Delhi District Court
Cbi vs . Jasbir Singh Chawla & Anr. on 29 August, 2013
CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11
RC No.88 (A)/95
Dated:- 29.08.2013
1
IN THE COUR T OF RAJIV MEHRA
SPECIAL JUDGE CBI (PC ACT)
KARKARDOOMA COURTS : EAST DISTRICT
DELHI
AC No.58/11
RC No. 88(A)/95
CBI
VERSUS
1. Jasbir Singh Chawla,
S/o Late Sardar Gobind Singh Chawla,
R/o 2712, Bank Street, Karol Bagh,
New Delhi
2. Shoeb Ahmed,
S/o Late Nishar Hussain
R/o R-684, New Rajender Nagar,
New Delhi
JUDGMENT
Charge sheet in the present case has been filed against the two accused Jasbir Singh Chawla and Shoeb Ahmed under Section 120-B IPC and Section 12 of PC Act.
CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11 RC No.88 (A)/95 Dated:- 29.08.2013 2
2. The present case was registered initially against accused Jasbir Singh Chawla residing at Karol Bagh New Delhi on the basis of a written complaint dated 16.10.95 made by Karan Singh Tanwar MLA Delhi and Administrator Fish and Poultry Market Committee, Jama Masjid, Delhi. This complaint is Ex.PW7/A. It contains the allegations that Jasbir Singh Chawla submitted four applications on behalf of different parties and he was offering a bribe amount of Rs. 6 lac for the allotment of atleast three shops against three applications received in the office of the complainant vide Diary No. 444, 445 both dated 31.7.95 and 452 dated 2.8.95. It has been alleged in the complaint that despite refusal of the complainant to the offer of bribe amount Sh. Jasbir Singh Chawla told him that he would visit his private office at CB-77/A, Naraina, Delhi on 16.10.95 and would offer him an amount of Rs. 2 lac for the allotment of the shop and rest of the amount of Rs. 4 lac would be paid after receiving the allotment orders.
3. This case was entrusted to DSP CBI S.B. Sinha who formed a trap team and also obtained the services of two independent witnesses namely PW-2 S.C. Sharma and PW-3 Raj Kumar. As per prosecution case Sh. S.B. Sinha laid a trap and accused Jasbir Singh Chawla who offered a bribe amount of Rs. 2 lac to the complainant despite his refusal alongwith shoeb Ahmed was arrested in the presence of independent witnesses. This bribe CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 3 amount of Rs. 2 lac was seized vide recovery memo and annexure incorporating the number of all the currency notes recovered from the spot.
4. The prosecution case is that both accused entered into a conspiracy sometimes in July 1995 and in furtherance thereof Jasbir Singh Chawla submitted four applications in the allotment of the shops in the office of FPEM Committee Jama Masjid. As per prosecution case three out of these four applications were of the relatives of the accused Shoeb Ahmed and a cumulative offer of illegal gratification of Rs. 6 lac @ Rs. 2 lac per shop was decided between two accused persons and this offer of bribe was made first time to Mr. Tanwar on 13.8.95 and despite his outright refusal to accept the bribe Jasbir Singh Chawla informed him that he would offer him this amount of Rs. 2 lac on 16.10.95 at his private office at Naraina.
5. As per prosecution case the arrangement of the bribe amount of Rs. 2 lac was made by A2 Shoeb Ahmed who has asked his brother in law Mohsinuddin (PW-11) to withdraw this money from current A/C No.001062 of M/s Osama International in Bank of Baroda K.G. Marg, New Delhi. The prosecution case is that a sum of Rs. 1.5 lac was withdrawn on 13.10.95 and Rs. 50,000/- was withdrawn on 16.10.95. As per prosecution case Osama International was a partnership firm of A2 and his sister who was married to CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 4 Mohsinuddin (PW-11). As per prosecution case both accused visited the office of the complainant on 16.10.95 and offered him the bribe amount of Rs. 2 lac for the allotment of three shops at Gazipur Poultry Market who refused to accept this amount. The case of the prosecution is that Jasbir Singh Chawla kept on insisting the complainant to accept the amount and then as per the instructions of TLO S.B. Sinha, complainant asked the shadow witness S.C. Sharma present in the room to take the offered amount and count the same. Sh. S.C. Sharma thereafter gave a pre-appointed signal to the other members of the trap party waiting outside the house and both accused were arrested and currency notes were recovered. The personal search memos and site plan was prepared which was also signed by the other members of the trap party.
6. A separate charge was directed to be framed against each of the accused on 15.5.97 under Section 120-B IPC and for abetting the commission of the offence punishable under Section 7 of the Act by offering bribe amount of Rs. 2 lac to Public Servant Karan Singh Tanwar as a part consideration for showing favour in the allotment of the three shops.
7. To prove its case prosecution has been relying upon the following witnesses:-
:- PW-1 Roshan Lal Secretary Fish, Poultry & Egg Market Committee during the relevant period;
:- PW-2 Subhash Chand Sharma Shadow Witness;
CBI Vs. Jasbir Singh Chawla & Anr.AC No. 58/11
RC No.88 (A)/95 Dated:- 29.08.2013 5 :- PW-3 Raj Kumar Independent Witness and both PW-2 and PW-3 were arranged from the office of FCI;
:- PW-4 Smt. Naseema Hasina, one of the application Ex.PW1/A as per prosecution case was made in her name. She is the mother of Javed Hussain PW-9 who as per the prosecution case had accompanied the office of the complainant alongwith two accused on 16.10.95;
:- PW-5 Sh. Udayvir Chopra Clerk Bank of Baroda. This witness produced to CBI office on demand on 14.12.95 cheques involved in the case alongwith credit vouchers and statement of accounts. Both the cheques by which amount of Rs. 1.5 lac was withdrawn on 13.10.95, Rs. 50,000/- was withdrawn on 16.10.95 have been proved by this witness as Ex.PW5/A and Ex.PW5/B. This amount as per the prosecution case was arranged by A2 and was offered as bribe amount on 16.10.95 to the complainant;
:- PW-6 is Shoukat Hussain and as per prosecution case one of the application Ex.PW1/B was made for the allotment of the shop in Gazipur Market on 31.7.95 in the name of Ashfaq Hussain who was the father of this witness Shaukat Hussain. As per the statement of the witness PW-6 his father expired in May 1975 and the application Ex.PW1/B does not bear the signatures of his father;
:- PW-7 is S.B. Sinha TLO;
:- PW-8 is Inspector Dharamvir Negi who has
filed the charge sheet;
:- PW-9 is Javed Hussain who as per the case of the prosecution had accompanied the two accused on the date of 16.10.95 to the office of the complainant at Naraina and while two accused have gone inside and allegedly offered the bribe of Rs. 2 lac, he kept on waiting in the car parked outside the office.
PW-10 is complainant Karan Singh Tanwar; He has supported the prosecution case and stand by his complaint Ex.PW7/A. CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 6 :- PW-11 is Mohsinuddin who as per the prosecution story was brother in law of A2 shoebAhmed. As per prosecution case the amount of Rs. 2 lazc was withdrawn by him from the bank and handed over to A2. Witness has turned hostile saying that this amount was used by him for his own business and was not given to A2;
:- PW-12 is D.S. Shukla IO of the case;
8. The separate statements of the two accused under Section 313 Cr.P.C. were recorded. Accused Jasbir Singh Chawla claimed that it is a false case and complainant has misused CBI for his vested interest to gain free political mileage. Accused Shoeb Ahmed also claimed that it is the false case.
9. A1 J.S. Chawla has examined three witnesses in defence.
:- D1W1 is Sanjeev Kumar LDC Record Room Sessions Tis Hazari who produced the record of a case in CBI Vs. Mahesh Gulati & Anr. bearing RC No.IE/95/DLI which too was registered on the complaint of the complainant in this case. Accused was acquitted by the Ld. Court in that case. Record has been proved as Ex.D1W1/1;
:- D1W2 is Ishwar Dass Ex. Chairman City Zone, MCD and according to this witness A1 was appointed by him as a convener of Minority Cell Youth Congress for District Karol Bagh. The press release to this effect has been proved by him as Ex.D1W2/1. In cross examination this witness has stated that he does not know anything about this case;
CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 7 :- D1W3 is Ct. Lala Ram who produced the record of P.S. Naraina against the complainant and proved the same as Ex.D1W3/1;
10. A2 Shoeb Ahmed produced three witnesses in defence.
:- D2W1 is ASI Ranjeet Singh who produced the FIR register of the year 1995. As per this witness the RC 88/A/95 was recorded on 16.10.95 at 10.00 a.m. and copy of the same has been proved by him as Ex.D2W1/1;
:- D2W2 is ASI R.C. Gangwal, Malkhana Incharge CBI, ACB, New Delhi. He brought the Malkhana register of the year 1995 and record of the entry No. RC/88A has been proved by this witness as Ex.D2W2/1;
:- D2W3 is Vikas Mann LDC, ACB New Delhi. He produced the FIR register for the period of 1995 starting from RC No.109/A/95 and DLI till RC No.2(A)/95-DLI dated 10.1.95. He also produced the photocopy of the certificate proved as Ex.D2W3/1 of Rochnamcha Register certifying that the relevant record has been weeded out;
11. It is submitted by the Ld. PP that prosecution has duly proved its case through the testimony of PW-1 Roshan Lal Secretary Fish Poultry and Egg Market Committee that accused Jasbir Singh Chawla was visiting his office on 3-4 occasions during the relevant time and he was making inquiry about the procedure for getting the shop allotted. It is submitted by Ld. PP that PW-1 has testified that accused Jasbir Singh Chawla has moved four applications proved as Ex.PW1/A to Ex.PW1/D and all these four applications were entered into the office register and relevant entries to this effect have been proved as Ex.PW1/J to Ex.PW1/M. It is submitted by Ld. PP that CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 8 complaint Ex.PW7/A has been confirm by the complainant and it has been mentioned in it that initially the offer was made by accused J.S. Chawla while he visited the office of complainant at Ansari Road, Darya Ganj on 13.10.95 and his visit of this occasion and meeting with the complainant has been proved by the testimony of PW-10 Karan Singh Tanwar and has also been confirmed by testimony of PW-1 Roshan Lal.
12. It is submitted by the Ld. PP that the visit of the two accused to the office of the complainant on 16.10.95 has been duly proved by the testimony of complainant PW-10 and TLO PW-7 S.B. Sinha.
