Mark PW-7/H. Thus, the said two unrebutted and unchallenged CBI No.351/2019 Page 60 of 100 61 documents concerning the attendance and presence of Fateh Chand (A-1) and Naveen Kumar (A-2) at their office i.e SDMC, Green Park, New Delhi on 1st of May 2017 and 2nd of May 2017, proves on record their presence at the spot. It also proves on record the first limb of story of prosecution regarding complainant Mohd Chand (PW-4) having approached Fateh Chand (A-1) during verification at his office qua his application for renewal of license on 1 st of May 2017. The attendance record of month of April also proves the attendance and his presence in the office on 27th April when PW4 for the first time approached him.
32.2 Now, coming to the issue of presence of complainant Mohd Chand (PW-4) and Ankit Dahiya (PW-8) at CBI office on 1st and 2nd May 2017. The defence has proved on record the gate register of CBI as Ex.DW-1/A ( collectively) wherein no entry of PW-4 and PW-8 is recorded on 1st and 2nd May 2017 which creates doubt as to their presence. The testimony of DW-1 itself clarifies about non-recording of entries and deposed that it is not mandatory to record entries of all the visitors. It appears that the object behind not recording of entries of all the visitors at CBI office is to maintain secrecy and to prevent leakage of information in cases of trap etc. In the present case too, it appears with the said object only, the entries of PW-4, PW-8, PW-6 and PW-10 were not recorded on 1 st and 2nd May 2017 as the trap was yet to be led.
CBI No.351/2019 Page 61 of 100 62Clear and Categorical Demand of Bribe by A-1
33. The last aspect concerning the demand of bribe by Fateh Chand (A-1) for performing his duty of processing the license renewal application of Mohd Chand (PW-4) is whether there was clear and categorical demand of bribe or not. Ld. Counsel for Fateh Chand (A-1) has disputed the very fact by arguing that there is no categorical, unambiguous and clear demand of bribe during the verification proceedings or in the recorded conversation. Even testimonies of witnesses i.e Mohd Chand (PW-4) and Ankit Dahiya (PW-8) as well as complaint Ex.PW- 4/1 shows the ambiguity qua the exact demand of bribe which strikes at the very root of the prosecution case.
33.1 That while appreciating the fact of said demand of bribe and the exact amount being demanded by Fateh Chand (A-1) from Mohd Chand (PW-4), the sequence of events needs to be appreciated so as to reach to any conclusion. It has been proved on record through the version of Mohd Chand (PW-4) and his complaint Ex.PW-4/1 that he, for the first time, approached Fateh Chand (A-1) in the last week of April-2017 with his application for renewal of application alongwith necessary annexures Ex.PW-6/1 ( collectively) on behalf his owner Vineet Kahil (PW-6). The earlier license qua running of the shop had expired on 31st of March 2017. It has already been discussed that the policy Mark PW-2/A and the revised policy Ex.PW- 7/DX2 provided a grace period of one month beginning from 1 st CBI No.351/2019 Page 62 of 100 63 of April to 30th of April of that year. So, Mohd Chand (PW-4) had approached the office of Fateh Chand (A-1) within the stipulated time by moving the application Ex.PW-6/1 for renewal of the license.
33.2 During the first meeting itself, the demand of bribe of Rs.8000/- was raised apart from Rs.2410/- being the renewal fees as is pleaded in his complaint Ex.PW-4/1. A total of around Rs. 12000/- was the payment demanded which included bribe as well as other official charges. Mohd Chand (PW-4) reiterated the said fact while deposing in the court by stating that during the first interaction, the demand of Rs.10,000/- Rs.12,000/- was made. Out of which Rs. 4400 /4500 was stated to be late fees for renewal. He specifically inquired from Fateh Chand (A-1) regarding the remaining/rest of the amount to which he replied that he (PW-4) must be aware about the remaining amount. As the owner (PW-6) of PW-4 was not ready to pay the bribe amount, PW-4 approached the CBI office and filed the complaint on 1st of May 2017 which led to the registration of the FIR in the present case. Vineet Kahil (PW-6) too has corroborated him on the said aspect. As far as the contradiction qua the renewal fee amount is concerned, it is minor contradiction only which appears to be due to lapse of time. PW-4 has deposed about the said fees which was stated to him during second interaction. So, the late fee of Rs. 4400/4500 is not a new fact.
33.3 During the verification proceedings, PW-4 deposed that when he approached Fateh Chand (A-1), again A-1 insisted to CBI No.351/2019 Page 63 of 100 64 pay bribe of Rs.10,000/- and on his persuasion, Fateh Chand (A-
1) agreed to waive off Rs.2000/-, but he insisted on payment of bribe of Rs.8000/-. So, the testimony of Mohd Chand (PW-4) as well as his complaint Ex.PW-4/1 points out towards a concrete figure of bribe to be Rs.8000/-. Ankit Dahiya (PW-8) who acted as a shadow witness when Mohd Chand (PW-4) approached Fateh Chand (A-1) on 1 st of May 2017 too has corroborated on the said aspect. He too deposed that apart from the license fees of Rs. 4400/-, an additional amount of Rs.8000/- was required which cannot be reduced as was claimed by A-1. So as far as the aspect of demand of bribe, there is consistent version of Mohd Chand (PW-4) and Ankit Dahiya (PW-8) and the said demand is Rs.8000/-.
33.4 Further, the issue of difference in the remaining amount concerning renewal fees as deposed by Mohd Chand (PW-4) in the court and vis-a-vis in his complaint Ex.PW-4/1 has to be seen in light of stipulated renewal fees as provided in document Mark PW-2/B dated 30.11.2015. It stipulates that renewal fees is to be Rs.2400/- and late fees being Rs.1200/- for each subsequent month after expiry of grace period of one month. So rightly so, at the time of first interaction between Mohd Chand (PW-4) and Fateh Chand (A-1), the renewal fees was stated to be Rs.2410/-, as at that point of time, the grace period was not yet over. The second interaction during the verification took place on 1st of May 2017, when the grace period was already over and accordingly Rs.1200/- late fee for each month was to be charged. Hence, the said figure of Rs.4400/- came into light as has been CBI No.351/2019 Page 64 of 100 65 deposed by Mohd Chand (PW-4) and Ankit Dahiya (PW-8). The recorded conversation too shows lack of clarity with A-1 as to exact late fee and therefore, the variance is there in the figure. Therefore, the argument advanced on behalf of accused persons that there is no clarity with respect to the demand of bribe and it being ambiguous is against the record.
33.5 On the said aspect of demand of bribe, both Mohd Chand (PW-4) and Ankit Dahiya (PW-8) have stuck to their version in the cross-examination and there is nothing in the entire cross- examination which puts any question mark over their said part of their testimony. Apart from minor contradictions with respect to the timings when they proceeded for verification or the sequence in which DVR used for recording the conversation was put on switched on mode or taken back, there is no material contradiction affecting their testimonies. Thus, it has to be held that their testimonies on said aspect are trustworthy and reliable.
