Delhi District Court
Cbi vs . Balraj Dabas on 16 December, 2011
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IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE: CBI01, CENTRAL DISTRICT. DELHI
CC No. 274/07 RC : 22(A)/07
PS :CBI/ACB/ND
U/s : 7 & 13 (2) r/w 13(1) (d)
of P.C. Act, 1988
CBI Vs. Balraj Dabas
S/o Sh. Azad Singh
R/o Vill & PO Rani Khera, Delhi110 081.
Date of Institution : 24.12.2007
Judgment Reserved : 18.11.2011
Judgment Delivered : 16.12.2011
J U D G M E N T
1. CBI filed the present charge sheet against the accused Balraj Dabas alleging therein that he had demanded and accepted bribe from Complainant Ommi. The law was set in motion after complainant Omi made a complaint to SP CBI alleging therein that he was running a diary. He had ten buffaloes and seven cows. In the vicinity of his diary there were CC No.274/07 CBI Vs. Balraj Dabas pg 1 of 27 2 other diaries also. On 07.07.2007 he received a call on his mobile phone from the accused. He demanded Rs. 10,000/ as bribe. He further threatened that in case money is not paid he would lift his cattle. Upon receiving complaint CBI registered RC No. 22 (A)/07. Investigation was entrusted to Mr. Brijesh Kumar.
2. Trap team was constituted comprising of Mr. Brijesh Kumar and other officers. Two independent witnesses namely Sh. Dharamvir Singh and Sh. Shiv Raj Singh from Directorate of Education, GNCT of Delhi were joined in the party. Witnesses satisfied themselves about genuineness of the allegation made in the complaint.
3. Complainant Omi was asked to call the accused on his mobile phone but no response was received. Shortly thereafter call was received by the complainant on his mobile phone. The conversation was recorded simultaneously. Complainant informed that accused had called and had asked for bribe and told him that he would be coming to his tabela at about 3.00/4.00 p.m. The conversation was played and was transferred into blank audio cassette.
4. Complainant produced Rs. 5000/. It was treated with Phenolphthalein powder. After completing other formalities the team left CBI Office and reached near tabela of Omi. Shadow witness Sh. Dharamvir CC No.274/07 CBI Vs. Balraj Dabas pg 2 of 27 3 Singh was briefed to give signal upon completion of the transaction. The team took positions. At about 3.40 PM Sh. Dharamvir gave preappointed signal. Upon it CBI team rushed and caught hold of accused by his both wrists. Accused had accepted bribe money with his right hand and transferred it to left hand and then kept it in the back pocket of his pant. After apprehension of the accused handwash of both the hands and back pocket wash was taken, in colourless solution of sodium carbonate. They gave pink colour thereby establishing handling of money by the accused.
5. A recovery memo was prepared wherein post trap proceeding were recorded. Accused was arrested and his personal search was taken. During course of investigation details of mobile phones of accused and complainant were collected, CFSL opinion was obtained. It was prayed that accused be tried for the offence of accepting bribe.
6. After providing copies to the accused and completing other formalities my Ld. Predecessor framed the following charge against the accused who pleaded not guilty and claimed trial.
"That on 772007 at Aikta Camp, AU Block, Pitampura, New Delhi at the diary/Tabela of complainant Omi, you demanded bribe of Rs. 10,000/ from the complainant Omi and on 972007 at about 3.40 PM at AU CC No.274/07 CBI Vs. Balraj Dabas pg 3 of 27 4 Block, Pitampura, New Delhi you accepted/obtained Rs. 5000/ as bribe from complainant Omi for yourself other than legal remuneration as a motive for not impounding his buffaloes and also to insist him to collect money for yourself form other diary owners in the exercise of your official duties and thereby you committed the offence punishable U/s 7 PC Act within my cognizance.
Secondly, that on 972007 at about 3.40 PM at AU Block, Pitampura, New Delhi at the diray/Tabela, you accepted/obtained Rs. 5000/ as bribe from complainant Omi for yourself other than legal remuneration as a motive for not impounding his buffaloes and also to insist him to collect money for yourself from other diary owners in the exercise of your official duties by corrupt or illegal means and abused your position as a public servant and thereby cOmitted criminal misconduct and you thereby committed an offence punishable U/s 13 (2) read with Section 13 (i)(d) of Prevention of Corruption Act, 1988 and within the cognizance of this court".