13. It is submitted by the Ld. PP that at the time of visit to the office of the complainant on 16.10.95 both the accused were carrying amount of Rs. 2 lac and this amount was offered to the complainant as bribe has also been confirmed by PW-10 and PW-7. It is submitted by the Ld. PP that fact of recovery of the amount of Rs. 2 lac from the spot has also been confirmed not only by PW-10 and corroborated by PW-7 but also corroborated by the two independent witnesses PW-2 S.C. Sharma and PW-3 Raj Kumar and also by PW-1 Roshan Lal who was summoned at the office at Naraina same day on 16.10.95 with the file of applications of allotment of shops, after arrest of the two accused.
CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 9
14. It is submitted that the recovery of the amount raises a presumption under Section 20 of PC Act against both the accused and accused Jasbir Singh Chawla has raised a false plea that the amount was offered as a party donation where as other accused Shoeb Ahmed did not offer any explanation for the same. According to the Ld. PP this explanation as offered by A1 is unbelievable.
15. It is submitted by the Ld. PP that even if the two independent witnesses have not been supporting the prosecution case completely but the same stands duly proved by the testimony of the complainant PW-10 which is also confirmed by the statement of PW-7 S.B. Sinha TLO and it also finds supports on all material points from the testimony of PW-1 Roshan Lal though he had been declared hostile and was cross examined by the Ld. PP for CBI on certain points. He has been relying upon Jasbir Singh Vs. State of Punjab 2011 (4) CC Cases (HC) 549 submitting that in this case conviction was recorded on the basis of sole testimony of complainant. He has also been relying upon Satish Chander Vs. C.B.I. 2011 (4) CC Cases (HC) 599. This was a case of our own High Court. Both the independent witnesses had turned hostile as in this case but still conviction was maintained believing the sole testimony of the complainant corroborated by TLO.
CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 10
16. It is submitted by counsel for A1 that A1 has been falsely implicated in the present case. He was not having any interest in either of the shops applied for nor is the case of the CBI that A1 in any manner was related to the money arranged to offer as bribe.
17. It is submitted that there was no procedure, rules and regulations and guidelines for the allotment of the shops. There was no transparency in the manner of allotment of the shops in Gazipur Poultry Market and this according to the Ld. counsel has been admitted by PW-1 Roshan Lal Secretary to the complainant and also by complainant Karan Singh Tanwar examined as PW-10 and IO D.S. Shukla examined as PW-12. It is submitted that this practice has also been observed by the Court in another case CBI Vs. Mahesh Gulati & Anr. RC No. 1 (A)/95 DLI wherein such like complaint was filed prior to the present case by the complainant K.S. Tanwar against his subordinate employee Mahesh Gulati and one more person and both of them were acquitted by the Court of Spl. Judge vide judgment dated 6.5.2002.
18. It is submitted that the amount of Rs. 2 lac was never offered by A1 as bribe amount for the purpose of allotment of the shops but on account of party donation and this fact has been admitted even by shadow witness PW-2 S.C. Sharma in cross examination.
CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 11
19. It is submitted that there is a delay in approaching the CBI as four applications were pending since 31.7.95 and 2.8.95 and FIR has been registered on 16.10.95. It is submitted that all these applications were within the knowledge of the complainant and the complainant could have outrightly rejected the applications instead of waiting upto 16.10.95 and delay caste a serious doubt about the truthfulness of the CBI case. Reliance has also been placed in this regard on State of Tamil Nadu Vs. S.Krishnamurthy JT 2002 (2) SC 173. In this case accused was charged with receipt of bribery amount of Rs. 300/-. The Trial Court convicted him. He was acquitted by the Hon'ble High Court and the judgment of High Court was upheld by the Hon'ble Suprme Court. The case of the CBI was that this amount of Rs. 300/- was demanded by accused as bribery for changing Patta. The plea of the accused was that it was given to him as donation towards Flag Day Fund. It was observed by the Apex Court that delay in approaching Anti Corruption Office by the complainant throws considerable doubt on prosecution case. The Court also found that it was an established practice to receive donations on Flag Day or Teacher's Day and correcting of Patta was not the sole responsibility of the accused.
20. It is submitted that PW-9 Javed was also one of the interested party as his mother PW-4 Nasima Hasina was also the applicant for one of the shop vide application Ex.PW1/A moved in the office of complainant . It is submitted that Javed has been made as a CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 12 witness and has been kept out of the net by the CBI deliberately. It is submitted that A1 was called in a pre-planned manner through PW-9 Javed on the pretext of helping the applicants and Javed was hands in gloves with the complainant.
21. It is submitted that as per the statement of PW-1 at the time of moving of applications Ex.PW1/A to D, 16 shops were lying vacant against 14 applications and there was no reason to withhold the allotment of the shops by the complainant who was the sole authority to allot these shops.
22. It is submitted that complainant has not produced any evidence to show that he is the Administrator and he is a public servant nor this fact has been verified by the I.O.
23. It is submitted that case is not supported by shadow witness PW-2 S.C. Sharma nor by other independent witness PW-3 Raj Kumar and both of them have come out with a different story other than the prosecution version which raises a serious doubt about the truthfulness of the prosecution version.
24. It is submitted that the complainant is in the habit of making false complaint. Before this case he also lodged one complaint in another matter CBI Vs. Mahesh Gulati (Supra ) almost with the same set of allegations. In that case both accused have CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 13 been acquitted by the Court and Court has also observed in that case that there was a practice showing that complainant was negotiating with the parties.
25. It is submitted that in this case too since the applications were kept pending for more than two and a half months, it is the possibility that the complainant might have been negotiating with the applicants, and when it was not materialized then out of fear of being exposed by A1, he falsely implicated him in the present case.
26. It is submitted that possibility of false implication of A1 at the instance of complainant cannot be ruled out because the complainant wanted to gain political mileage and publicity out of the incident. It is submitted that after A1 was apprehended in this case the matter was published through posters and other means and Ex.PW10/DA is one such poster taken out at the instance of the complainant.
27. It is submitted that complainant himself is involved in number of cases as detailed by D1W3 who brought the record of P.S. Delhi Cant of the cases against the complainant.
28. It is submitted that case of the prosecution is also not believable as there are number of contradictions in the statement of the witnesses on the same point. It is submitted that according to CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 14 PW-1 he reached at the residence of the complainant on 16.10.95 in between 11.00 a.m. - 12.00 pm and at that time CBI was counting the notes. It is submitted that according to PW-7 he alongwith other team members left the CBI office at 12.45 pm. It is submitted that according to IO PW-12 raiding party reached and took their position at 12.30 pm and he confirmed his statement more than once. It is submitted that even PW-2 S.C. Sharma shadow witness has deposed that they reached to the office of the complainant at Naraina at about 12.45 p.m. It is submitted that these contradictions only create doubt about the truthfulness of the prosecution case.
29. It is submitted that CBI in the present case has not followed the instructions given in the crime manual. The room in which the transaction has taken place was not searched prior to conducting trap or prior to the recovery of the bribe amount of Rs. 2 lac. It is submitted that witnesses were not searched for the reason as details of currency notes were already with the CBI and their aim was to arrest A1. It is submitted that as per the CBI case proceedings completed in the office of the complainant on 16.10.95 at 5.00 pm at Naraina. It is submitted that there is no possibility of completing the proceedings at 5.00 p.m. as it was involving 1200 currency notes, numbers of which were noted in Annexure A running into 12 pages and as per the claim of the CBI it was prepared at the spot. It is submitted it was not possible to complete the proceedings by 5.00 pm as claimed by CBI.
CBI Vs. Jasbir Singh Chawla & Anr.
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30. It is submitted that PW-2 was a stock witness and was joined by CBI only for the purpose of arrest of A1 and they even did not bother to verify anything in the proper and fair manner.
31. It is submitted that as per the allegations in the complaint Ex.PW7/A, A1 was to arrive at residential office and not at party office which is not a natural conduct. It is submitted that as per CBI Manual the spot conversation was supposed to be recorded but CBI in the present case has not recorded any conversation. It is submitted that once complainant has already refused the offer on 13.10.95 which is the case of the CBI then it is unlikely that A1 would again like to approach him. It is submitted that all these suggests that things were not moving in a natural course and it raises a doubt about the case of the prosecution.
32. It is submitted that the case of the CBI is that FIR was registered at 10.00 am on 16.10.95 which is most unlikely keeping in view the statement of PW-7 TLO who reached the office at 10.00 am, was introduced to the complainant by the SP who narrated him the matter and then he brought the complainant to his own room. It is submitted that FIR thus could not have been registered at 10.00 am as claimed. It is submitted that as per crime manual, CBI was to make preliminary inquiry in the matter before registration of the FIR CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 16 but no such preliminary inquiry was made in the present case because of the close relations between the complainant and the CBI.
33. It is submitted that CBI has not collected the record of any previous allotment of shops in Gazipur Market in order to show how they were being allotted to the earlier applicants.
34. It is submitted that false implication of A1 is politically motivated in the present case and it also find supports from the statement of PW-2 S.C. Sharma, who in cross examination admitted that when he made inquiry from the complainant he sensed that it is a politically motivated case. It only suggests that complainant was only willing in the false implication of A1 at any cost.
35. It is submitted that in his statement under Section 313 Cr.P.C. A1 has been asked to offer explanation in questions 45 to 50 put to him in the light of the testimony of PW-2 S.C. Sharma, shadow witness which suggests that money was offered as a party donation and by seeking explanation of the accused on these lines means that CBI has been admitting that offer was towards party donation which is not the case of the CBI put up against A1 in the charge sheet.
36. Ld. counsel has also been relying upon Subhash Chand Chouhan V. CBI 2005 (79) DRJ 644. It was a case under prevention of Corruption Act and the Hon'ble High Court in this case CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 17 posed serious doubts to the manner in which bribe was offered and received and also to the place where offer and receipt took place. In this case the prosecution did not take specimen voice sample of the accused or prosecution witnesses and tape recorded conversation was never sent for analysis of voice spectography. The Court held that no reliance can be placed on tape recorded conversation. The prosecution witness relied upon was found to be arrested in a NDPS case and he manage bail as a favourable report was furnished by DIG CBI. In these circumstances it was held that possibility of prosecution witness being under pressure of CBI or in any case being in such a position that he could be manipulated.