Recorded Conversation of Parties & Custody of Seal
34. Apart from the oral testimonies of Mohd Chand (PW-4) Ankit Dahiya (PW-8), Verifying Officer Inspector N.K. Verma (PW-3) on the aspect of demand of bribe by Fateh Chand (A-1) , is the recorded conversation between Mohd Chand (PW-4) and A-1. As has already been discussed during the verification proceedings, Inspector N.K. Verma (PW-3) arranged for a DVR and one new 8 GB memory card from the branch. Apart from that, the brass seal was also arranged by him. After putting said CBI No.351/2019 Page 65 of 100 66 new memory card in the DVR, it was put in the left hand side pocket of Mohd Chand (PW-4) with switched on mode when they went inside the office of Fateh Chand (A-1) at around 17:20 hours. They returned back at about 17:40 hours and the DVR was switched off. Thereafter, the conversation was heard by him and memory card was taken out and sealed which has been given marking as Q-1 ( Ex.PX-8). The seal as well as DVR after use was handed over to independent witness Ankit Dahiya (PW-8) with the directions to produce the same on the next day. 34.1 Ld. Counsel for accused has questioned the veracity of said recorded conversation by arguing that the handing over the seal to Ankit Dahiya (PW-8) is doubtful. Apart from that, the seal i.e 138/2017 as deposed by Inspector N.K. Verma (PW-3) was never produced in the court. The first aspect is the identity of the seal used in the present case. It is the same seal which has been used right from the beginning i.e verification proceedings till completion of the trap proceedings. The documents proved on record carries the seal impression i.e 138/2016. Therefore, the documents on record clarify that the actually one seal was used in the entire case which is 138/2016 and not 138/2017 as has been deposed by Inspector N.K. Verma (PW-3) which appears to be only a error due to lapse of time. Therefore, there was no question of production of seal 138/2017. The seal 138/2016 was produced in the court by Munish (PW-10) with whom it remained in custody after the completion of trap proceedings .
34.2 The next aspect to be considered is the custody of the seal CBI No.351/2019 Page 66 of 100 67 after verification proceedings. It is the case of prosecution that the same was handed over of Ankit Dahiya (PW-8) who was the independent witness after sealing memory card Q-1 (Ex.PX-8). The seal was handed over to him after the conclusion of verification proceedings. But Ankit Dahiya (PW-8) remained silent on the said aspect while deposing in court. He was also not cross-examined on the said aspect on behalf of accused or by prosecution. But the issue to be seen is as to whether the said omission on his part to depose about the custody of the seal puts any question mark over the case of the prosecution or not. The said omission alone cannot be seen in isolation. The entire remaining evidence produced by the prosecution which includes the testimonies of other witnesses as well as documents reflect it otherwise and proves the handing over of the same to PW8. The first document is the verification report Ex.PW-4/2 dated 1 st of May 2017 which has the receiving of seal and DVR of PW-8 at point 'E'. Ankit Dahiya (PW-8) admitted the said endorsement as well as signatures encircled at point "E". Therefore, the said admission of signatures at Point E proves that he had received seal and DVR from Inspector N.K. Verma (PW-
3) after being used on 1st of May 2017. Similarly, Inspector N.K. Verma (PW-3) also deposed that after conclusion of verification proceedings, seal and DVR were handed to Ankit Dahiya (PW-8) with the directions to produce the same on the next day. Similar is the testimony of TLO Inspector Ramesh Kumar (PW-12) who too deposed on the said aspect as under:
"Sh. Ankit Dahiya produced the DVR and CBI brass seal, which were handed over to him during the verification of the complaint by Inspector N.K. Verma."CBI No.351/2019 Page 67 of 100 68
34.3 As far as the cross-examination of TLO Inspector Ramesh Kumar (PW-12) on the said specific aspect is concerned, not a single question was put to him. Even a bald suggestion denying the said fact of having received back DVR and brass seal from Ankit Dahiya (PW-8) was put. The testimony of PW-3 too has not been put in dock specifically on the said aspect. Thus, oral testimonies of Inspector N.K. Verma (PW-3) , Ankit Dahiya (PW-
8) and TLO Inspector Ramesh Kumar (PW-12) as well as endorsement on verification report Ex.PW-4/2 proves the fact of handing over of the seal as well as DVR after the use and verification proceedings to independent witness Ankit Dahiya (PW-8). Therefore, the issue of misuse of the seal after the use consequent to the sealing of recorded conversation Q-1 ( Ex. PX-8) is ruled out.
Recorded Conversation and its Value
35. The next aspect argued on the said issue concerning veracity of recorded conversation is the non-production of seal impressions taken by Inspector N.K. Verma (PW-3) or TLO Inspector Ramesh Kumar (PW-12). On the said aspect, as has rightly been argued by the CBI that the said specimen seal impressions are meant for the CFSL and were duly forwarded to the Lab as is reflected from the record.
35.1 The recorded conversation in the present case i.e Q-1 ( Ex.PX-8 ) as well as Q-2 ( Ex. PW-8/P3) (conversation at the time of trap on 2nd of May 2017) alongwith specimen voice were CBI No.351/2019 Page 68 of 100 69 forwarded to CFSL through forwarding letter Ex.PW-9/1 dated 15.05.2017. The request was made vide the said forwarding letter for preparing five copies of each memory card for purposes of preparing the transcripts. Apart from sending the said Exhibits i.e Q-1 ( Ex.PX-8 ) and Q-2 ( Ex. PW-8/P3) the specimen voices and the specimen seal impressions too were enclosed. The said act of preparing the copies of the recorded conversation as well as specimen has been done by Sh. A.D Tiwari (PW-9), Senior Scientific Officer (Photo Division) CFSL. Again, there is no cross-examination on the aspect of any tampering of the seals at the time of receipt of Q-1 and Q-2 by him or the seals not tallying with specimen seal impressions sent to their office. Thus, the said material piece of evidence which is not disputed or challenged on behalf of the accused persons proves the authenticity of sealed parcel having recorded conversation Q-1 (Ex.PX-8). In these circumstances, it has to be observed that the objection raised by Fateh Chand (A-1) qua the admissibility of recorded conversation in Q-1 ( Ex.PX-8 ) and Q-2 ( Ex. PW-8/P3) is without any basis. Further, the said sealed packet containing Q-1 (PX-8) remained in the custody of Inspector N.K. Verma (PW-3) till 2 nd of May 2017 when he handed over the said parcel alongwith other record to the S.P concerned. There is no question of any tampering during the said interim period as custody of seal was with the independent witness Ankit Dahiya (PW-8) and there is no cross-examination of he having allowed the misuse of the seal.
35.2 Now the issue to be seen is as to whether the recorded CBI No.351/2019 Page 69 of 100 70 conversation corroborates the oral testimonies of PW-4 and PW- 8 or not. As far as the identification of speaker in recorded conversation Q-1 (Ex.PX-8) is concerned, the prosecution apart from relying upon the scientific evidence of forensic expert of Dr. Subrat Kumar Choudhury (PW-11), has also placed reliance on testimonies of Mohd Chand (PW-4) and Ankit Dahiya (PW-8). PW-11 Dr. Subrat Kumar Choudhury examined the recorded conversation Q-1 (Ex.PX-8) as well as Q-2 (Ex.PW-8/P3) with the specimen S-1 and S-2. He found the speaker in Q-1 (Ex.PX-8) and Q-2 (Ex.PW-8/P3) to be tallying with specimen voice of Fateh Chand (A-1) and Naveen Kumar (A-2). Ld. Counsel for accused has questioned the report of said expert by arguing that CFSL ,CBI is not a Notified Lab under Section 79A of Information Technology Act. The said objection on the face of it appears to be misinterpretation of object behind incorporation of Section 79A of Information Technology Act. The said notification is not the mandatory requirement for providing expert opinion on electronic evidence. It is only an optional certification which any body, agency or department of Centre or State Government examining the electronic evidence to apply for. It only adds a kind of additional certification and feather in their cap. The absence of said certification does not render the said lab to be incompetent in examining the electronic evidence as seems to be the argument of Ld. Counsel for the accused.