CC No.274/07 CBI Vs. Balraj Dabas pg 4 of 27
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7. As accused pleaded not guilty and claimed trial, prosecution examined 11 witnesses in support of its case.
8. PW1 was Dr. Rajender Singh from CFSL. He claim that on 11.7.2007 he received three sealed parcels from SP CBI. The parcels were marked as Ex. Q1, Q2 and S1. Ex. S1 contained normal audio cassette which contained questioned voice recording of the accused with respect to specimen voice. Ex. Q2 also contained normal audio cassettes having questioned voice recording of the accused. Upon examination the questioned voices tallied with specimen voice recordings. His report in this regard was Ex. PW1/A. He also submitted a corrigendum which was Ex. PW1/B. Upon being cross examined by Ld. Counsel for the accused he admitted that audiocassette which were sent to him were capable of being edited and tempered. However in this case there was no evidence of tempering or editions. He further admitted that opinion given by him is not hundred percent accurate but was accurate upto ninety nine percent.
9. The Second witness to be examined by the Prosecution was Mr. R. K. Singh from Bharti Airtel. He deposed about letter dated 21.7.2007 which was Ex. PW2/A. Vide this letter he forwarded to CBI attested scanned copy of subscriber enrollment form in respect of Balraj Singh R/o Village and Post Office Ranikhera, Near Main Bus Stand, New Delhi, ID Proof and CC No.274/07 CBI Vs. Balraj Dabas pg 5 of 27 6 certified call details in respect of mobile no. 9971362933 from the period 25th June 2007 to 10th July 2007. The enrollment form was Ex. PW2/B and the call details were Ex. PW2/C. Upon being cross examined he claimed that name of the subscriber had been written as Balraj Singh and not Balraj Dabas on the various documents. He also admitted that Ex. PW2/DA which was ID Proof did not have any photograph.
10. The third witness to be examined was Sanjeev Lakra. He deposed that on 31st July 2007 he was working as Nodal Officer in Reliance Communication. Letter Ex. PW3/A contained his signatures. Vide this letter he forwarded to CBI call details in respect of Mobile No. 9312461955. The connection was a name of Omi. Call details were Ex. PW3/B. Scanned copy of customer application form was mark PW3/X and ID Proof of Omi was mark PW3/X1.
11. PW4 was Shivraj Singh, UDC in Education Department. He deposed that on 9th July 2007 he was working as UDC in Directorate of Education. He attended CBI Office alongwith Mr. Dharamvir Singh on instruction of his officers. They were introduced to Omi and shown the complaint made by Omi. They questioned him. Omi informed them about the bribe demand. A digital voice recorder was produced and his and Dharamvir's introductory voices were recorded. Complainant made a CC No.274/07 CBI Vs. Balraj Dabas pg 6 of 27 7 telephonic call to accused who did not take the call. After 23 minutes accused called complainant. The conversation was recorded. It was transferred in a cassette and played. Complainant produced Rs. 5000/. The number of the notes were noted and they were treated with phenolphthalein powder and demonstration was given by him by touching those notes. The notes were handed over to the complainant who kept them in front pocket of kurta. He was directed to handover the notes to the accused on his specific demand. They then left CBI Office. Dharamvir was asked to remain as shadow witness. They reached near TV Tower, Pitampura. After sometime accused came on a scooter. After about 20 minutes on receipt of signal from Mr. Dharamvir the CBI team apprehended the accused from his arms. He (PW 4 Shiv Raj) was asked to recover the tainted money from the pant of the accused by CBI, which he did. He also compared the numbers with the handing over memo. The witness further deposed that handwashes of the accused were taken. His pant was removed and the pocket was also washed in the solution of sodium carbonate. The solutions turned pink. The GC notes recovered were Ex. P1 to P10. The bottles containing solutions were P11 to P13. The pant of the accused was P14. Recovery memo Ex. PW4/B, site plan Ex.
PW4/C also contained his signatures. On 10.7.2007 specimen voice
CC No.274/07 CBI Vs. Balraj Dabas pg 7 of 27
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samples of the accused were taken by the CBI. After about 23 days
transcripts of the conversation were prepared in CBI Office. The same were Ex. PW4/E and PW4/F. Cassette Q1 was Ex. P15, papers slip was Ex. P16 and the cloth wrapper was Ex. P17. The other cassette Q2 was Ex. P18, papers slip was Ex. P19.