37. It is submitted by Ld. counsel that in the present case CBI has not collected any specimen handwriting or signatures of either of the applicants. It is submitted that no finger print impressions have been collected from the spot in this case of either of the two accused or of PW-9 Javed which could reflect that A1 was not involved in passing over the money to the complainant. No audio graphy or videography of the proceedings have been recorded and absence of the same makes the case highly doubtful.
38. It is submitted that no presumption under Section 20 POC Act can be raised in the present case simply on the basis of presence of A1 at the spot and recovery of the amount. It is submitted that A1 has rebutted the presumption that amount offered CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 18 was on account of party donation and this fact has been confirmed also by PW-2 S.C. Sharma in cross examination. This according to the counsel bring the case out of the rigours of POC Act as it would reflect that no bribe was ever involved.
39. Reliance has also been placed on Mumtaz Vs. State 2013 (JCC) 1308 by submitting that duty and approach of Trial Court has been explained in this case. It is submitted that it has been held in this judgment that Trial Court has to discern the truth after considering or evaluating the testimony of material prosecution witnesses on the touch stone of basic human conduct in probabilities and effect of deposition before the Court. It was held in this case that only legally admissible evidence can be made basis of conviction.
40. Reliance has also been placed on S.N. Parsad Vs. State of Bihar 1 (2001) CCR 525. It was a case under Section 12 PC Act 1988. It was found that prosecution has not proved charge beyond all reasonable doubt and accused was given benefit of doubt.
41. It is submitted by defence counsel that the present case also is full of contradictions regarding the timing of trap, search, recovery and registration of the FIR and other material points which throws considerable doubt to the truthfulness of the prosecution case. It is submitted that case of the prosecution is highly doubtful and is only to be dismissed.
CBI Vs. Jasbir Singh Chawla & Anr.
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42. It is submitted by the counsel for A2 that the prosecution has miserably failed to prove beyond reasonable doubt, the sequence of events which have lead to the commission of the offence. It is submitted that the case of the prosecution is filled with lacunas and there are material contradictions in the statement of the various witnesses which have been produced by the prosecution.
43. It is submitted that the very basis of the case of the prosecution is the submission of the applications for the allotment of shops. However the prosecution has even failed to prove as who had written the applications and who had filed the same. It is submitted that all the applications ExPW1/A to Ex.PW1D in the present case are hand written and they could easily have been sent to the FSL for comparison with the hand writing of the Accused No. 2 which would have clearly shown that he was not the author of either of the same and he had nothing to do with the same. It is submitted that the prosecution didn't even determine whether the signatures on the applications were indeed of the persons on whose name the applications had been filed. It is submitted that the IO of the case Sh. D.S. Shukla was examined by the prosecution as PW12 and he in his cross-examination admitted the fact that he had indeed collected the specimen hand writing of the accused (Internal Page 3 of cross- examination dt. 28/08/2012, 5th line from the top). It is submitted that CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 20 In view of this fact it is not believable that the IO would not have sent it to FSL for comparison, after having taken the specimen hand writing and the only reasonable conclusion that can be drawn is that he has suppressed the report of the expert as they proved that both the accused had nothing to do with applications and that they have been falsely implicated in this politically motivated case.
44. It is submitted that as per the story of the prosecution accused No. 1 told the complainant that he would come to the private office of the complainant with the purported bribe amount. It is submitted that according to the story of the prosecution this discussion had taken place in front of PW1. Roshan Lal, (Internal Page 4 of cross-examination by the Ld. PP dt. 04/05/1998, last 3 lines). It is submitted that the witness while testifying in court has specifically denied that fact that the Accused No. 1 told the complainant that he would come to his office situated at Naraina.
45. It is submitted that as per prosecution case the complainant approached CBI and then accordingly the trap was set up. It is submitted that in the present procedure and system of investigation followed in India certain cross checks have been put in place to make sure that there is no abuse of law. One of the most important cross-checks as has been recognized by the courts is the presence of independent witnesses. It is submitted that this has to be given even more emphasis during trap proceeding because it is only CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 21 the presence of these witness which can give an impartial view of the proceedings and put the true facts and the correct picture of the actual events before the court, since they, as the name itself suggests, are completely impartial and outside entities to any proceedings. It is submitted that in the present case none of the independent witnesses have supported the case of the prosecution. It is submitted that in fact the statement of both the witnesses shows that it is a false case and the chain of events as has been put forth by the prosecution at the behest of the complainant is not the true chain of events that had happened.
46. It is submitted that one of the major contradiction in the chain of events as has been put forth by the prosecution is in time frames. The Trap Laying Officer (TLO) i.e PW7. Sh. S.B.Sinha, (Internal Page 8 of cross-examination dt. 03/10/2012, 2nd para, 3rd line from the top), says that the complainant had come to CBI office at around 10:00 am (Examination in chief of PW10. Sh. K.S. Tanwar,, 2nd para). It is submitted that according to the complainant himself, he upon reaching the CBI office he went and met the SP. After a few minutes the SP called PW7. Sh. S.B.Sinha, to his office who read his complaint in the office of the SP and thereafter the FIR was registered. However the time of registration of the FIR shows that it was registered at 10:00 am itself (Ex D2W1/1). Thereafter both of them went to the office of the TLO i.e. PW7. Sh. S.B.Sinha, where the TLO made certain inquiries from the complainant.
CBI Vs. Jasbir Singh Chawla & Anr.
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47. It is further submitted that according to the complainant PW10. Sh. K.S. Tanwar, he went away and came back after two hours as he was instructed by the TLO. Therefore it is safe to assume that the complainant could not have been back by any time before 12:30. It is submitted that PW2. Sh. Subhash Chandra Sharma, and PW3. Sh. Raj Kumar, in this regard say that they reached the CBI office at 12 where they met the TLO and the complainant (Examination in chief of PW2. Sh. Subhash Chandra Sharma, & PW3. Sh. Raj Kumar, 1st para). It is submitted that according to the statement of the TLO at 12 noon the independent witnesses had arrived by which time the complainant was already there (Examination in chief of PW7. Sh. S.B.Sinha, 1st page 2nd para, 10th line). It is submitted that according to PW2. SH. Subhash Chandra Sharma, the trap team had left the office by 12 pm (Examination in chief of PW2. Sh. Subhash Chandra Sharma, dt. 16/11/1999, 1st page 2nd para) however PW3. Sh. Raj Kumar, states that he arrived at 12 pm, met the complainant and thereafter they left (Examination in chief of PW3. Sh. Raj Kumar,, 1st page). It is submitted that according to the TLO they departed from the CBI office at 12:45 pm (Examination in chief of PW7. Sh. S.B.Sinha, Internal Page 2 2nd para) as has been mentioned in the pre-trap memo (EX PW2/A). It is submitted that according to the version of the complainant i.e. PW10. Sh. K.S. Tanwar, after he reached the office of the CBI, the panch witnesses made enquiries from him, he CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 23 was given instructions by the TLO and thereafter the trap memo was prepared (Examination in chief of PW10. Sh. K.S. Tanwar, 2nd page 2nd para 10th line). It is submitted that going by the time frame earlier given by him there was no way that he could have left by 12:45 as has been stated in the pre-trap memo and by the TLO. PW2. Sh. Subhash Chandra Sharma, states that they reached the office of the complainant at around 12:40 pm (Examination in chief of PW2. Sh. Subhash Chandra Sharma, dt. 16/11/1999, 1st page 2nd para 3rd line), PW3. Sh. Raj Kumar, in this regards states that they reached around 1:20-1:30 pm (Internal Page 3 of cross-examination by the Ld. PP dt. 16/11/1999, 2nd para 1st line) whereas both the complainant and the TLO state that they reached around 1:20 pm (Examination in chief of PW10. Sh. K.S. Tanwar, 3rd page 7th line) (Examination in chief of PW7. Sh. S.B.Sinha, 2nd page 2nd para). It is submitted that however all of the above time lines are contradicted by PW-1 who states that he had reached the office of the complainant at about 11-12 am (Internal Page 7 cross-examination dt. 04/05/1998, last line), and he, according to the case of the prosecution was called there only after the trap proceedings had ended. It is submitted that the time line as given by PW-1 is also logically supported by the statement of the complainant that his private office at his home is open for the general public from 8-11 am (Internal Page 4 of cross-examination of PW10. Sh. K.S. Tanwar, dt. 10/06/2011, 2nd para 1st line).
CBI Vs. Jasbir Singh Chawla & Anr.
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48. It is submitted that there is contradiction regarding the time of arrival of the accused and the presence of other people in the office of the complainant. It is submitted that PW 2 S.C. Sharma, who is an independent witness, in his statement states that when he entered the office of the complainant, there were several people sitting there and the complainant sent them away saying that he had some urgent work and that they should all come back later (Internal page 1of statement of PW-2 Para No. 2 Line No. 4&5). It is submitted that as per the statement of PW-2, thereafter at around 1:20 pm the Accused No. 1 came to the office of the complainant. It is submitted that however according to the complainant and the TLO, when they entered, both the accused were inside (Internal Page 3 of statement of PW10. Sh. K.S. Tanwar, line no. 11) there and the complainant first spoke to the other people and when their work was done they left.
49. It is submitted that according to the story of the prosecution, both the accused were sitting inside from before and the Accused no. 1 asked the Accused no. 2 to get the money from his car, however this version has been contradicted by the independent witness who states that only Accused No. 1 had come in and that Accused No. 2 was arrested by CBI outside and brought in by the CBI (Internal page no. 4 statement of PW-2 Line no. 20 & 21). after the CBI officials had disclosed their identities. It is submitted that this story is also supported by PW9. Sh. Javed Hussain, who was CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 25 accompanying the two accused. It is submitted that PW9. Sh. Javed Hussain, in his statement in court has stated that Javed and Accused No.2 were standing outside smoking when some people came and started apprehending them, upon this Accused No. 2 became aggressive where as Javed on the other hand was calm. Subsequently they learned that the people apprehending them were CBI officials and they arrested Accused No.2.
50. It is submitted that there are further contradictions in the statement of witnesses in regards to the signal which was to be given to the trap party by the shadow witness who was sitting inside with the complainant and the TLO. It is submitted that PW2. Sh. Subhash Chandra Sharma, says that he gave the signal to the trap party by waiving both his hands above his head while he was sitting in his seat (Internal page no.4 statement of PW-2 line no. 18) whereas PW3. Sh. Raj Kumar, says that he came out and gave the signal (Internal page no.3 statement of PW-3 line no. 20). It is submitted that PW7. Sh. S.B.Sinha, who is the TLO says that he came outside and gave the pre-appointed signal which according to the trap memo (Ex PW2/A) was scratching his head with both his hands (Internal page no. 3 of statement of PW-7 line no. 21 & 22).