35.3 As far as remaining cross-examination of Dr. Subrat Kumar Choudhury (PW-11) is concerned, it is concerning the CBI No.351/2019 Page 70 of 100 71 method or the technique used by him for reaching to his report Ex.PW-11/A. There is no question mark raised over the expertise of PW-11 or the method used by him in reaching to the conclusion. Therefore, in these circumstances, there is no reason to discard the report of PW-11 Ex.PW-11/A concerning identification of voices of Fateh Chand (A-1) and Naveen Kumar (A-2) in questioned recordings i.e Q-1 (Ex.PX-8) and Q-2 (Ex.PW-8/P3). The report Ex. PW-11/A further rules out the possibility of tampering etc. in the recorded conversation and also opines that it may have recorded using the DVR (Ex.PX12). The detailed opinion of PW-11 will be discussed later on while dealing with recordings in Q-2 which is the conversation recorded during trap proceedings.
36. Apart from that, the identification of the voices has also been done by Mohd Chand (PW-4) who had long conversation with Fateh Chand (A-1) on three occasions i.e 27 th of April 2017, 1st of May 2017 and lastly on 2 nd of May 2017 when the trap was laid. He proved the voice identification memo Ex.PW-4/5 in the Court. As far as cross-examination on the said aspect is concerned, again no question mark has been raised over identification of the voice of the speaker by him during the investigation.
36.1 Ankit Dahiya (PW-8) also identified the voice of complainant (PW-4) as well as Fateh Chand (A-1) in memory card Q-1 in the Court. He also identified the voice of complainant (PW-4) as both the accused persons in Q-2. He had CBI No.351/2019 Page 71 of 100 72 also joined the investigation for purposes of voice identification on 07.06.2017 and proved the voice identification memo Ex. PW-4/5. As far as his version regarding voice identification is concerned, again no question mark has been raised. He acted a shadow witness both during verification proceedings as well as trap proceedings. He accompanied the complainant Mohd Chand (PW-4) right till the office of Fateh Chand (A-1) where Fateh Chand (A-1) had conversation with complainant (PW-4). Therefore, he had the opportunity for a sufficient long time of hearing the voices on two consecutive days. His version on the said aspect of identification is again not challenged in the cross- examination conducted on behalf of both A-1 and A-2.
37. Now, coming to the contents of the recorded conversation Q-1 (Ex.PX-8). The said conversation is between Fateh Chand (A-1) and Mohd Chand (PW-4) which took place on 1 st of May 2017 at the time of verification proceedings consequent to the lodging of complaint Ex.PW-4/1. The said recorded conversation also reflects the presence of some third person and the said third person joins the conversation between them. He during the later part explains the late fees for renewal of licence for running the meat shop which was Rs.2400/-. The said presence of the third person and he having joined the conversation is also reflected in the examination-in-chief of Mohd Chand (PW-4). The said recorded conversation starts with the previous conduct being pointed out by Fateh Chand (A-1) of the owner of the shop i.e Vineet Kahil (PW-6) at the time of renewal of licence in the previous year 2016. The said fact is also corroborated through CBI No.351/2019 Page 72 of 100 73 notings Ex.PW-2/1 of the previous year which is of Fateh Chand (A-1) only. Fateh Chand (A-1) complained about not having received any profit while processing the previous year license. The conversation thereafter continued and Fateh Chand (A-1) in categorical terms demanded the bribe of Rs.8000/- by claiming that the said amount was to be paid to his higher authorities. He, for his own demanded Rs.2000/- which he agreed to waive/forego after the complainant (PW-4) repeatedly pleaded about his poverty as well as he being a student. He lastly thereafter stated that in total around Rs.12000/- is the expenditure which includes Rs.8000/- and Rs.4400/- being the fee for renewal of the license. Thus recorded conversation also corroborates the testimonies of Mohd Chand (PW-4) and Ankit Dahiya (PW-8) regarding demand of bribe of Rs.8000/- apart from renewal fee of Rs.4400/-.
37.1 Therefore, the said cumulative piece of evidence proved by the prosecution which includes the oral testimonies of Mohd Chand (PW-4), Vineet Kahil (PW-6), Inspector N.K. Verma (PW-
3), documentary evidence and recorded conversation Q-1 (Ex.PX-8) proves on record the demand of bribe of Rs.8000/- made by Fateh Chand (A-1) being the public servant acting as Veterinary Inspector in order to process the application for renewal of license of meat shop owned by Vineet Kahil (PW-6).
Acceptance of Bribe
38. The next crucial aspect to be considered for proving the charges against the accused persons for the offence punishable CBI No.351/2019 Page 73 of 100 74 under Section 7 & 13 (1) (d) r/w 13(2) of PC Act, is the factum of acceptance of bribe in pursuance of demand. The said fact of acceptance of bribe is second sine-qua-non for proving the offence as has been reiterated by the Hon'ble Supreme Court in Neeraj Dutta (supra) case.
38.1 The prosecution, in order to prove, the said fact of acceptance of the bribe has placed reliance upon the oral testimonies of Mohd Chand (PW-4), Vineet Kahil (PW-6) and Ankit Dahiya (PW-8), Shadow Witness and Munish ( PW-10), the independent witness and lastly Inspector Ramesh Kumar (PW-12), the Trap Laying Officer (TLO). After the completion of verification proceedings by Inspector N.K. Verma (PW-3), Verifying Officer, he submitted his verification report Ex.PW-4/2 alongwith conversation recorded in memory card Q-1 during verification proceedings. He recommended for registration of the present FIR. Inspector N.K. Verma (PW-3) deposed that as it was already 9:00 p.m. when he concluded the verification proceedings. He accordingly submitted his report to his S.P. on the next day whereupon the FIR (Ex.PW-12/1) for the offences punishable under Section 7 of PC Act was registered on 2 nd of May 2017 at 11:30 a.m. The investigation after registration of the FIR, was handed over to TLO Inspector Ramesh Kumar (PW-12) who was deputed to lay the trap. He then joined two independent witnesses i.e Ankit Dahiya (PW-8) and Munish (PW-10). In the meantime, Mohd Chand (PW-4) and his owner Vineet Kahil (PW-6) had too joined the proceedings with him. Apart from the said witnesses, the other CBI officials Inspector CBI No.351/2019 Page 74 of 100 75 Harnam Singh, Shitanshu Sharma, N.K Verma, Vikas Panu and SI P.K Singh too were joined and made members of the raiding party.