12. Upon being crossexamined, the witness claim that complainant had come alone to CBI Office at about 11.00 or 11.15 AM. Punch witness Dharamvir and 56 CBI officers were present when he read the complaint of the complainant. He denied the suggestion that no telephonic talks took place between Complainant and Accused. He could not admit or deny that accused had not made any demand of bribe. He further denied the suggestion that no preraid proceedings were conducted by CBI in his presence. He also denied the suggestion that PW Dharamvir had not given any signal or that CBI forcibly put Rs. 5000/ in the pocket of accused.
13. The next witness to be examined by the CBI was Dharamvir Singh. He deposed that on 09.07.07 he was working as UDC in Directorate of Education, Govt. of Delhi. He attended office of CBI along with Shiv Raj Singh. Upon their visit they met complainant Omi. They saw the complaint according to which accused had demanded Rs.10,000/ from the complainant. Introductory voices were recorded in digital voice recorder CC No.274/07 CBI Vs. Balraj Dabas pg 8 of 27 9 and complainant was asked to call the accused. Complainant made a telephone call but no conversation took place between them. Thereafter accused called complainant on his mobile and conversation took place. In the conversation accused had asked complainant to reach his Tabela between 3 or 4 p.m. for delivering the bribe. Complainant produced Rs. 5000/ and the notes were treated with phenolphthalein powder. PW Shiv Raj touched the notes. Then wash was taken and the solution turned pink. GC notes were handed over to complainant who kept them in his kurta. Complainant was directed to hand over the GC notes upon demand by the accused. He (PW5 Dharamvir) was instructed to remain with the complainant and give a signal after transaction of bribe. They then reached the Tabela. CBI team members along with PW Shivraj took positions. After about 15 or 20 minutes accused came over there. Witness then claimed that he saw complainant taking out GC notes and extending them towards the accused. Accused accepted them with his right hand and kept them in his rear pant pocket. He then gave signal to CBI team which nabbed the accused by his hands. His right hand wash was taken and the solution turned pink. The GC notes were recovered from the pocket of the accused by Shivraj Singh who tallied the number with handing over memo. His search was conducted. His pant was got removed. Wash of the pant CC No.274/07 CBI Vs. Balraj Dabas pg 9 of 27 10 was taken in solution of sodium carbonate and the solution turned pink. Digital recorder was taken back and played but the sound was not very audible. GC notes recovered from the accused were Ex.P1 to Ex.P10. The bottles containing wash were Ex.P11, Ex.P12 & Ex.P13. Audio cassette Q1 was Ex.P15. Its paper cover was Ex.P16 and cloth wrapper Ex.P17. The other audio cassette Q2 was Ex.P18 and paper cover was Ex.P19 and cloth wrapper was Ex.P20. The pant worn by the accused was Ex.P14. Cloth wrappers of the bottles were Ex.P21, Ex.P22 and Ex.P23. The witness was thereafter crossexamined by learned PP as he was resiling from the statement made u/s. 161 Cr.P.C. wherein he admitted that his statement had been recorded by CBI. The cassette had been played in his presence in the CBI office on 03.12.07. It contained conversation between accused and complainant regarding bribe. Transcript prepared of the conversation Ex.PW4/E and it was also signed by him. He further admitted that he had told the IO that accused had accepted GC notes with his right hand and had transferred them to his left hand and had kept them in his pocket. He further admitted that he had told the IO that after accused was apprehended, he told CBI officials "sir, bacha lo jo hona tha vo ho gaya, yahin khatam kar do".
14. In his crossexamination by learned counsel, he claimed that the CC No.274/07 CBI Vs. Balraj Dabas pg 10 of 27 11 complaint by the complainant was not written in his presence and that his statement had been recorded twice by the CBI. In his presence telephonic conversation had taken place between complainant and the accused. He further claimed that in his presence CBI officers had not provided Rs.5000/ to Omi. He admitted that he did not hear any demand of bribe in the telephonic conversation. He also admitted that the spot conversation was not complete and audible.