51. It is submitted that further there is discrepancy in the statement of PW-2, S.C. Sharma and the case of the prosecution regarding sitting arrangement. It is submitted that according to the CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 26 site plan prepared by the IO (Ex PW2/D) there were two chairs on the left side of the complainant which were occupied by PW-2 and the TLO, Sh. S.B.Sinha and the chair right opposite the complainant was occupied by Accused No. 2. It is submitted that however according to the statement of PW-2 he was the one who was sitting opposite the complainant and not Accused No. 2.(Examination in chief dt. 16/11/1999 Para 2 8th line from the top.)
52. It is submitted that according to the prosecution case apart from the three members of the trap team that were sitting inside, the rest of the members were waiting outside the office of the complainant for the signal which included PW3 Sh. Raj Kumar. It is submitted that in such a circumstance the members who were waiting outside are certain to have kept a close eye on the door of the office of the complainant waiting for the signal of PW2. It is submitted that if the prosecution version is believe to be true on this point then Accused No. 2 is supposed to come out to take out the polythene bag from the car and would definitely have been noticed by the members of the trap team waiting outside. It is submitted that however PW3 in his statement has denied seeing Accused No. 2 coming out of the office of the complainant. (Cross examination by the Ld. PP dt. 16/11/1999, paragraph 2, 6th line from the top) CBI Vs. Jasbir Singh Chawla & Anr.
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53. It is submitted that all the above said contradictions and deficiencies raises a serious doubt about the truthfulness of the prosecution case as sought to be projected against A2. It is submitted that it is settled law that where two views are possible the view favouring the accused must be taken. The reliance has been placed upon Dilip & Another v. State of M.P (2007) 1 SCC 450 and also upon Sunil Gangrade v. State of M.P 1997(2) MPLJ 133.
54. It is submitted that two independent witnesses are not supporting the prosecution case and this benefit should go to the accused. The reliance has been placed on D. Venkatasan Vs. State 1997 Cri. L. J. 1287.
55. It is submitted that in the present case CBI has also recorded the statement of the two accused under Section 161 Cr.P.C. and both of them were named as prosecution witnesses in the list of witnesses filed by the prosecution. It is submitted that this can only mean one thing, i.e. that the CBI realizing that it had a very weak case since this was a false case tried to make the accused witnesses and force them to depose against each other and when they both refused to give false statements, the CBI made both of them accused in the present case.
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56. It is submitted that the aforementioned fact is further substantiated by the by the role of Javed who was examined as PW-9. It is submitted that according to his statement u/s 161 Cr.P.C. (Mark-A) , which he denies making to CBI, he was one of the beneficiaries of the entire transaction as according to that statement one of the shops that were to be allotted was in the name of his mother. It is submitted that his case, according to the aforesaid statement, was the same as that of Accused No. 2, the only difference being that he didn't have money at that time so Accused No. 2 had arranged it. It is submitted that statement of PW-9 Mark A if believed to be true then he was very much a part of this conspiracy and should have been a co-accused in this case. It is submitted that since PW-9 did not defy the CBI, at that point of time, in helping them build this completely false case, he was made a witness whereas people who had the righteousness and a strong moral backbone to stick to the truth were indeed made an accused in the present case. It is submitted that however PW-9 also narrated the truth when he came to court and said that the purported statement (Mark-A) was indeed not made by him. It is submitted that the CBI was trying to use the same tactics with Accused No. 2 but when they realized that he was going to stick to the truth they made him an Accused in the present case.
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57. It is submitted that another point which raises a serious about the correctness of the investigation in the present case is that all the three IO's differ on the point of dates when the investigation was transferred from one to the other. It is submitted that the TLO PW-7 says that investigation was transferred from him to D.S. Shukla PW12 on 16/10/95 i.e. the date of the incident itself. It is submitted that PW-7 has been confronted with JC application for the accused dated 17/10/1995 and reply to the bail applications of both the accused dt. 21/10/1995 where he has signed as the IO of the case. It is submitted that PW12. Sh. D.S. Shukla, has testified that he received the investigation of the case on 24/11/1995 (internal page no. 1 of PW12. Sh. D.S. Shukla, Para 1 Line No. 2) and he transferred it to D.D. Negi (PW8) on 15/12/1995. It is submitted that PW-8 DD Negi has testified that he received the investigation only in February 1996(Internal page no. 1 of PW-8 Para 1 Line no. 1). It is submitted that the discrepancy between the statements of the various IO's of the case let alone the independent and public witnesses, is reason enough to create a serious doubt as to the genuineness of the complaint and a hush-up type of investigation that was carried on in this case.
58. It is submitted that another important question in the present matter is that of the source of money which was allegedly found by the trap team. It is submitted that the source of money as claimed by the prosecution is that it was taken out of the bank CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 30 account of M/s Osama International by Accused No. 2 with the help of PW-11. It is submitted that PW-5 Udaiveer is the concerned bank officer who submitted the relevant records to the IO. It is submitted that PW-5 has testified that he had handed over the two cheques Ex.PW5/A and Ex.PW5/B alongwith the credit vouchers and account statement (internal page no. 1 Statement of PW-5 Para no.1 Line 1). It is submitted that the credit vouchers and the account statement has been deliberately suppressed by the IO in order not to let the true facts come before the court. It is submitted that the account statement of the said account would have shown and corroborated the statement of PW 11 that he was regularly doing such transactions and withdrawing money from his wife's account through cheques signed by her for the purposes of his business. It is submitted that IO did not make attempts to verify from the bank that whether the GC notes that were seized were the same GC notes that had been withdrawn by the use of the two cheques Ex.PW5/A and Ex.PW5/B. It is submitted that this again was done very deliberately by the IO as he knew that it was a false and planted case and that such verification could lead to the discovery of true facts and would enable the accused to prove their innocence. It is submitted that none of the IO's in their statements have said that they had seized the cheques and there is also no seizure memo on record reflecting the seizure of such cheques.
CBI Vs. Jasbir Singh Chawla & Anr.
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59. It is submitted that though the case of the prosecution is that the entire money was arranged by Accused No. 2 yet PW12. Sh. D.S. Shukla IO has stated that Accused No. 1 had told him the bank from which the money was withdrawn and upon his pointing out the money had been recovered. However he has admitted that no pointing out memo was made in this regard. It is submitted that further this evidence of PW12. Sh. D.S. Shukla, has not even been put to the Accused No. 1 in his statement under Section 313 Cr.P.C. so it cannot be read in evidence against him or the co-accused.
60. It is submitted that the position of the money withdrawn using the two cheques is further clarified by the statement of PW-11 who is the husband of the signatory of the said two cheques. It is submitted that PW-11 has stated that the said two cheques were indeed encashed by him and the money there from was used by him for his own business purpose(internal page no. 2 statement of PW-11 line no. 10-14). It is submitted that the story of the prosecution on this point doesn't appeal to a reasonable mind. It is submitted that the story of the prosecution is that Accused No. 2 gave two bearer cheques signed by the wife of PW11. Sh. Mosinuddin, to withdraw the money instead of going himself. It is submitted that in case of a bearer cheque any one can encash the cheque so there was no need of Accused No. 2 sending PW11. Sh. Mohsinuddin, to encash it when he could have done it himself. It is submitted that further this evidence of PW-11 or any other CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 32 evidence with regard to the source of money has not even been put to the Accused No. 2 in his statement under Section 313 Cr.P.C. so it cannot be read in evidence against him or the co-accused.
61. It is submitted that the veracity of the investigation of the prosecution case becomes further doubtful as it is the own case of the CBI that there were several other witnesses who had signed the pre trap memo as well as the seizure memos who have not been examined by the prosecution and the fact that PW-9 Javed who was present at the scene of the occurrence has neither been mentioned in the statement of any witness or any documents that were prepared at the spot.
62. It is submitted that there is a contradiction In the prosecution case on the point relating to the arrest of the accused no.
2. It is submitted that both PW2. Sh. Subhash Chandra Sharma (internal page no. 4 Statement of PW-2 line no. 21) as well as PW9. Sh. Javed Hussain, (internal page no. 1 Statement of PW-9 para no. 1 line no. 8-14) specifically state that Accused No. 2 was arrested from outside the complainant's office. It is submitted that the story of the prosecution that both the accused were present in the office of the complainant is completely demolished in the light of above said statements of PW-2 and PW-9.
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63. It is submitted that PW3. Sh. Raj Kumar, specifically states that the complaint was not shown to him, (internal page no. 2 statement of PW-3 line no. 1). It is submitted that this further goes to show that pre trap proceeding weren't conducted properly and were done in a dubious and improper manner. It is submitted that PW3. Sh. Raj Kumar, further states that they were given no other instructions in the office of the CBI and were directly asked to sit in the car. It is submitted that this also points out to the fact that the pre- trap memo wasn't actually prepared before the trap and was only prepared after it to make it look like trap proceedings were done in a proper manner. It is submitted that these questions raise severe doubts on the case of the prosecution and point out to the fact that the entire trap was conducted in a clandestine manner and it was nothing more than a cover up for a politically motivated complaint. (The preliminary enquiry is mandated by the CBI manual in trap cases)
64. It is submitted that PW7. Sh. S.B.Sinha, states that the complaint of the complainant was taken to be true on the face of it as he was the administrator of the said committee (internal page no. 6 cross examination of PW-7 line no. 6) and (internal page no. 9 cross examination of PW-7 line no. 12). It is submitted that it would show that no preliminary enquiry was conducted by him before the laying of the trap as is necessary as per the law and practice.
CBI Vs. Jasbir Singh Chawla & Anr.
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65. It is submitted that further PW 12 states that he had recorded the statements of 3 of the 4 persons on whose names the application was purportedly submitted by Accused No. 1 since one of the applicants were dead (internal page no.1 statement of PW12. Sh. D.S. Shukla, para no. 2 line no. 5) . It is submitted that a perusal of the charge sheet would show that only two statements under Section 161 of the applicants have been filed alongwith the charge sheet and one of the statements has been concealed by the prosecution. It is submitted that this again goes to show that the investigation has not been done properly.