Presence of Material Witnesses at spot during Trap Proceedings 38.2 The first aspect vis-a-vis the trap proceedings is the presence of the material witnesses i.e Mohd Chand (PW-4) , Vineet Kahil (PW-6), Ankit Dahiya (PW-8) and Munish (PW-10) at the CBI office during the afternoon hours and at the spot i.e office of SDMC, Green Park, New Delhi, at around 5:00 p.m, when the trap was laid. All the said witnesses had deposed consistently with respect to the sequence of events which took place on that day after they were made part of raiding team to lay trap by TLO Inspector Ramesh Kumar (PW-12). Though accused have raised a doubt over the presence of Vineet Kahil (PW-6). Apart from him, the presence of other witnesses both at the CBI office as well as at the place of trap is not disputed. As far as Vineet Kahil (PW-6) is concerned, it was argued on behalf of A-1 the case of the prosecution becomes suspicious as initially during the verification proceedings or at the time of filing of complaint Ex.PW-4/1, it was claimed that Vineet Kahil (PW-6) was on bed-rest due to some medical ailment, but he all of a sudden, joined the proceedings on 2 nd of May 2017 without any request from the CBI.
38.3 To appreciate the said aspect, the testimony of both Mohd Chand (PW-4) and Vineet Kahil (PW-6) needs to be appreciated CBI No.351/2019 Page 75 of 100 76 and their testimonies clarify the issue of presence as well as the medical issues faced by Vineet Kahil (PW-6). Mohd Chand (PW-4) deposed that on 1st of May 2017 after having moved the complaint on the directions of his owner (PW-6), verification of the complaint was carried on 1st of May 2017 and he was directed to report on the next day alongwith the bribe amount of Rs.12,400/-. On the next day, at about 9:30 a.m, he alongwith his owner Vineet Kahil (PW-6) reached the CBI office. Similar is the version of Vineet Kahil (PW-6) who too deposed that he had directed his associate/friend (PW-4) to lodge the complaint after demand of bribe by Fateh Chand (A-1). He also the reached the office of CBI on 2 nd of May 2017 and carried with him Rs.12,400/-. Though he claimed that PW4 was already present there . As far as his version with respect to his telephonic conversation and he having joined the proceedings on 2 nd of May,2017, he was extensively cross-examined on behalf of A-1. He deposed that he had handed over the documents with respect to his eye-surgery to Inspector A.K. Singh (PW-13) who is the second investigating officer. He further deposed that he was admitted and discharged on the same day form the hospital. He further clarified that his eye-surgery was got conducted at PGI, Chandigarh and he had shown all the medical papers to Inspector A.K. Singh (PW-13). He further stated that he did not visit the office of SDMC for renewal of licence of his meat shop as he was out of Delhi all the time and owner is not required to be personally present. Though he had filled the form for renewal of license. He further stated that the eye-surgery was got conducted in February2017 and he was advised only bed rest for certain CBI No.351/2019 Page 76 of 100 77 days. The remaining cross-examination is with respect to his visit to CBI office in May 2017 or thereafter. Thus, as far as his version with respect to he being medically advised for rest for few days only due to eye-surgery and he having authorised his employee/associate Mohd Chand (PW-4) to pursue for renewal application form, there is no denial and even the bald suggestions denying all these facts is missing. It is thus reflected from the cross-examination itself that PW-6 had undergone the eye-surgery in February2017 only and he was advised few days medical rest. Therefore, in the said backdrop, there was no serious medical condition which prevented him from joining the proceedings on 2nd of May 2017 as has been argued on behalf accused persons. In these circumstances, it has to be observed that there is no iota of doubt with respect to the presence of Vineet Kahil (PW-6) on the spot on 2nd of May 2017 or subsequently at CBI office.
38.4 As far as his absence during the process of submission of renewal application form, it is clear from the cross-examination as well as his residential address that he is the permanent resident of Mohali (Chandigarh). He seems to be running his business in Delhi by taking assistance of his associates/employees including Mohd Chand (PW-4).Therefore it was natural on his part to depute the employees in the submission of renewal applications form. His presence was also necessary as he being the owner of the shop arranged the bribe amount.
CBI No.351/2019 Page 77 of 100 78Trap Proceedings
39. The next aspect to be considered is the sequence of events which took place after the constitution of trap team by TLO Inspector Ramesh Kumar (PW-12) and its veracity. The material issues in this regard are firstly the production of the bribe money of Rs12400/- by Mohd Chand (PW-4), the said bribe money being treated with Phenolphthalein Powder and the demonstration being given as to the Phenolphthalein Powder and its reaction when touched with the solution of water and sodium carbonate. Thereafter, the DVR and new memory card being arranged, the said DVR being provided by Ankit Dahiya (PW-8) with whom the possession of DVR and brass seal was there after the verification proceedings and lastly the spot proceedings which includes the delivery of bribe amount to Naveen Kumar (A-2) on the asking of Fateh Chand (A-1) and subsequent recovery thereof by CBI team.
Production of Bribe Money 39.1 It has already been observed that the presence of material witnesses who were part of the trap team is not disputed. Both Mohd Chand (PW-4) and Vineet Kahil (PW-6) had gone to the CBI office on 2nd of May 2017. Both of them deposed that they produced the bribe amount of Rs.12,400/- and the said amount was arranged by Vineet Kahil (PW-6). They have remained consistent on the said aspect and their testimony is also corroborated by TLO Inspector Ramesh Kumar (PW-12).
CBI No.351/2019 Page 78 of 100 79Though there is minor contradiction in their testimonies concerning their arrival at CBI office .
39.2 The next aspect is demonstration being given to the said witnesses qua treatment of bribe amount with Phenolphthalein Powder and after touching of said GC notes with solution of water and sodium, its reaction. The said demonstration was given by Inspector Harnam Singh. The independent witness Munish (PW-10) had touched the said notes and his right hand fingers were put into the solution which turned pink. All of the witnesses i.e Mohd Chand (PW-4), Vineet Kahil (PW-6) and Munish (PW-10) consistently deposed on the said aspect and there is no worthwhile contradiction qua it which puts any question mark over their said claim. The only ground on which the said part of the testimony is challenged is not naming Inspector Harnam Singh as prosecution witness. The role of Inspector Harnam Singh is also there at the time of apprehension of accused persons as he and Inspector Shistanshu Sharma, both from CBI, apprehended the accused persons on the directions of TLO Inspector Ramesh Kumar (PW-12). Both of them were not named as prosecution witness. The issue is to be seen as to whether non-naming of the said two CBI officials as prosecution witnesses affects the case of the prosecution or not. The prosecution has examined Inspector N.K. Verma (PW-3), Mohd Chand (PW-4), Vineet Kahil (PW-6), Ankit Dahiya (PW-8) and Munish (PW-10) who all were part of raiding team. Apart from the said witnesses examined, few CBI officers were also part of the CBI team i.e Inspector Harnam Singh, Inspector Shitanshu CBI No.351/2019 Page 79 of 100 80 Sharma, Vikas Panu and S.I T.K. Singh. The role of the said witnesses who have not been named as prosecution witnesses is quite similar as compared to the witnesses examined by the prosecution. Their role has been narrated in detail by TLO Inspector Ramesh Kumar (PW-12) and in brief by Vineet Kahil (PW-6) and Ankit Dahiya (PW-8).
39.3 There is no challenge in the cross-examination of TLO Inspector Ramesh Kumar (PW-12) as to the role played by Inspector Harnam Singh and Inspector Shitanshu Sharma. If indeed, the accused doubted about their role, they could have cross-examined PW-12 and other witnesses on the said aspect. Even the bald suggestion denying the role played by Inspector Harnam Singh or Inspector Shitanshu Sharma is missing. Even otherwise it is well settled position of law that the quality and not quantity of evidence is material. There was no use of examining all the members of raiding party as their evidence was going to be that of repetitive nature only. Therefore, mere non- naming of said members of the raiding party as prosecution witnesses does not affect the consistent testimonies of other material prosecution witnesses who were also part of the trap team and examined in the present case.