15. Thereafter, next witness to be examined was Dinesh Sharma. He deposed that he was posted as Veternary Officer MCD Rohini Zone from September 2006 to 14.07.2007. Accused was his subordinate working as Milch Tax Inspector. His joining report dt. 11.07.2007 was Ex.PW6/A. He was transferred from Rohini Zone to HQ Town Hall, Delhi in July 2007. His relieving order was Ex.PW6/B. Attendance marked by accused in the month of July 2007 was Ex.PW6/C. He was relieved from the office on 05.07.2007, but he had marked his attendance on 06.07.2007 also. The job of Milch Tax Inspector was to catch stray cattle and remove illegal dairies.
16. The next witness to be examined was PW7 Dr. Narender Dabas, Veternary Officer Rohini Zone. He testified that he was posted in Rohini Zone from 13.03.2007 to 27.12.07. Ex.PW7/A was sent by Veternary CC No.274/07 CBI Vs. Balraj Dabas pg 11 of 27 12 Officer Head Quarters to Zonal Veternary Officer. It contained signatures of Dr. V.K. Singh which he identified. He had handed over Ex.PW6/A, PW6/B and PW6/C and Ex.PW7/A to CBI.
17. The next witness to be examined was star witness of the prosecution complainant Omi. He deposed that he reared buffaloes at Haiderpur and Pitampura on government land. Accused had demanded bribe of Rs. 10,000/ on 07.07.07. He thereafter went to CBI office on 09.07.07 to lodge his complaint. He met senior officers over there. CBI Inspector arranged two independent witnesses namely Sh. Dharamvir and Shiv Raj. As he was illiterate, a person present over there recorded his complaint Ex.PW8/A which was then read over to him. He then contacted accused on his mobile phone but the accused did not take his call. After some time he received a call on his mobile phone from the accused while he was in CBI office. The conversation between him and the accused was recorded in a cassette. Accused had asked him in course of conversation to pay bribe between 3 and 4 p.m. at the dairy. He had Rs.5000/ with him. Their numbers were noted down . Some powder was applied on the notes and independent witness touched them. The solution turned pink. The GC notes were handed back to him which he kept in front pocket of his kurta. He was instructed to deliver them upon demand being made by the CC No.274/07 CBI Vs. Balraj Dabas pg 12 of 27 13 accused. PW Dharamvir was directed to remain with him and watch the transaction and overhear the conversation. A recording device was kept in his pocket. He along with CBI team reached his dairy. After some time accused came on a scooter over there. Accused asked him as to how much money he had brought. He then told the accused that he had Rs. 5000/ with him. He then took out the GC notes and extended his hand towards the accused. Accused accepted the amount with his right hand. He transferred the amount to his left hand and kept them in pocket of his pant. He then asked for the balance money. Upon it witness told him that he would get the same from Lala another dairy owner.
18. Dharamvir then gave preassigned signal to the CBI team which rushed and apprehended the accused from his wrists. His hand wash was taken and the solution turned pink. It was transferred to bottles. PW Shiv Raj recovered the GC notes from the pocket of the accused and tallied them with the memo. His pant was removed and pocket was washed. Solution again turned pink. Thereafter cassettes were played in the court wherein witness identified his own voice and that of the accused. FIR which had been registered was MarkPW8/X1. Upon being cross examined by learned counsel, he claimed that he had been running his dairy for the last about 15 years. He did not have any license. He denied CC No.274/07 CBI Vs. Balraj Dabas pg 13 of 27 14 the suggestion that accused had not demanded any bribe. He claimed that he was illiterate but could sign. He also denied the suggestion that no pre trap proceedings had been conducted. He also denied the suggestion that trap money was provided to him by CBI. He claimed that he had signed the documents after they were read over to him. He also denied the suggestion that he was implicating the accused at instance of somebody else.
19. Thereafter, SI Anmol Sachan entered the witness box. He deposed that during 2007 he was posted as Sub Inspector in ACB. On 09.07.07 case was registered against the accused. The FIR (MarkPW8/X1) was Ex.PW9/A. It contained signatures of S.P Mr. S.K. Palsania. With permission of the court investigation was entrusted to him (PW9). He had conducted investigation, collected documents. The forwarding letter dt. 11.11.07 was sent to Director CFSL. It contains signatures of Mr. Palsania. The report was Ex.PW9/F. During course of investigation he recorded statement of witnesses, obtained sanction for prosecution and filed the charge sheet. Upon being crossexamined he admitted that investigation of the case was not with him on 09.07.07. He also admitted that no FIR was registered in his presence. Voice transcription memo was prepared by him in his office. He had sent draft sanction order along with copies of the CC No.274/07 CBI Vs. Balraj Dabas pg 14 of 27 15 documents to competent authority.