66. It is submitted that PW9. Sh. Javed Hussain, has stated in his statement that Accused No. 2 sat in the car on his insistence only and the same has been put to ACCUSED NO. 2 in his statement u/s 313 Cr.P.C. also (internal page no.1of the examination in chief of PW9. Sh. Javed Hussain, para no. 1 line no. 4). That PW9. It is submitted that PW-9 Javed Hussain has also stated that the discussion of party fund did not take place in front of Accused No. 2 and that Accused No. 2 had no idea that any sort of money was changing hands (internal page no.3 of cross-examination of PW9. Sh. Javed Hussain, 1st line).
67. It is submitted that the statement of PW9. Sh. Javed Hussain, has also been accepted by the prosecution to be true. It is submitted that the Prosecution, while conducting the statement of the CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 35 Accused under Section 313 Cr.P.C. had put to Accused No.2 the story of his arrest as has been narrated by PW9. Sh. Javed Hussain. It is submitted that it is a well settled principle of law that the prosecution has to prove the case that they have presented without any changes or alterations and any change of story by the prosecution creates serious doubts and is fatal to the case of the prosecution. It is submitted that this is not a small correction but it indeed changes the entire nature of this case, therefore having the effect of completely annulling the case of the prosecution. It is submitted that the questions 8 & 9 which were put to the Accused No. 2 show that the statement of PW 9 as given in court has been taken to be correct and true by this Hon'ble Court. It is submitted that it is settled law that only facts which have been proved can be put to the accused under Section 313 Cr.P.C. therefore while putting the questions to the accused the Hon'ble Court has accepted that the statement of facts as narrated by PW9. Sh. Javed Hussain, in his statement, which is corroborated by the statement of PW 2, are the true depiction of facts. It is submitted that the Hon'ble high Court of Delhi in a case titled Dev Raj Arora v. State (THR. CBI) bearing Crl. Appeal No. 301/1999 held that:
"It is well settled that only facts proved during trial which are incriminating in nature can be put to the accused and the facts that are not proved cannot be put to the accused."
CBI Vs. Jasbir Singh Chawla & Anr.
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68. It is submitted that it is a settled principle of law that the prosecution must prove its story and is not allowed to change its story. The prosecution must prove the exact circumstances that it has alleged. Reliance has been placed in support In the case of Bhagirath v. State of M.P AIR 1976 SC 975 submitting that the Hon'ble Supreme Court held that:
"The prosecution can succeed substantially proving the story it alleges. It must stand on its own legs. It cannot take advantage of the weakness of the defence. Nor can the court on its own, make out a new case for the prosecution and convict the accused on that basis"
69. It is submitted that the presumption given under Section 20 of the Prevention of Corruption Act is also not applicable. Section 20 clause 1 reads as follows:
"Where, in any trial of an offence punishable under Section 7 or Section 11 or Clause (a) or Clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain from himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may, without consideration or for a consideration which he knows to be inadequate."
CBI Vs. Jasbir Singh Chawla & Anr.
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70. It is submitted that the present clause is not applicable in the case at hand for the following reasons:
a. The framing of the section is crystal clear and it clearly states that for this presumption to be applicable it has to be proved that a public servant has accepted or obtained or has agreed to accept or attempted to obtain from himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person. It is submitted that the reasoning behind this clause is very clear. It is submitted that it is very difficult to prove that even though money has been found with a public servant, what purpose it had been taken for, hence the parliament in its wisdom has put in this section. The section is only with regards to presumption of 'mens rea' and that too is a rebuttable presumption.
b. The section states that 'where it is proved'. Therefore the prosecution, in order to invoke this presumption, has to prove all the surrounding circumstances and then this presumption can be used for the mental aspect. It is submitted that in the present case the prosecution has miserably failed to establish that the money was indeed brought by Accused No. 2 and given to the complainant. The prosecution in the present case has miserably failed CBI Vs. Jasbir Singh Chawla & Anr.AC No. 58/11
RC No.88 (A)/95 Dated:- 29.08.2013 38 to prove any of the alleged circumstances.
c. The Section clearly gives a rebuttable presumption by using the words 'unless the contrary is proved'. It is submitted that PW2 Sh. Subhash Chandra Sharma, has categorically stated in his statement that the money was given to the complainant by Accused No. 1 stating that it was for party fund and that the money was being given as donation to the party regardless of the fact whether the shops were allotted or not.(Internal page no. 2 statement of PW-2 Sh. Subhash Chand Sharma para no. 2 line no. 24-26). Therefore the presumption is clearly rebutted.
d. It is submitted that it is settled law that in a criminal trial the onus of proof cannot be shifted on the accused just because of a presumption clause. The prosecution still has to prove its case beyond reasonable doubt and that the story of the prosecution must stand on its own two feet.
71. The support is being drawn from the judgment in R.K. Dey Vs. State of Orrisa AIR 1977 SC 170 submitting that the Hon'ble Supreme Court held that:
"Three cardinal principle of criminal jurisprudence are CBI Vs. Jasbir Singh Chawla & Anr.AC No. 58/11
RC No.88 (A)/95 Dated:- 29.08.2013 39 well settled namely:
(i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defense version while proving this case;
(ii) that in the criminal trial the accused must be presumed to be innocent unless he is proved to be guilty;
and
(iii) that onus of prosecution never shifts."
72. It is submitted that the abovesaid observations pronounces the law on the point clearly that it is not at all obligatory on the accused to produce evidence in support of his defence and for the purpose of proving his version he can rely on the admissions made by the prosecution witness or on the documents filed by the prosecution. The prosecution has to stand on its own legs, and if it falls to prove its case beyond reasonable doubt, the entire edifice of the prosecution would crumble down".
CBI Vs. Jasbir Singh Chawla & Anr.
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73. The Ld. Counsel is also relying on Nirmalendu Biswas Vs.State 1987 CRI.L.J 1827 where it was held that:
"Prosecution must prove beyond reasonable doubt and onus of proof of the prosecution never shifts. The accused shall be presumed to be innocent unless the prosecution has proved that he was guilty. The prosecution must also prove by satisfactory and convincing evidence against the accused. The prosecution must produce the best evidence more particularly the evidence of persons who would have thrown a flood of light on the subject and whose evidence would clinch the issue."
74. It is submitted that the same view was also taken by the Hon'ble High Court of Delhi in State (Delhi Admin) Vs. Satish Chand Sharma 1987 CRI.L.J 1205.
75. It is submitted that the only piece of prosecution evidence which has not been contradicted by the any of the witnesses is the fact that money was indeed recovered. However in the present case there is absolutely no proof which has been established by the prosecution that the money was brought by the Accused No. 2. Further the Hon'ble Supreme Court has in a whole host of judgments that mere recovery cannot be sufficient to convict the accused in CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 41 absence of reliable evidence of the surrounding circumstances. It is submitted that the Hon'ble Supreme Court in State of Kerala & Anr. V. C.P. Rao (2011) 6 SCC 450 in Para 10 held that:
"Mere recovery of tainted money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of prosecution against the accused."
76. It is submitted that the same view has also been endorsed by the Hon'ble Apex Court in case of Suraj Mal v. State (Delhi Admin.) (1979) 4SCC 725 and C.M. Girish Babu V CBI (2009) 3 SCC 779.
77. It is submitted that another circumstance which raised doubts on the story of the prosecution is the fact that even though, at the relevant point of time CBI was using tape recording equipment in trap cases, still in the present matter no such equipment was used. The recording would have put forth the correct and precise picture of the conversation that had taken place. This is especially relevant because of the fact that PW2. Sh. Subhash Chandra Sharma, who was sitting in the room has stated a different version of the conversation than the complainant. In such a case the tape recording CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 42 would have helped in bringing forth the true picture, but in the absence of such evidence and considering the fact that the Investigating Agency even though it had a chance to get such clinching evidence but has not opted not to get it, questions must be asked of the manner in which the investigation was conducted and in the absence of such evidence the story of the prosecution cannot by any means be said to have been proven beyond reasonable doubt.
78. It is submitted that another point which creates a doubt on the story of the prosecution is that even though the car finds mention in the seizure memo, it doesn't find any mention in the site plan prepared by the IO. Further even though the seizure of the car was done but no documents relating to the ownership of the car and no proof whatsoever of the fact that the car belonged to Accused No. 2 was produced before this Hon'ble Court by the prosecution.
79. It is submitted that the present complainant had also filed another complaint against his sub-ordinate for corruption prior to the present complaint. In a similar fashion a trap was also set up in that complaint. There also the version of the complainant was not corroborated by the independent witnesses leading to the acquittal of the accused. On the page 5 of the judgment (ExD1W1/1), it is indicated that in that case also as in this case the story of the prosecution was that PW1 Roshan Lal had heard the initial offer of bribe but in both cases he cases stated before the Hon'ble Court that CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 43 the offer was not made in his presence. In that case in para 15 the Hon'ble Court had observed that when for the first time the complainant had refused to accept the bribe and had said he would not take it, then thereafter the act of offering the bribe again is unnatural as he was bound to know that he was dealing with an MLA and his act could get him into trouble. This situation is also applicable to the present case as according to the story of the prosecution when Accused No. 1 had offered him the bribe for the first time he had plainly refused yet he again came with the money, this act itself is very unnatural and this chain of events do not appeal to a reasonable mind. It is submitted that This only goes on to show that the complainant is in a habit of filing false complaints to get leverage over others and in these circumstances his testimony should not be believed, even more so in the light of the fact that the independent witnesses have contradicted his version.
80. It is submitted that only the IO and the complainant have supported the case of the prosecution and the other witnesses have contradicted them. In such a circumstance it must be considered that both the IO, as well as the complainant, are interested witnesses and in the light of statements of other witnesses their statements cannot be said to be trust worthy especially in light of the fact that none of the independent witnesses have supported the case of the prosecution. It is submitted that the Hon'ble Apex Court in the case of Ram Prakash Vs. State of Punjab 1972 Cri. L. J.1293 held that CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 44 The witnesses who are interested in the success of the trap their evidence must tested in the same way as that of any other interested witness and in a proper case Court may look for independent corroboration before convicting accused person. It is submitted that the same principles have also been upheld in the cases of Ismail Ibrahim vs. State 1975 Cri. L. J. 1335 and Dharshan Lal Vs. Delhi Adminstration AIR 1974 SC 218.
81. It is submitted that the prosecution has failed miserably in proving their case and the case presented by the prosecution is full of material contradictions to the extent that the entire story of the prosecution can be said to be destroyed. Therefore the accused must be acquitted.