Apprehension of Accused Persons Red Handed
40. The last aspect to be considered qua the acceptance of the bribe is the events which took place at the office of SDMC on 2nd of May 2017 at around 5:00 PM when the team arrived CBI No.351/2019 Page 80 of 100 81 there. Both Mohd Chand (PW-4) and Ankit Dahiya (PW-8), Shadow Witness, visited the office of A-1 wherein A-2 was found present. As far as presence of A-1 and A-2 at the office is concerned, there is no iota of doubt as their attendance record proves their presence as discussed in Para no. 32. PW-4 and PW-8 consistently deposed about the absence of Fateh Chand (A-1) at that point of time and they being asked to wait for his arrival. Mohd Chand (PW-4) was carrying DVR (Ex.PX-12) having memory Card Q-2 (Ex.PW-8/P3). Both deposed consistently with respect to the arrival of Fateh Chand (A-1) after some time in his room and the conversation which took place between Fateh Chand (A-1) and Mohd Chand (PW-4) with respect to demand and acceptance of bribe. PW-4 in this regard deposed that after Fateh Chand (A-1) came back to his office after about 10 minutes of their waiting. He (A-1) then directed Naveen Kumar (A-2) to take out his file from the Almirah. Naveen Kumar (A-2) then reported after taking out the file that even the processing fees receipt of Rs.300 qua renewal of license is not there. Accordingly, Fateh Chand (A-1) directed him (PW-4) to pay the said amount of Rs.300/- to Naveen Kumar (A-2) who on his own would deposit the same. Fateh Chand (A-1) further directed him (PW-4) to pay the rest amount to Naveen Kumar (A-2). A-1 further clarified that the license fees of Rs.4400/- which was the renewal fees be retained by PW-4 and be deposited on the next day or whenever he is asked to do so.
40.1 Similar is the version of Ankit Dahiya (PW-8) who acted CBI No.351/2019 Page 81 of 100 82 as a shadow witness and was accompanying Mohd Chand (PW-
4) in the room of Fateh Chand (A-1). The remaining witnesses were outside and had never really witnessed the conversation and transaction which took place between Fateh Chand (A-1) and Mohd Chand (PW-4). Ankit Dahiya (PW-8) too deposed that after the arrival of Fateh Chand (A-1) to his office, he asked someone (A-2) present in his room ( later on found to be A-2) to take out the file of complainant (PW-4) and that person after seeing the file stated that even the processing fees has not been deposited. Accordingly, the complainant (PW-4) clarified about the said amount and agreed to pay Rs.8300/- which was paid to that person (A-2) who took out the file from the Almirah. PW-8 after the delivery of the bribe amount made the call to TLO Inspector Ramesh Kumar (PW-12) on his mobile as it was pre- decided. So, on the aspect of their arrival in the room of Fateh Chand (A-1) for the first time on 2/5/2017 and the conversation which took place between Mohd Chand (PW-4) and Fateh Chand (A-1) and lastly the delivery of bribe amount which included Rs.300/- qua processing fees to A-2, both have deposed consistently and no worthwhile contradiction has been pointed out in the extensive cross-examination conducted on behalf of Fateh Chand (A-1).
40.2 The said part of the testimony of Mohd Chand (PW-4) and Ankit Dahiya (PW-8) was tried to be discredited by the accused persons by claiming that the remaining amount of Rs.4100/- never came on record which falsifies their story. The said amount of Rs. 4100/- which too was part of the treated bribe CBI No.351/2019 Page 82 of 100 83 amount was recovered from the possession of Mohd Chand (PW-
4) by independent witness Munish (PW-10) on the directions of TLO (PW-12). The said remaining amount was thereafter also separately sealed and seized in separate packet. The said packet was produced for the first time in the Court during the testimony of Ankit Dahiya (PW-8). The said packet Ex.PW-8/P-11 contained one currency note of Rs.2000/-, four currency notes of Rs.500/- and one currency note of Rs.100/-. PW-8 though was not able to identify the said GC notes and the reason for the same is quite apparent as the said GC notes were produced by Mohd Chand (PW-4) and Vineet Kahil (PW-6). The said aspect has also to be seen in light of Handing over memo Ex.PW-4/3. As per the same, the complainant (PW-4) had produced 5 GC notes of Rs.2000/-, 4 GC notes of Rs.500/- and 4 GC notes of Rs.100/-. Out of the said 5 GC notes of Rs.2000/-, one GC note mentioned at serial number 1 i.e 7KG919565 was recovered from the possession of Mohd Chand (PW-4) by Munish (PW-10) apart from 4 GC notes of Rs.500/- and 1 GC note of Rs.100/- . The said document Ex.PW-4/3 has been proved by both material witnesses i.e shadow witness Ankit Dahiya (PW-8) and recovery witness Munish (PW-10) who had recovered both the bribe amount as well as remaining amount from the custody of Mohd Chand (PW-4). The GC notes Ex.PW-8/P-11 ( remaining treated money ) are also proved by recovery witness Munish (PW-10) who had taken out the bribe amount of Rs.8300/- as well as remaining amount of Rs. 4100/- from the custody of Naveen Kumar (A-2) and PW-4 respectively. He also proved the notings qua the said recovery in handing over memo CBI No.351/2019 Page 83 of 100 84 Ex.PW-4/3. Therefore, on the said aspect the testimony of Munish (PW-10) becomes most crucial one which is not challenged or rebutted in the cross-examination. Again even the bald suggestion denying the said recovery as well as notings in Ex.PW-4/3 qua the recovery is missing. Therefore, the objection raised on behalf of the accused qua non-production of the said remaining amount of bribe money which was not delivered is without any basis and even against the record. PW-10's testimony on the said aspect further render the objection raised by accused over his presence at the spot to be frivolous.
40.3 Ld. Counsel for the accused has further tried to put into dock the trap proceedings by arguing that not a single document was prepared at the spot despite the fact that the CBI team having remained at SDMC office till about 9:00 PM. All the material witnesses have consistently deposed that after the apprehension of accused persons, the recovery of bribe amount was made and thereafter the procedure of taking hand washes and shirt wash of Naveen Kumar (A-2) was done. The hand washes as well as shirt washes solutions were separately sealed in separate glass bottles by putting paper labels and seal. Similarly, the bribe amount as well as remaining bribe amount was also seized and sealed at the spot itself. Thereafter, the search of the Almirah of Fateh Chand (A-1) was carried out by ensuring the presence of responsible officer i.e Dr. Bhagat, Deputy Director Health as the Deputy Director Veterinary namely Dr. V.K Singh (PW-2) failed to respond to the telephonic calls. The said search led to the recovery of incriminating CBI No.351/2019 Page 84 of 100 85 documents which includes Ex. PW6/1 ( colly) file of renewal of license which was illegally retained by Fateh Chand (A-1) on the first visit of Mohd Chand (PW-4) in the last week of April 2017. The office search memo Ex.PW-8/P-14 was prepared in this regard in presence of Dr. V.N. Bhagat, DHO-cum-Registrar, SDMC, wherein 16 files were recovered. The said document was prepared at the spot itself and has been proved by Ankit Dahiya (PW-8) and Munish (PW-10) which is undisputed and thus, reflects the argument of Fateh Chand (A-1) being against the record.