20. PW10 Brajesh Kumar, then entered the witness box and deposed that on 09.07.07 he was posted as Inspector ACB. On 09.07.07 SP S.K. Palsania sent complainant Omi to him regarding his grievance. Omi complained that on 07.07.07 accused a Milch Tax Inspector had demanded bribe of Rs. 10,000/ from him. As he was unable to write complaint, he (PW 10) got complaint written by Sub Inspector Manoj. The said complaint was Ex. PW8/A. It was read over to the complaint who signed it. FIR no. 9/A was registered on directions of S.P. A trap team was constituted. Two independent witnesses Dharamvir and Shivraj were arranged. They enquired about the complaint from the complainant. Complainant also produced Rs.5000/. Complainant contacted accused and shortly thereafter accused called and had conversation with the complainant. It was duly recorded in digital recorder. The GC notes were treated with phenolphthalein powder. Demonstration was given by independent witness Shivraj. The complainant was directed to hand over the notes on his demand and Dharamvir was instructed to act as shadow witness.
21. When they reached dairy and took positions, shadow witness gave signal about 3.40 pm. Upon it, accused was apprehended. His hand washes were taken. The GC notes were recovered from his pocket by CC No.274/07 CBI Vs. Balraj Dabas pg 15 of 27 16 independent witness Shivraj and compared the numbers. Pant of the accused was also removed. Its pocket wash was taken. Digital recorder was taken back and played. Accused was arrested and his personal search was conducted. Rough site plan was prepared. Subsequently specimen voice sample of the accused was taken and investigation thereafter was transferred to Anmol Sachan.
22. Upon being cross examined, witness claimed that he had met complainant for the first time at CBI office on 09.07.07. He denied the suggestion that no pre trap proceedings were conducted in the CBI office. He also denied the suggestion that GC notes were provided by him.
23. PW11 was Mr. Janak Diggal, Sanctioning Authority. He deposed that on 20.12.07, he was posted as Additional Commissioner (Health). Request for sanction was put up before him as he was competent to remove the accused from service. After perusing FIR,rukka, statement of witnesses and other documents he was satisfied that prima facie, accused had committed offence under PC Act. He then accorded sanction Ex. PW11/A.
24. Upon being cross examined, he claimed that report of CBI, statement of witnesses and draft sanction had been sent to him. He denied the suggestion that he had not applied his mind.
CC No.274/07 CBI Vs. Balraj Dabas pg 16 of 27
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25. After closing PE statement of accused was recorded u/s 313 Cr.P.C. where he admitted that he was posted as Milch Tax inspector in Rohini ZoneI. He also admitted that complainant Omi used to raise buffaloes on government land at Pitampura Park. Regarding question put to him that complainant had mobile no. 9312461955, he did not make any specific denial. To the question that on 09.07.07 he had come to the dairy of the complainant and had accepted Rs. 5000/, he admitted receipt of the money but claimed that it was loan amount which he had disbursed to different persons earlier. He claimed that it was not bribe amount. He claimed that he was made to sign documents under pressure and threat. To the query that he had told CBI officials "sir, bacha lo, jo hona tha woh ho gaya, yahin khatam kar do", he claimed that he had told CBI officials that he was being framed for removing cattle of the dairy owners from government land. Finally, he claimed that complainant was interested witness and he held grudge against him for many times he had removed his cows and calfs from the government land and he was diligent government servant performing his duty with devotion.
26. He examined two witnesses in his defence. The first witness was Brij Bhushan Sharma, Incharge Timarpur Phatak, Cattle point, Civil Lines Zone MCD. He deposed that it was duty of Milch Tax Inspector to round up CC No.274/07 CBI Vs. Balraj Dabas pg 17 of 27 18 stray cattle from the road and accused was Milch Tax Inspector. During his tenure accused never brought any cattle to his point. Upon being cross examined by learned PP, he claimed that he had no knowledge of other activities of Milch Tax Inspector who without bringing the cattle to the office may release them outside after taking gratification. He further admitted that he knew two more Milch Tax Inspectors who were caught for demanding bribe and one of them had also been convicted. Finally, he admitted that he was not aware whether accused had demanded and accepted the bribe on the threat of impounding cattle.