82. This Court has heard the Ld. PP for the CBI and both the defence counsels at length and have perused the record carefully.
83. It may be observed that much stress has been placed to show that A1 has no interest either pecuniary or otherwise and he is also not related to the money and he has been implicated at the instance of the complainant to gain political mileage by him. No doubt in the present case except the complainant examined as PW-10 TLO as PW-7 and IO PW-8 and PW-12 all other witnesses have been declared hostile for one or the other reason but that does mean that evidence given by them loose the significance completely.
CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 45 The law is well settled on the point that even the evidence of a hostile witness can be made use of if found reliable and supportive to the prosecution case. The support may be taken if needed from the judgment in Himanshu @ Chintu V. State (2011) 2 SCC 36. It was held in this case that dependable part of the evidence of a hostile witness can be relied on. Similarly in Bhagwan Dass V. State 2011 (3) CC Cases (SC) Page 61 it was held that it is the duty of the Court to separate the grain from the chaff.
84. The testimony of PW-1 sets the tone of the whole case qua involvement of A1. It gives material collaboration to the statement of complainant PW-10 Karan Singh Tanwar. It may be noted that in the present case PW-1 Roshan Lal is the Secretary to the committee of which the complainant PW-10 Karan Singh Tanwar was the Administrator. The case of the prosecution is that A1 first approached PW-1 Roshan Lal in his office for the allotment of the shops and he also brought all the four applications Ex.PW1/A to Ex.PW1/D in the office on 31.7.95 and 2.8.95. The testimony of PW-1 on these points is unrebutted and cannot be lost sight of. It may be seen from the testimony of PW-1 Roshan Lal that it was only A1 alone who was coming in the office of the complainant earlier on more than 3-4 times before applications Ex.PW1/A to Ex.PW1/D were brought by him in the office for allotment of the shops. PW-1 testified that A1 approached him in the office to know the procedure of the allotment of the shops. He also testified that A1 CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 46 rang him once or twice in this regard. It has been testified by PW-1 that A1 also wanted to meet the complainant. There is no challenge to this part of testimony of PW-1 or to the visits so deposed by PW-1 on number of occasions. The unrebutted testimony of PW-1 on the point clearly establish that A1 was involved in the transaction since inception even much prior to the time when applications were brought by him in the office to PW-1 for the allotment of four shops in Gazipur Market. The testimony of PW-1 proves that A1 was actively initiating and following the office right from the beginning. Although PW-1 Roshan Lal has been declared hostile, he has admitted the visit of A1 on 13.10.95 in the office at Ansari Road saying that on that day he met with the complainant Karan Singh Tanwar. Perhaps it is correct that Jasbir Singh Chawla i.e. A1 offered Rs. 2 lac to Mr. Tanwar before the allotment and promise to pay remaining 4 lac after the receipt of the allotment order. It has also been testified by PW-1 Roshan Lal that on 16.10.95 he went to the office of the complainant at Naraina where he found complainant and both accused and 12-13 other persons present who were CBI officials and they were counting GC notes. The unrebutted testimony of PW-1 proves the keen interest being shown by A1 in the transactions since very beginning. The testimony also meets the challenge of defence that A1 was not having any personal interest in the matter. No reason has been explained by A1 during the course of arguments for showing so much interest in allotment of the shops without having any interest in the same. The argument that A1 was not having any personal interest is CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 47 only to be rejected in the light of the above said testimony. The testimony of PW-1 proves beyond that there was some undisclosed interest of A1 in the matter that was he alone was pursuing the matter in the office of the complainant since beginning tirelessly.
85. The plea that A1 has been falsely implicated to gain political mileage is not acceptable and is contrary to the evidence on record. The complainant Karan Singh Tanwar has been examined as PW-10. In the witness box he stand by his complaint Ex.PW7/A. It has been testified by him that A1 had moved four application no.444 and 445 on 31.7.95 and 452 and 453 on 2.8.95. He testified that A1 insisted that he should be given atleast three shops for which applications were made vide entry no.444, 445, 452 and 453. It has been testified by PW-10 that A1 further said to him that he would pay Rs. 6 lac to him for three shops - Rs. 2 lac in advance and Rs. 4 lac on receiving allotment letter . It has been testified by PW-10 that he refused the offer. It has been testified that he met him on 13.10.95 at his Darya Ganj office and left saying that he would visit his office at Naraina with Rs. 2 lac.
86. In his deposition complainant has also deposed about the filing of his complaint in CBI office on 16.10.95 and laying of trap and arrest of the two accused in his office alongwith the bribe amount of Rs. 2 lac being offered to him. This testimony of PW-10 has also been corroborated by TLO PW-7 S.B. Sinha. Although the CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 48 independent witness PW-2 S.C. Sharma and PW-3 Raj Kumar have been un-supportive to the prosecution case but they confirmed to the fact they had come to the office at Naraina alongwith the raiding party on 16.10.95 and they also confirm to the fact of recovery of Rs. 2 lac in their presence which fact has also been confirmed by PW-1 Roshan Lal.
87. The plea that even PW-2 has admitted that in the conversation with the complainant that it is a politically motivated case is only to be rejected for the reason that PW-2 is a win over witness and distorted his statement to suit more to the accused than prosecution. No credence can be given to this part of the statement of PW-2.
88. Similarly the plea that A1 has been falsely implicated to gain publicity by the complainant is only to be rejected. It cannot be lost sight of that complainant and A1 both belong to two rival political parties and this type of incident is definitely bound to generate some kind of publicity. There is nothing to suggest on record that publishing of posters of the incident had anything to do with the false implication of A1 in the present case. If the incident has been published through posters and other means then it does not mean that gaining publicity was the motive behind for implication of A1 in the present case.
CBI Vs. Jasbir Singh Chawla & Anr.
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89. The submission that prosecution case should be discarded for the reason that the two independent witnesses do not support the case completely is only to be rejected. No doubt that the two independent witnesses have been declared hostile but that by itself would not be a reason to dismiss the case of the prosecution if it is otherwise believable and inspires confidence. The support may be derive from State of U.P. vs. Zakaulla, 1998 I AD (SC) 116 where it was held that conviction can be based even on the evidence of TLO without corroboration. Similarly in the Judgment in Rajinder Singh Mehta vs. CBI 2013 IV AD (CRI.)(DHC) 77 the conviction based on statement of complainant and also of the testimony of one of the witness in the trap proceedings was upheld. TLO had expired and could not appear in the course of evidence.
90. The plea that A1 has been falsely implicated at the instance of the complainant in league with PW-9 Javed is only to be rejected being far fetched and is based purely on fiction and imagination. PW-9 Javed did not support the prosecution in the witness box. He was out and out supporting the two accused deposing falsely that he was sitting in the shop when A1 approached him on 16.10.95 to drop him at Naraina as he was to give party donation and A2 met them on the way and all three of them came to the office of the complainant. This was not the original statement given by him to the CBI under Section 161 Cr.P,C. where his statement was that his mother was one of the applicant for the shop CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 50 and moved one application Ex.PW1/A. His statement was that A2 was his relative and as per his statement on 16.10.95 he met A1 and A2 when they were coming to the office of the complainant on the way and alongwith them he came to the office of the complainant at Naraina where two accused went inside and he remained outside.
91. In view of the above said position when PW-9 is not supporting the prosecution case at all and is making all out effort to see that both accused with the help of his testimony may be given benefit to the extent possible, the plea that he was in league with CBI to implicate A1 is devoid of any merit. No such suggestion has been given to PW-9 by the counsel for A1 to this effect to substantiate his defence.
92. The plea that role of PW-9 was akin to that of A2 and he should also be involved as a co-conspirator as one application was also moved on behalf of his mother and he has been let off only for the reason to falsely implicate A1 is only to be rejected being meritless and to be termed as a figment of imagination. First of all no suggestion on these lines have been put to PW-9 in his cross examination and secondly even otherwise on record there is substantial difference in the role of two accused and PW-9. As per the investigation the mother of the PW-9 was one of the applicant for application Ex.PW1/A but role of PW-9 was that on 16.10.95 he has simply accompanied the two accused and when the two accused CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 51 went inside and offered bribe of Rs. 2 lac PW-9 remained outside the office in the car. No parity can be drawn in the role of PW-9 and of the role of two accused. Neither PW-9 had any role in the arrangement of the amount nor he had any role in offering of this amount to the complainant.
93. It is submitted that PW-2 S.C. Sharma shadow witness has stated that there was no talk of offering any bribe amount and this amount was offered as per him only as a party donation saying that it has nothing to do with the allotment of the shops and prosecution has no other independent evidence to show that this amount was offered by him as bribe amount for the purpose of allotment of shops. This plea is only to be rejected devoid of any merit. Role of PW-2 in the witness box is more to defeat the prosecution case. The statement of complainant PW-10 and PW-7 are specific regarding the role and offer made by A1 to the complainant. The statement of PW-10 also finds support from the statement of PW-1 roshan Lal when he said that A1 in meeting with him wanted to meet the complainant and also admitted that he talked about making some Sewa Pani to him which according to him was perhaps to offer Rs. 2 lac as initial brine amount followed by payment of Rs. 4 lac after orders of allotment are issued. The role of A1 in offering the bribe to the complainant is specific and clear and no credence can be given to the contrary statement to this effect given by PW-2 S.C. Sharma.
CBI Vs. Jasbir Singh Chawla & Anr.
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94. It is submitted that complainant is in the habit of making false complaint of this nature in order to gain publicity. It is submitted that one such complaint CBI Vs. Mahesh Gulati RC 1/95 DLI was filed by him against one of his subordinate and one more person in which the Court of Special Judge has acquitted both the accused vide judgment dated 6.5.2002 and found the testimony of the complainant unworthy of reliance. In defence A1 has also summoned Sanjeet Kumar LDC Record Room Sessions as D1W1 who has brought the record of the above said case of CBI Vs. Mahesh Gulati and has proved the same as Ex.D1W1/1.
95. As may be seen from Ex.D1W1/1 the Court in that case found material improvements made by the complainant and also found CBI withholding of crucial evidence and as such Court acquitted the accused however there is no law to the effect that if the complaint of a person in a case is not found to be truthful then he is to be branded as untruthful in every case. Each case has to be appreciated on the facts and merits of its own. Support may be derived from Megh Singh Vs. State of Punjab AIR 2003 SC 3184. It was held in this case that circumstantial flexibility, one additional or different fact may make a world of difference between the conclusions in two cases or between two accused in the same case. It was held that each case depends on its own facts and close similarity between one case and another is not enough because a CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 53 single significant default may alter the entire aspect. It was held that it is more pronounced in criminal cases where the backbone of adjudication is fact based.