40.4 Apart from that, another crucial document prepared at the spot itself is the rough site-plan Ex.PW-6/DX. The said site- plan was also put into dock on behalf of the accused by arguing that the author of the same is not identified. TLO Inspector Ramesh Kumar (PW-12) clarifies the said aspect and deposed that said rough site-plan was prepared at the spot on his directions by Inspector Harnam Singh. Again the said aspect is not rebutted or challenged in the cross-examination. Even otherwise, remaining witnesses i.e Ankit Dahiya (PW-8) and Munish (PW-10) too proved the said document by identifying their positions and signatures on the same.
40.5. The said rough site-plan was also put into dock on another ground that the same is not signed by other witnesses including Mohd Chand (PW-4) and Vineet Kahil (PW-6) or the position of some of the raiding party members being not shown. There is no requirement of law which prescribes for obtaining the CBI No.351/2019 Page 85 of 100 86 signatures of all the witnesses on the site plan. The rough site- plan only helps the Court for deciphering the story of prosecution which is generally prepared by the Investigating Officer (I.O). In the present case, the same has been prepared by Inspector Harnam Singh on the directions of TLO Inspector Ramesh Kumar (PW-12).
40.6 It is merely a rough site-plan and even the title of same reflects it being prepared without scale. Therefore, it cannot be assumed that it will reflect all the aspects or positions as has been argued. The material positions only have been shown. Vineet Kahil (PW-6) & Ankit Dahiya (PW-8) further in their cross-examination deposed that the documents which were prepared at the spot were hand-written which again corroborates the story of prosecution as both the documents i.e site-plan Ex.PW-6/DX and office search memo Ex.PW-8/P-14 are both hand-written. The remaining documents were prepared at the CBI office as all the said proceedings ended at about 9:00 PM and it was natural that office SDMC was not the conducive place for conducting the further proceedings during the late night hours.
Veracity of the Testimonies of Witnesses, Authenticity of Recorded Conversation etc.
41. Now comes the aspect of veracity of the testimonies of the witnesses i.e Mohd Chand (PW-4) and Vineet Kahil (PW-6), Ankit Dahiya (PW-8), Munish (PW-10) and TLO Inspector CBI No.351/2019 Page 86 of 100 87 Ramesh Kumar (PW-12) qua acceptance of bribe. Apart from minor contradictions with respect to the timings, switching off or on the DVR given to Mohd Chand (PW-4) and sequence in which hand washes were taken, the witnesses on the core aspects of sequence of events, the manner in which the bribe was delivered and the apprehension of accused, have corroborated each other. The minor contradictions as referred above do occur due to passage of time, power of observation etc. In this regard the judgment of Hon'ble Supreme Court in Bharwada Bhoginbai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 AIR 1983 SC 753 sums up the position of law as under:-
"Over much importance cannot be attached to minor discrepancies. The reasons are obvious:(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen:
(2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise.
The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their CBI No.351/2019 Page 87 of 100 88 estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person, (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him-Perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all important "probabilities- factor" echoes in favour of the version narrated by the witnesses."
41.1 Therefore, it has to be observed that the testimonies of the witnesses in the present case on the aspect of acceptance of bribe by Fateh Chand (A-1) through Naveen Kumar (A-2) are credible and trustworthy.
Recorded Conversation 41.2 The next corroborating piece of evidence produced by the prosecution with respect to the factum of acceptance of bribe by Fateh Chand (A-1) through Naveen Kumar (A-2) is the recorded CBI No.351/2019 Page 88 of 100 89 conversation in the memory card Q-2 (Ex.PW-8/P3). It is the case of the prosecution that before proceeding for the trap, TLO Inspector Ramesh Kumar (PW-12) obtained the fresh memory card from his office and Ankit Dahiya (PW-8) handed over the DVR which was earlier used for verification. The said DVR having fresh memory card thereafter was handed over to Mohd Chand (PW-4) by switching it on when they reached at SDMC office at about 16:25 PM. It was placed in the left hand side pocket of Mohd Chand (PW-4) and only after the conclusion of the transaction consequent to the receipt of call from Ankit Dahiya (PW-8) by TLO Inspector Ramesh Kumar (PW-12), it was taken back and was switched off. So, the entire conversation right from around 16:30 p.m till 17:16 p.m is stated to have been recorded in the memory card Q-2 (Ex.PW- 8/P3).
42. Before discussing about the contents of the said recorded conversation, the issue of the authenticity of the said conversation requires to be discussed. The accused persons have raised question mark over the authenticity of said recording by pointing out towards the contradiction with respect of timings switching on or off the DVR. Secondly, the identity of the speaker being not established. Ld. Counsel for Fateh Chand (A-
1) in this regard has placed reliance upon judgment in Ram Singh & Ors (supra) case.
43. It has already been observed that the DVR used for recording the conversation on 2nd of May 2017 in memory card CBI No.351/2019 Page 89 of 100 90 Q-2 (Ex. PW-8/P3) was for the first time used on 1 st of May 2017 during the verification proceedings. Inspector N.K. Verma (PW-3), the Verifying Officer as well as remaining members of the team categorically deposed that after the conclusion of verification proceedings, the DVR as well as the seal used was handed to Ankit Dahiya (PW-8). The testimony of TLO Inspector Ramesh Kumar (PW-12) proves the handing over the DVR (Ex.PX-12) and brass seal to Ankit Dahiya (PW-8) on 1 st May 2017 and subsequently he having produced the same on the day of trap ( on 2nd May 2017) is not challenged as already discussed in Para no.34.3. Therefore, as far as the aspect of use of DVR (Ex.PX-12) is concerned, the testimonies of Inspector N.K. Verma (PW-3) and TLO Inspector Ramesh Kumar (PW-12) points towards the use of same DVR on the both days i.e 1 st of May 2017 and 2nd of May 2017. The DVR Make Sony used in the present case on both the days has been proved on record as Ex.PX-12.
44. The second aspect in this regard is use of fresh memory card for recording the conversation in Q-2 (Ex.PW-8/P3) during the trap proceedings and its custody after it being sealed. The said memory card Q-2 (Ex.PW-8/P3) after the conclusion of the proceedings was sealed in a separate envelope Ex.PW-8/P1. Before sealing the said memory card, rough transcript was prepared for taking specimen voice samples of accused persons. The said specimen voice samples have been proved on record Ex.PW-8/P-6 and Ex.PW-8/P-8.