27. The second witness to be examined by the accused was Pintu. He claimed that he ran a dairy at Pitampura. He knew the accused. He used to borrow money from the accused. There were 1012 other dairies in the area. Complainant Omi had also borrowed money from the accused.
28. I have heard Sh. Praneet Sharma, Ld. PP and learned counsel for the accused very extensively. I have also gone through the file.
29. Learned counsel for the accused submitted that in the complaint Ex.PW8/A, no time of the receipt of the telephone call made by the accused was mentioned. He further submitted that it was not face to face demand.
CC No.274/07 CBI Vs. Balraj Dabas pg 18 of 27
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30. Ld. counsel for the accused further argued that the telephone connection of telephone no. 9971362933 was in name of Balraj and was not Balraj Dabas. So, in other words, Ld. counsel wanted the court to believe that Balraj Dabas was not the subscriber of telephone no. 9971362933.
31. Now if we take a look at Ex. PW 2/A we find that it is letter written by nodal officer to the CBI to the effect that telephone number 9971362933 was in name of Balraj Singh R/o vill. & PO Rani Khera, Near main Bus Stand, New Delhi. Now if we take a look at Ex.PW2/B we find that it is subscriber enrollment form. Name of the applicant has been written as Balraj, name of the father as Mr. Azad, Date of birth 16.4.1975, address has been written as village & PO Rani Khera, New Delhi and office address written as MCD, Room no.307 sector 5, Rohini, Beside Rajiv Gandhi Cancer Hospital New Delhi 110085.
32. I am unable to accept that there can be more than one Balraj having father Mr. Azad, having Date of Birth 16.4.75, staying in Village Rani Khera and working in MCD office at Rohini. Plus, if we take a look impression of the signatures of subscribers of telephone no.9971362933 and compare them with signatures on various applications, Vakalatnama on court record of the accused Balraj Dabas, we find that they perfectly matched. If CC No.274/07 CBI Vs. Balraj Dabas pg 19 of 27 20 accused Balraj Dabas was so particular about disowning telephone no. 9971362933 then in his statement u/s 313 Cr. PC where specific question was put to him regarding above telephone connection no. 9971362933, he had answered that it was matter of record. He should have disputed the telephone No. 9971362933 while answering the question regarding the telephone. Moreover, he should have led evidence to show that even if connection was in his name, somebody else was using his phone and making demand of bribe but he never did so. It has to be the present accused Balraj and nobody else. Merely because his caste 'Dabas' is not mentioned in subscriber's enrollment form should not lead the court to believe that it was some other person and not the present accused.
33. Now, if we take a look at the complaint Ex.PW8/A, telephone No. of the accused 9971362933 is very clearly mentioned. It was from this number telephone call was received in which demand of Rs. 10,000/ was made. PW2 R.K. Singh was nodal officer of Bharti Airtel. He deposed that telephone No.9971362933 was in name of Balraj Singh residents of Vill & PO Rani Khera, main bus stand, New Delhi. So what more remains to be proved. It stands established from subsequent conversation and recovery of GC notes from person of accused that the demand of bribe of Rs. 10,000/ had been made to the complainant from Telephone No. CC No.274/07 CBI Vs. Balraj Dabas pg 20 of 27 21 9971362933.
34. Ld. counsel further argued that CBI straight away registered RC on receipt of complaint Ex.PW8/A, it did not carry any pre trap verification.
35. I am afraid it is not so. On Ex.PW8/A itself SP CBI directed verification and laying of trap. PW4 made it very clear that complainant had made a telephone call to the accused but he did not attend the call. After 2/3 minute complainant received a call from the accused. The said conversation was recorded and heard by officers of the CBI as well as the witnesses. So, indeed verification had been done.
36. Learned counsel further argued that PW1 Rajender Singh in his cross examination admitted that audio cassette could be tempered and edited. According to learned counsel there was further admission on the part of Rajender singh that his opinion could not be 100 % accurate.
37. It is true that Mr. Rajender Singh had made such a statement. But in the same statement he has further deposed that he had examined the cassettes regarding these aspects and found no traces of tempering. He further had admitted that his opinion was not 100% accurate but he claimed that it was accurate upto 99 %. Court has before it not only the opinion of the expert but also lot of other corroborative material which points towards the guilt of the accused. Recovery of the tainted money was effected from CC No.274/07 CBI Vs. Balraj Dabas pg 21 of 27 22 his person.