96. The above said observations in the considered opinion would befittingly deal with the objections sought to be raised by the defence seeking to draw parallel to the case of CBI Vs. Mahesh Gulati (Supra). The facts of the two cases are different. In the case of Mahesh Gulati the case was initiated against the subordinate staff and one other person. The present case is based on its own facts and to be dealt on the basis of the merits and evidence produced in this case.
97. Contradictions regarding the timings of the trap and other related matters and even regarding the registration of the FIR at 10 am on 16.10.1995 are natural to occur and case cannot be dismissed for the reason of the same. The accused cannot derive any benefit of the same. These contradictions are not so much glaring in nature for which reason the whole prosecution case should be disbelieved and thrown out. Even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals as held in State of UP V. M.K. Antony AIR 1985 SC 48.
CBI Vs. Jasbir Singh Chawla & Anr.
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98. It has been submitted that A2 has been falsely implicated in this case. There is no reason for the false implication of A2 in the present case. A2 was a totally stranger to the complainant. He was first time coming to the house of the complainant on 16.10.1995 alongwith A1 and PW-9 Javed. It has been deposed by both PW-7 and PW-10 that A2 on the asking of A1 had gone outside the room and brought one pink colour bag and gave this bag to A1 and A1 offered the amount to the complainant. The role of A2 is apparent and clear. The plea that statement of PW-2 and PW-9 seriously dent the prosecution case regarding the role of A2 in the transaction and place of his arrest is only to be rejected for the reason that both PW-2 and PW-9 are win over witnesses and their statements favouring accused is only to be disbelieved in comparison to the statements of PW-10 complainant Karan Singh Tanwar and PW-7 TLO S.B.Sinha which is more trustworthy, reliable and convincing.
99. The case of the prosecution cannot be disbelieved and thrown out for the reason that the prosecution witness has not been supportive to the case that how the bribe amount of Rs. 2 lac was arranged by A2. As per prosecution case PW-11 was such witness. This witness as per the case of the prosecution withdrew the amount of Rs. 2 lac against two cheques Ex.P5/A and Ex.PW5/B and handed over the same to A2 which was used by him as bribe amount. In the witness box he has resiled from his statement and stated that this amount was used by him for his own business purpose. Admittedly CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 55 there is no other evidence to connect the source of the amount and A2. But at the same time it also cannot be lost sight of that the present is a case of offering of bribe to a public servant and accused has been charged for the offence u/s 12 of P.C. Act, 1988 and Section 120-B IPC. The presence of both the accused at the spot offering this amount has been confirmed by both the complainant and TLO. The amount was also recovered from the spot. In the light of this position the case of the prosecution cannot be thrown out only for the reason that prosecution was unable to prove the fact of source of money arranged for the transaction in the present case.
100. It has also been argued by counsel for A1 that investigation is tainted as CBI deliberately has not collected the specimen handwriting of the persons who moved the applications Ex.PW1/A to Ex.PW1/D or of the accused or of PW-9 Javed for comparison to prove their interest in those shops. One has to bear in mind that present is not a case of cheating or forgery where these facts may be relevant for the purpose of proving charge.
101. It is submitted that investigation is tainted as the case is that 1200 currency notes were brought to offer as bribe amount totalling Rs. 2 lac, which were noted down in an annexure running into 12 pages claimed to be prepared at the spot alongwith recovery memo. It is submitted that as per own case of the prosecution the trap proceedings begin around 1.30 pm and concluded at 5.30 pm. It CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 56 is submitted that keeping in view the large number of currency notes and noting down their numberd and details in annexure it was not possible to complete the proceedings by 5.30 pm and this raises a serious question about the truthfulness of the prosecution version.
102. The above plea is devoid of any merit. In recovery memo itself it has been mentioned that different team members were involved in preparing the annexure A and counting the notes. There were number of trap team members and if they are involved then counting and preparing the annexure by 5.30 pm is not impossible.
103. The plea that all the members of the trap team were not examined and it would make prosecution case weak is only to be rejected being without merit. The prosecution is not obliged to examine all the witnesses taking part in trap proceedings. It is the own prerogative of the prosecution to decide to which of the witness they want to examine to support the case. The Court is to see whether the witness examined proves the case or not. There is no law that case of the prosecution to be termed as unreliable for the reason that all the trap team members were not examined. In Bunty @ Guddu V. State of MP 2003 (3) CC Cases SC 306 the plea was that non examination of certain person present at the place of occurrence would demolish the prosecution case. It was held that public prosecutor is expected to produce evidence in support of the prosecution. It was held that if there are too many witnesses on the CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 57 same point, the public prosecutor is at liberty to choose two or some amongst them alone so that the time of the Court can be saved.
104. The plea regarding the non compliance of crime manual instructions cannot vitiate the case if otherwise if it is found convincing and reliable. Similarly the plea that both accused have also been projected as witnesses and CBI has recorded their statements under Section 161 Cr.P.C for the reason that CBI case was weak on merit is only to be rejected. PW-8 D.D. Negi IO had filed the charge sheet and as per him it was by mistake only. In view of this position nothing more can be permitted to be read into on this aspect of the matter.
105. It has also been submitted that no document has been produced on record by the prosecution to show that complainant was the Administrator or a public servant. The capacity of the complainant as an Administrator has not been questioned anywhere in the entire case. In examination in chief it has been deposed by PW-1 and PW-7 and PW-10 that complainant is the Administrator. This authority has not been challenged and remains unrebutted.
106. It has also been submitted that there is a delay in FIR as out of the four applications two were moved on 31.7.95 and other two were moved on 2.8.95 whereas FIR is of the date of 16.10.95. However evidence of PW-1 on record helps to appreciate the CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 58 position in this regard. It has been deposed by him that A1 met with the complainant on 13.10.95 and talked to him about the offer. Similarly in complaint Ex.PW7/A the averment is that this offer was made to the complainant by A1 first time on 13.10.95 and he has asked to return on 16.10.95 alongwith initial bribe amount of Rs. 2 lac and representative. In view of this position the argument of any delay is not substantiated on record by any evidence and is rejected. There is no delay and FIR has been registered within three days of the offer by A1 to complainant.
107. The fairness of investigation has also been challenged amongst others on the ground that IO has not collected past record of the other shops allotted in the marked by the complainant. In the considered view of this Court the case is fact based and find reliable evidence in support thereof and as such it cannot be dismissed as asked for on this ground.
108. No doubt that PW-12 IO D.S. Shukla during cross examination has replied that he collected the specimen handwriting of A1 which is not even the case of the CBI and similarly he is also faulted with the answer regarding the source of money which as per him was attributed to A1 when it was the case of the CBI that this source of money was originating from A2 only but these replies to be considered as inadvertent mistakes and no benefit of the same can be given to the accused. While appreciating the evidence of PW-12 CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 59 D.S. Shukla one has to keep in mind that there was a sufficient time gap in the incident and recording of his evidence. Even otherwise these replies is not so material and capable on the basis of which whole prosecution case should be discarded as claimed.
109. In the course of arguments much stress was put by the counsels that both accused in statement u/s 313 Cr.P.C. have been given suggestion on the line of the statement of PW-9 Javed that A2 was not coming to the spot and he met PW-9 and A1 per chance when they were coming to the office of complainant and also to A1 in the light of statement of PW-2 S.C. Sharma that amount was pass on by A1 to the complainant not as bribe amount but as party donation. It is submitted that by putting these questions the prosecution would amount to admitting the defence of both the accused. It is submitted that prosecution himself is not consistent and sure of its own case against the two accused and benefit of the same should be given to the two accused.
110. Law mandates that by recording the statement u/s 313 Cr.P.C. all the incriminating evidence appearing against an accused shall be put to him to seek his explanation before it is used against him in a judgment. In the present case PW-9 Javed was cited as one of the prosecution witness in the list in the charge sheet. The claim of the CBI is that PW-9 has made statement under Section 161 Cr.P.C which is mark 'A' wherein he stated that he had accompanied CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 60 to the private office of complainant alongwith the two accused on 16.10.95. He also stated that the two accused went inside the office and arrested whereas he waited outside kept sitting in the car in which he had come alongwith the two accused.
111. While appearing in the witness box PW-9 has testified that he was sitting in his shop at Sadar Bazar when A1 had come to him and asked him to accompany to the place of complainant and while on the way A2 happened to meet them and he too accompanied them. After this he was declared hostile and Ld. PP subjected him to cross examination and confronted him with his statement u/s 161 Cr.P.C. mark A. While recording the statement of A2 under Section 313 Cr.P.C the portion of the evidence of PW-9 confirming his visit alongwith the two accused to the office of complainant at Naraina has been put to A2.
112. It is submitted by the counsel that it would amount that A2 has no role in conspiracy and putting up this part of evidence would mean that prosecution admits the defence of the A2. In the considered view of this Court this argument is far fetched and is only to be rejected. The defence cannot take any benefit of the questions put to A1 and A2 in their statement u/S 313 Cr.P.C. on the lines of testimony of PW-2 S.C. Sharma and PW-9 Javed. Before PW-9 was declared hostile his testimony at least bring the fact on record that he alongwith the two accused on the date of 16.10.1995 had come to CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 61 the place of complainant. The assessment of the explanation offered by the accused in his statement is only relevant for the purpose of final judgment and it does not mean that prosecution is admitting anything from out of it. Similar is the position to the questions put in this regard to A1 in his statement relating to the testimony of PW-2 S.C. Sharma is concerned.
113. The recording of the statement u/s 313 Cr.P.C. is a duty of the court and by the amendment no doubt the prosecution as well as the defence has been casted a duty to assist preparation of the statement and explanation offered by the accused but that does not dispense with own requirement of the Court of recording the statement, putting all the incriminating evidence to accused before using the same as evidence against him. It cannot be said that by putting the evidence of PW-9 so far as his visit alongwith two accused the office of complainant was not incriminating evidence and so was the position with evidence put to A1 of the testimony of PW-2 S.C. Sharma. The putting of the facts of the testimony of PW-2 and PW-9 to A1 and A2 to seek their explanation do not amount to admission of the defence on the part of the prosecution. The only requirement of section 313 Cr.P.C. is that before using any evidence/circumstances against the accused he should be given opportunity to explain about the same.