CBI No.351/2019 Page 90 of 100 9144.1 As far as the aspect of the seizure and sealing of memory card Q-2 (Ex.PW-8/P3)in envelope Ex.PW-8/P-1 by TLO Inspector Ramesh Kumar (PW-12) is concerned, there is no specific denial in the cross-examination on behalf the accused. Even the suggestion with respect to the tampering etc is missing. After the seizure and sealing of said memory card Q-2 (Ex.PW- 8/P3), the same was sent for preparation of copies through request letter Ex.PW-9/1 dated 15.05.2017. The chain of custody thus, after seizure till its submission with CFSL, New Delhi, is established. Even the documents proved by Malkhana Incharge SI Jai Prakash (DW-2) during the defence evidence also establishes the said chain of custody. The seized property register Ex.DW-2/E reflects the deposit of Q-1 & Q-2, S-1 & S- 2 and the DVR in the Malkhana by TLO Inspector Ramesh Kumar (PW-12) on 03.05.2017. After preparation of the copies of the said memory cards for investigation purposes, the same were forwarded to CBI by FSL Photo and Scientific Division on 23.05.2017 through letter Ex.PW-9/2. Sh. A.D Tiwari (PW-9), Principal Scientific Officer (Photo) CFSL proved the factum of receiving all four sealed parcels Q-1, Q-2, S-1 and S-2 for preparation of five copies which he prepared. The only ground on which the said process has been questioned on behalf of accused is the want of certificate under Section 65-B of the Indian Evidence Act by Sh. A.D Tiwari (PW-9). The said argument has to be appreciated, but not looking into the testimony of Sh. A.D Tiwari (PW-9) in isolation. The entire case of the prosecution needs to be appreciated for seeing the object behind preparation of the copies of the memory cards. In this CBI No.351/2019 Page 91 of 100 92 regard, the testimony of Inspector Ajay Kumar Singh (PW-13), clarifies the issue and the object behind preparation of copies. The copies were got prepared only for purposes of investigation and thereafter only transcript of recorded conversation was got prepared vide transcription-cum-voice identification memo Ex.PW-4/5 (collectively).
44.2 Then, the original memory cards Q-1 (Ex.PX-8) Q-2 (Ex.PW-8/P3) and specimen voices S-1 and S-2 alongwith DVR (Ex.PX-12) were sent for opinion through letter Ex.PW-11/C-1 dated 7th of June, 2017. The copies of the said original memory cards have not come on record and therefore, there was no requirement of certificate under Section 65-B of Evidence Act. The original memory cards Q-1 and Q-2 have come on record for which there was no requirement of such certificate.
44.3 The expert opinion qua the identification of the speaker in the recorded conversation, accuracy of the tape-recorded conversation and possibility of tampering eraser etc being ruled out has been given by expert Dr. Subrat Kumar Choudhury (PW-11),SSO (Physics), CFSL, New Delhi. He furnished his report Ex.PW-11/A dated 4th September 2017. He addressed all the queries raised in the forwarding letter Ex.PW-11/C-1 wherein the query with respect to the speaker of the voice, opinion with respect to the use of DVR (PX-12) in recording the contents of Q-1 (Ex.PX-8) and Q-2 (Ex.PW-8/P3) and lastly the possibility of any tampering in it or not, was sought. The opinion findings CBI No.351/2019 Page 92 of 100 93 qua the said queries is reproduced hereunder for the sake of convenience and clarity:
OPINION Hence, the voices marked exhibits Q-1(2) (A) & Q- 2 (3) (A) are the probable voices of the person (Shri Fateh Chand) whose specimen voice is marked exhibit S-1 (3) (A).
Regarding Query No.2
(i) The auditory examination of questioned voice marked exhibit Q-2 (3) (B) and specimen voice of Shri Naveen Kumar marked exhibit S-2 (3) (B) reveal that questioned voice marked exhibit Q-2 (3) (B) is similar to the specimen voice marked exhibit S-2 (3) (B) in respect of their linguistic and phonetic features.
(ii) The voice spectrographic examination of questioned voice samples marked exhibits Q-2 (3) (b1) to Q-2 (3) (b5) and specimen voice samples marked exhibits S-2 (3) (b1) to S-2 (3) (b5) reveal that the questioned voice samples marked exhibits Q-2 (3) (b1) to Q-2 (3) (b5) are similar to specimen voice samples marked exhibits S-2 (3) (b1) to S-2 (3) (b5) in respect of their formant frequencies distribution, intonation pattern, no. of formants and other general visual features in spectrograms.
OPINION Hence, the voice marked exhibit Q-2 (3) (B) is the probable voices of the person ( Shri Naveen Kumar) whose specimen voice is marked exhibit S-2 (3) (B).
Regarding Query No.3 Waveform, spectrographic and critical auditory examination of the audio recordings contained in exhibits 'Q-1', 'Q-2', 'S-1' and 'S-2' reveal that the audio recordings are continuous and no form of tampering detected.
Regarding Query No.4 Comparison of format and characteristics of test audio recordings done in exhibit DVR and audio files containing in exhibits 'Q-1', 'Q-2', 'S-1' and 'S-2' reveal that the digital voice recorder marked as exhibit DVR could have been used to record the contents of the memory cards marked as exhibits 'Q-1', 'Q-2', 'S-1' and 'S-2'.
CBI No.351/2019 Page 93 of 100 9444.4 As far as the authenticity of the said opinion or the expertise of Dr. Subrat Kumar Choudhury (PW-11) who furnished the said opinion, there is no question mark or doubt raised on behalf of accused persons except for certain bald suggestions in this regard. The said issue is already discussed in Para-35 of the judgment. The other issue raised is with respect to the difference in the receiving of the said exhibits in CFSL in letter Ex.PW-11/C-1 and letter produced by witness Ex.PW-11/DA. The notings on letter Ex.PW-11/DA only reflects the internal working and duties assigned to various officials after the receipt of exhibits from the Investigating Authority at CFSL. There is no difference either in the contents of the letter or the number of exhibits sent for examination in both the above- referred letters. Thus, it has to be held that the opinion furnished by Dr. Subrat Kumar Choudhury (PW-11) satisfies the conditions as stipulated by the Hon'ble Supreme Court in Ram Singh & Anr (supra) case with respect to the admissibility of recorded conversations. Even otherwise, the identity of the speaker in the recorded conversation is concerned, it has already been observed ( in Para No.35 ) that the same stands established through the oral versions of Mohd Chand (PW-4) and Ankit Dahiya (PW-8).
44.5 Now, coming to the contents of the recorded conversation in memory Card Q-2 (Ex.PW-8/P3). It is the corroborating piece of evidence produced by the prosecution to support the oral testimonies of Mohd Chand (PW-4) and others. The said recorded conversation and transcript part of Ex.PW4/5 CBI No.351/2019 Page 94 of 100 95 ( collectively) shows the initial presence of Naveen Kumar (A-2) in the room of Fateh Chand (A-1) when Mohd Chand (PW-4) and Ankit Dahiya (PW-8) visited their office for delivery of bribe amount. A-1 was not present and A-2 asked PW4 and PW8 to wait for the arrival of A-1. After certain time, Fateh Chand (A-1) returns and request is made by Mohd Chand (PW-
4) to him for process his renewal application/file. Thereupon, Fateh Chand (A-1) demanded payment and Naveen Kumar (A-
2) after taking out the file informed Fateh Chand (A-1) that even the processing fees of Rs.300/- is still not paid. Thereupon, Fateh Chand (A-1) asked complainant (PW-4) to pay the said amount to him (A-2) and they themselves will deposit the fees. Thereafter, specific direction is given by Fateh Chand (A-1) to pay Rs.8300/- to Naveen Kumar (A-2) for processing of the file and renewal fees of Rs.4400/- be kept by the complaint (PW-4) with himself. It be deposited on the next day or whenever he is asked to do so. Thereupon, complainant (PW-4) went towards Naveen Kumar (A-2) and handed over the said amount, upon which Naveen Kumar (A-2) inquired as to "Kitne Hai ( How- much)" and "aath hazaar teen sau hai, 4400 ye baad me keh rahe hai (Eight Thousand Three Hundred, Fourty Four Hundred will be paid later on as they are saying). There is specific reply by the complainant by saying "Chawalis Sau bad me keh rahe hai". Therefore the said piece of corroborating evidence i.e recorded conversation too proves the case of the prosecution regarding delivery of bribe amount of Rs.8000/- plus Rs.300/- towards processing amount and the said amount being received by Naveen Kumar (A-2) on the directions of Fateh Chand (A-1).