38. Ld. counsel further stated that voice samples had not been taken in presence of Mr. Rajender Singh. Voice sample are never taken in presence of the expert. They are taken in presence of the witnesses and sent to the expert for opinion. Here in the case in hand voice samples were taken in presence of independent witnesses on the next day. So there is nothing wrong with it.
39. Learned counsel also argued that PW4 in his crossexamination had claimed that he could not admit or deny that accused had not made any demand of bribe in his conversation. He had also admitted that no demand of bribe was made by the accused in his presence nor accused had accepted any bribe in his presence. The answer to the query was given by the witness himself in the same crossexamination. He had admitted that he was not a shadow witness. He had admitted that he was asked to remain along with rest of the CBI team. If that is so then certainly he would not have heard any demand of bribe nor he would have seen acceptance of bribe. These facts would have been heard and seen by the shadow witness. It was PW4 independent witness who remained with the CBI team who had affected recovery of GC notes from the pocket of accused and had also tallied the numbers. Further corroboration we find from the two CC No.274/07 CBI Vs. Balraj Dabas pg 22 of 27 23 conversations which were recorded. If we go through the transcript of pre trap conversation and the spot conversation It becomes abundantly clear that indeed there was demand of bribe.
40. Further it was argued by learned counsel that PW4 had admitted in his crossexamination that he had signed some documents at the CBI office. So according to learned counsel the documents had not been prepared at the spot but were prepared subsequently in CBI office. I am afraid it is not so. In the same crossexamination the witness deposed that he had signed handwritten the memos at the spot and computer typed memos in the CBI office.
41. Learned counsel also submitted that according to testimony of PW5 Dharamvir Singh who was shadow witness had deposed that complainant had asked him to remain at a distance. It is correct that he had so deposed but he had given its explanation in his testimony itself. He claimed that complainant had asked him to remain at a distance so that accused may not become suspicious.
42. Lastly Ld. Counsel assailed the sanction which had been accorded in the present case. He claimed that draft sanction order had been sent to the sanctioning authority and so it indicates that sanctioning authority did not apply its mind and granted sanction mechanically. I am afraid, it is not CC No.274/07 CBI Vs. Balraj Dabas pg 23 of 27 24 so. Upon being cross examined, the sanctioning authority had denied the suggestion that it had not applied its mind. He claimed that FIR, raid report, statement of witnesses etc. had been sent to him. After perusing them, he was satisfied that accused had prima facie committed offence u/s. 7 & 13 of P.C. Act.
43. In State of Tamil Nadu Vs. Damodaran: 1993 Supp (1) SCC 221, director vigilance, Anti Corruption had written a letter to sanctioning authority. He had also sent draft sanction order. Hon'ble High Court had held that sanctioning authority had not applied its mind. Appeal was filed in Hon'ble Supreme Court which held:
" We are of the view that the High Court was not justified in reaching the conclusion that the sanctioning authority granted sanction mechanically and without application of mind. The statements of the witnesses recorded u/s 162 Cr.P.C. (sic) were reproduced in detail in letter dt. 25.4.1979. We are satisfied that all relevant material was before the sanctioning authority and he granted sanction after fully applying its mind. We see no infirmity in the order granting sanction".
44. I find that the stand taken by the accused in the statement recorded u/s 313 Cr.P.C. is not in accordance with normal human behaviour. In answer to question no. 13, he had claimed that the money which was being CC No.274/07 CBI Vs. Balraj Dabas pg 24 of 27 25 given to him was on account on loan which he had enlarged to different persons. Complainant had collected the loan amount from his debtors and handed over to him. DW2 Pintu in his testimony also claimed that accused used to enlarge loan to him and to others. Complainant had also taken loan from the accused and was paying it back when accused was arrested. In answer to question no. 39, he claimed that complainant was holding grudge against him as he had removed his cattle many times. If there is any truth in this statement, then it would indicate that the terms between the accused and the complainant were bad because accused had been lifting his cattle. It would be difficult to believe that despite this kind of sour relations, accused had enlarged loan to him and had also deputed him to collect loan amount from others. So this is nothing but only a cooked up story. Had there been any truth in his claim, then he would have examined any one of his other debtors who would have deposed regarding loan taken by him. There is still one more reason to disbelieve story of the accused. PW4 upon being crossexamined was given a suggestion that CBI has forcibly put Rs.5000/ in the pocket of the accused. All these suggestions are contradictory.