CBI Vs. Jasbir Singh Chawla & Anr.
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114. It was held in Gian Chand & Ors. vs. State of Haryana 2013 VIII AD SC 92 (para 19 page 100) that so far as Section 313 Cr.P.C. is concerned, undoubtedly, the attention of the accused must specifically be brought to inculpable pieces of evidence giving opportunity to offer an explanation if he chooses to do so. The court in this case also referred to judgment in Ashraf Ali vs. State of Assam (2008) 16 SC 328 where a similar view was reiterated by the Apex Court observing that all the material circumstances appearing in the evidence against the accused are required to be put to him specifically and failure to do so amounts to serious irregularity vitiating trial, if it is shown that the accused was prejudiced. The court also relied upon the judgment in Shivaji Saheb Rao Bovade & Anr. vs. State of Maharashtra AIR 1973 SC 2622 where it was held that basic fairness of a criminal trial may gravely impairing the validity of the trial itself consequential miscarriage in court. It was held in this case, however, that where such an omission has been occurred, it does not ipso facto vitiate the proceedings and prejudice occasioned of such defects, must be established by the accused.
115. In Paramjit Singh @ Pamma vs. State of Uttrakhand AIR 2011 SC 200, it was held by the Hon'ble Supreme Court that Section 313 may take obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 63 questioned or examined on a particular circumstance, instead he must show that such non-examination has actually ad materially prejudice him and has resulted in failure of justice. It was held that in other words, in the event of inadvertent omission on the part of the court to question the accused on any incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused.
116. The testimony of PW-10 in the present case sufficiently establish the prosecution case. It is also confirmed by PW-7 S.B. Sinha and this testimony also has support on almost on all material points from the testimony of PW-1 Roshan Lal. The amount of Rs. 2 lac has been recovered from the spot. The defence does not dispute the presence of the two accused and the recovery of this amount. The only explanation offered by A1 is that it was on account of party fund which is not believable for the reason that complainant and A1 belong to the two different political parties BJP and Congress and there was no reason for A1 to offer the amount of Rs. 2 lac as party donation to complainant. The plea is false and is dismissed. In offering this amount he was also assisted by A2 present in the room alongwith him at the time when both were trapped and apprehended by the CBI. It has been established beyond doubt that this amount was being offered by two of them as part consideration of the total amount of Rs. 6 lac for the allotment of the three shops as applied in the office of the complainant who was the Administrator and was CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 64 having the authority to allot the shops. One of the charge against the two accused is of being in conspiracy. There is sufficient evidence to show that both the accused had come to the office of the complainant on 16.10.95 at Naraina together. They offered the bribe amount of Rs. 2 lac. It shows that they were in agreement and working together to achieve the goal of getting shops allotted even if they have to offer the bribe for the same. The testimony of PW-10 complainant Karan Singh Tanwar proves beyond doubt that amount of Rs. 2 lac was offered as gratification with a motive to get the shops allotted. It is a case of reverse trap. The conduct of the two accused would be construed as amounting to the commission of the offence of abetment of the offence punishable under Section 7 of PC Act, 1988.
117. Both the accused are held guilty for the offence u/S 12 POC Act 1988 and under Section 120-B IPC. Both are convicted accordingly.
Dictated and announced in the open Court on 29.08.2013.
( RAJIV MEHRA ) SPECIAL JUDGE CBI (PC ACT) EAST DISTRICT KKD COURTS: DELHI CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 65 IN THE COUR T OF RAJIV MEHRA SPECIAL JUDGE CBI (PC ACT) KARKARDOOMA COURTS : EAST DISTRICT DELHI AC No. 58/11 RC No. 88(A)/95 C.B.I. Vs.
1. Jasbir Singh Chawla, S/o Late Sardar Gobind Singh Chawla, R/o 2712, Bank Street, Karol Bagh, New Delhi
2. Shoeb Ahmed, S/o Late Nishar Hussain R/o R-684, New Rajender Nagar, New Delhi ORDER ON SENTENCE Heard the Ld. PP and the counsels for both the convicts on the point of sentence.
CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 66
2. It is submitted by the Ld. PP that corruption has become a gigantic problem and it has spread everywhere. According to him it has deep and pervasive impact on the functioning of the entire country. He has been relying upon State of M.P. vs. Shambu Dayal Nagar AIR 2007 SC 163. It is submitted that no leniency should be allowed in the matter related to corruption. He is also relying upon Narendra Champaklal Trivedi & Ors. vs. State of Gujarat 2012 VI AD (SC). According to the Ld. PP the person involved in corruption needs no sympathy.
3. He prays for maximum punishment for the two convicts in this case as according to him they are involved in more heinous kind of a conduct of making a public servant corrupt by offering bribe to him.
4. It is submitted by the Ld. counsel for convict Jasbir Singh Chawla that he is aged about 58 years. He has got grand daughters. It is submitted that by imposition of punishment not only the convict but his whole family will be getting effected. It is submitted that his mother is aged about 86 years and he has been looking after her. He himself is a diabetic patient. He is never involved in any other criminal case and having a clean past. It is submitted that benefit of Probation Act may be given to this convict and a lenient view may be taken.
CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 67
5. It is submitted by the counsel for convict Shoeb Ahmed that he is not a previous convict. He faced the trial for the last 17 years and during trial he was continuously appearing without any fail. There is not even a single complaint against him from any corner. He is a young man of about 45 years of age. He is having one school going son of 11 years age and a young wife and the family is solely dependent upon him. He is settled in business and presently running a lot of foreign exchange for the country and also having a big Industry employing hundreds of employees and in case he is sentenced to imprisonment it will not effect only to him and his family but also to all his employees as no one is there to look after the business in his absence so efficiently. It is submitted that being a first offender he should be given benefit of Section 360 Cr.P.C. and also of the provisions of Probation of Offenders Act.
6. It is submitted by the Ld. defence counsel that even where the minimum punishment has been prescribed for the offences there is no bar of grant of benefit of probation. In support he has been relying upon Jogender Singh vs. State of Punjab 1980 Cr.L.J. 1218 (FB), Ishwar Dass vs. State of Punjab AIR 1972 SC 1295, Jagat Pal Singh & Ors. vs. State of Haryana 1999 SCC (Crl.) 1313, State of U.P. vs. Ranjit Singh 1999 Cr.L.J. 1830, Budh Ram vs. State of Rajasthan 1996 Cr.L.J. 1243, (Rajasthan High Court), N.M. Parthasarthy vs. State 1992 (1) Crimes 1 and Commandent 20 Bn. ITBP vs. Sanjay Manjhola 2001 (2) JCC (SC) CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 68 21 and also on Vimal Kishore Pandey vs. CBI 2013 (3) JCC 1736.
7. The problem of corruption has maximum presence in the country. Irony is that everyone seems to be comfortable in this country in most of the situations to get his work done by giving and receiving the amount even when no money is supposed to exchange hands and work is supposed to be done in a lawful manner. In this case both giver and receiver are happy and comfortable. This mindset is really distressing and painful. It is only an unholy nexus and one should realize it is very dangerous as it is corroding to our economic stability. The need of the hour is to change this mindset. Laws are many but still this problem is unchecked and uncontrolled.
8. As far as cases relied upon by the counsel for convict Shoeb Ahmed is concerned it may be noted that matter in Jogender Singh (supra) was under Punjab Excise Act, 1914, Ishwar Dass (supra) was a case under Food Adulteration Act and there was a proviso under sub section (1) of Section 16 of the Act giving power to the court to impose a sentence less than prescribed under the Act. Similarly Jagat Pal Singh (supra), State of UP vs. Ranjit Singh (supra) were dealing with the offences under IPC, whereas Budh Ram (supra) was a case under Rajasthan Excise Act. In none of these matters the provisions of POC Act were involved. The provision of POC Act are far serious in nature as it deals to the economic conditions in comparison to the offences involved in the CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 69 abovesaid cases which are not of that serious magnitude. No comparison can be drawn to seek benefit by the Ld. defence counsel in the present case relying upon those judgments.
9. As far as the matter in Commandent 20 Bn. (supra) is concerned in this case it was dealing with the offences under CRPF Act, 1949 and convict was found over drunk and he made entry in the house of officer of the force. Again it would be of no help to convict in this case.
10. The matter in Bimal Kishore Pandey (supra) was no doubt under the provisions of POC Act but in this case convict was not given benefit of Section 360 Cr.P.C. or under the Probation of Offenders Act. In this case main offender was someone else who had expired and as such the original sentence of one year was modified in the matter of the convict to six months. This authority is again of no help to the convict.
11. Similarly the reliance placed on N.M. Parthasarthy (supra) will again be of no help to the convict in the present case in view of other judgment in Ram Narain Popli vs. CBI AIR 2003 SC 2748 where it was held that this type of offence should be dealt with sternly.
12. This court is of the view that strict adherence to POC Act CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 70 and rules is essential for safeguarding the interest of society. Stringent laws has no meaning if the offenders would go away with lenient punishments. Undue sympathy as asked for to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court as reminded in Surjit Singh vs. Nakhara Ram AIR 2004 SC 4122 to award proper sentence having regard to the nature of the crime and the manner in which it was committed.
13. In the present case the two convicts were found offering bribe in conspiracy to the tune of Rs.6 Lac for the allotment of three shops out of which part of the amount of Rs.2 Lac was readily taken in cash. The incident is of the year 1995. The amount of Rs.6 lac by no means was a big amount considering to the money value of the amount in 1995.
14. The offering of bribe is abetment to the commission of the offence punishable u/s 12 of P.C. Act with minimum punishment of RI for six months extending upto five years alongwith fine.
15. Taking into account the overall facts and circumstances R.I. of one year and fine of Rs.1 Lac each will meet the ends of justice for each of the two convicts. In default of payment of fine they will undergo S.I. for six months.
Both the convicts be given a benefit of Section 428 CBI Vs. Jasbir Singh Chawla & Anr.
AC No. 58/11RC No.88 (A)/95 Dated:- 29.08.2013 71 Cr.P.C., if any.
Case property be confiscated to State.
Copy of Judgment and Order of sentence be made available free of cost to both the convicts.
Order is made accordingly.
File be consigned to record room.
Dictated and announced in the open Court on 30.08.2013.
( RAJIV MEHRA ) SPECIAL JUDGE CBI (PC ACT) EAST DISTRICT KKD COURTS: DELHI