CBI No.351/2019 Page 95 of 100 96It also corroborates the version of PW-4 and PW-8.
Hand Washes
45. The last piece of evidence produced by the prosecution for proving the factum of acceptance of bribe by Naveen Kumar (A-2) on the instructions of Fateh Chand (A-1) is the hand washes and shirt wash report Ex.PW-1/1. It has already been observed that the entire bribe amount of Rs.12400/- was treated with phenolphthalein powder and after the apprehension of Fateh Chand (A-1) and Naveen Kumar (A-2), the said amount of Rs.8300/- was taken out by independent witness Munish (PW-
10) from the shirt pocket of A-2. The Right Hand Wash (RHW) and Left Hand Wash (LHW) of A-2 was taken in the Sodium Carbonate and water solution which turned pink. The said bottles have been proved on record as Ex.PX-1 and PX-2. Similarly, the shirt wash of Naveen Kumar (A-2) was also taken which has been proved on record as PX-3. The said exhibits were sealed by TLO Inspector Ramesh Kumar (PW-12) at the spot and seal after use was handed over to Munish (PW-10) who lastly produced the same in the Court. The chain of custody of the said exhibits also stands proved through seized property register Ex.DW-2/A showing the deposit of said washes as well as trap money on 3rd of May 2017 by PW-12.
45.1 Thereafter, the said bottles were handed over to Inspector A.K. Singh (PW-13) on 15th of May 2017 and were deposited with CFSL New Delhi alongwith specimen seal impression vide letter Ex.PW-13/1 dated 15.05.2017. The opinion as to the CBI No.351/2019 Page 96 of 100 97 Phenolphthalein in all the said objects has been furnished by Sh. V.B Ramteke (PW-1) through his report Ex.PW-1/1 dated 30 th of May 2017. The said report is questioned on behalf of the accused persons on the ground that at least 5 micro-grams of Phenolphthalein is required to find out its presence. Sh. V.B Ramteke (PW-1) failed to carry out any test to find out the percentage of Phenolphthalein and Sodium Carbonate in the questioned solution.
45.2 The said issue has to be appreciated by reading the testimony of PW-1 in entirety. As far as the expertise of Sh. V.B Ramteke (PW-1) in the said field is concerned, there is no doubt as his version of having 22 years of experience in chemical analysis is not challenged. The only issue to be seen is as to whether the failure to find out the percentage of Sodium Carbonate in the solution renders the report of PW-1 to be defective or incomplete. The response given by PW-1 in the cross-examination itself clarifies the said issue and throw lights on his findings. The relevant portion of V.B. Ramteke (PW-1) cross-examination is reproduced hereunder:
"I did not carry out any test to find out the percentage of phenolphthalein powder or sodium carbonate in the questioned solution. Since my test are positive, I can say that the quantity of phenolphthalein in the solution tested by me must have been more than 5 micro gram."
45.3 Therefore, there is no reason to doubt the authenticity or the findings given by PW-1 and his report Ex.PW-1/1 qua CBI No.351/2019 Page 97 of 100 98 presence of Phenolphthalein in the washes taken at the spot. The said piece of corroborating evidence too goes against the accused persons in proving the fact of acceptance of bribe.
46. The last piece of circumstantial evidence which too is unrebutted and unchallenged by both the accused persons is the recovery of huge unaccounted amount of cash from the personal search of A-1 and A-2. PW-12 deposed that after the apprehension of accused persons and recovery of bribe amount, independent witness PW-10 was asked to carry out personal search of A-2 which led to the recovery unaccounted amount of Rs.46,000/- from his right side pant pocket. Similarly, the personal search of A-1 led to recovery of unaccounted amount of Rs.52,970/-. The remaining prosecution witnesses i.e PW-4, PW- 6, PW-8 and PW-10 too have proved the said fact of recovery of unaccounted amount from the accused persons. The said huge recovery of cash is neither disputed nor challenged on behalf of either of the accused. Therefore, the said fact of recovery of unaccounted amount of Rs.46,000/- and Rs.52,970/- respectively which is unexplained too goes against them. It has already come on record that any applicant submitting the application for license has to deposit the fees with the Centralised Counter and therefore, the recovery of such unaccounted cash from A-1 and A-2 raises doubt over their conduct. Any Government Servant carrying such a huge amount of cash while being present in the office only raises a finger of suspicion over his conduct and he being involved in unethical practices. The said recovery further proves the case of the prosecution with respect to the criminal CBI No.351/2019 Page 98 of 100 99 conspiracy involving A-1 and A-2 in collecting bribes from the applicants coming to the office of A-1 which included PW-4.
Defence of the Accused Persons & Presumption under Section 20 of P.C Act.
47. After proving of the foundational facts by prosecution, the presumption under Section 20 of P.C Act comes into play and it has to be presumed that A-1 accepted the bribe as a motive or reward as defined in Section 7 of PC Act. The onus, thereafter, shifted upon the accused to disprove the same on the standard of preponderance of probability.
47.1 Both Fateh Chand (A-1) and Naveen Kumar (A-2) for discharging the said onus have baldly claimed their false implication and pleaded innocence in their statement under Section 313 Cr.P.C. No specific defence has been put forth by them as to the reason for their false implication or the reason Mohd Chand (PW-4) and Vineet Kahil (PW-6) having deposed against them qua demand and acceptance of bribe. Though in the cross-examination of Vineet Kahil (PW-6), the defence was raised on behalf of A-1 that as MCD challaned the shop of Vineet Kahil (PW-6), he has tried to implicate the officials of veterinary department in a false case out of revenge. Surprisingly, the said defence was never put to Mohd Chand (PW-4) who is the complainant in the present case nor was ever put to other prosecution witnesses who conducted the material investigation in the present case. Admittedly, no such record of previous prosecution of Vineet Kahil (PW-6) has come on record CBI No.351/2019 Page 99 of 100 100 in the defence. Therefore, the said defence pleaded on behalf of A-1 is liable to be rejected. Therefore, it has to be observed that A-1 has failed to discharge the onus placed upon him in view of the presumption against him under Section 20 PC Act.
47.2 As far as A-2 is concerned, his plea of false implication is also not supported by any evidence on record. Rather, the entire evidence as discussed above proves the criminal conspiracy between him and A-1.
Conclusion
48. In view of above findings and discussions, I am of the considered opinion that the prosecution has successfully proved its case qua commission of U/s 7 and Section 13 (1)
(d) r/w 13 (2) of the Prevention of Corruption Act 1988 r/w 120 B against Fateh Chand (A-1) and u/s 120 B IPC r/w 13(1) (d) r/w 13 (2) of the Prevention of Corruption Act 1988 against Naveen Kumar (A-2) beyond reasonable doubt and they are, accordingly, convicted for aforesaid offences.
Announced in the open Court
on 3rd February 2023 (GAGANDEEP SINGH)
SPECIAL JUDGE, PC ACT, CBI-04
ROUSE AVENUE COURTS
NEW DELHI
CBI No.351/2019 Page 100 of 100