45. So it is clear from the statement u/s 313 Cr.P.C. that accused indeed had accepted the amount. It was his duty to have satisfied the Court CC No.274/07 CBI Vs. Balraj Dabas pg 25 of 27 26 that indeed the money being taken by him was towards return of loan and not bribe. The burden of proof on accused was more than u/s 114 of the Evidence Act.
46. In S.Bose Vs. State of Bihar : AIR 1968 SC 1292, a doctor had taken bribe to issue certificate. On being caught, he admitted having taken money but claimed that complainant was returning loan which had been advanced earlier. Hon'ble Supreme court quoted from AIR 1964 SC 575 as follows:
" Therein this Court held that the burden resting on the accused person in such a case would not be as light as placed on him u/s 114 of Evidence Act and the same cannot be held to be discharged merely by reason of the feet that the explanation offered by him is reasonable and probable. It must further be shown that the explanation is true one....
...In other words the nature of the burden placed on him is not the same as that placed on prosecution which must not only prove its case but prove it beyond reasonable doubt".
47. So accused has not merely to offer an explanation, but he must also satisfy the court that explanation is true one. As I have noted earlier that conduct of the accused does not generate confidence that he had extended CC No.274/07 CBI Vs. Balraj Dabas pg 26 of 27 27 loan to a person with whom he was having bad terms and to crown it he had also asked him to collect loan amount from others. So the amount received by him was bribe and nothing else.
48. I therefore hold that prosecution has been successful in making out case against the accused. He had not only demanded but also accepted bribe and committed criminal misconduct since he was a public servant. He stands convicted u/s 7 & 13(2) r/w 13(1)(d) of PC Act, as prosecution has been completely successful in proving its case against accused Balraj Dabas.
Announced in open Court
on December 16, 2011 ( PRADEEP CHADDAH )
Special Judge:CBI01
Central District. Delhi
CC No.274/07 CBI Vs. Balraj Dabas pg 27 of 27
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IN THE COURT OF SH. PRADEEP CHADDAH: SPECIAL JUDGE:
CBI01, CENTRAL DISTRICT. DELHI CC No. 274/07 RC : 22(A)/07 PS :CBI/ACB/ND U/s : 7 & 13 (2) r/w 13(1) (d) of P.C. Act, 1988 CBI Vs. Balraj Dabas S/o Sh. Azad Singh R/o Vill & PO Rani Khera, Delhi110 081.
ORDER ON SENTENCE
1. This Court had vide its judgment dated 16.12.11 found convict Balraj Dabas guilty u/s 7 & 13(2) r/w 13(1)(d) of PC Act.
2. He had demanded bribe from one dairy owner namely Omi for permitting him to carry on his business uninterrupted. Otherwise, duty of the convict was to seize stray cattles and take them to cattle pound. Convict misused his official position and succeeded in CC No.274/07 CBI Vs. Balraj Dabas pg 28 of 27 29 extorting money when he was arrested. There were many other dairies running in the area in similar manner. Certainly, he would have extorted bribes from those dairy owners for letting them operate peacefully.
3. Learned counsel for the convict prayed for taking of lenient view in the matter. He claimed that ever since his arrest in the present case he has been suspended from his office. He has small children and aged parents to look after.
4. I have heard Ld. PP also who prayed for taking of serious view and imposing stringent punishment.
5. My Lord Mr. Justice Krishna Iyer in Som Prakash Vs. State of Delhi : AIR 1974 SC 989 held:
"Bribes are paid not only to get unlawful things done but to get lawful things done promptly since time means money."
CC No.274/07 CBI Vs. Balraj Dabas pg 29 of 27
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6. Hon'ble Supreme Court in Raman Lal Vs. State of Bombay :AIR 1960 SC 961 had held:
" For a public servant to be guilty of corruption is a very serious matter and the Courts would not look upon it with undue leniency."
7. It no doubt may be true that he has a family to look after but he should have been more honest in his dealings. He should not have exploited his office for his personal gains. Court must keep in mind interest of society at large. A message should go out that petty bribery will not be tolerated and suitable punishment shall be awarded to the wrong doers.
8. On 08.11.2011 Hon'ble the Chief Justice of India issued a letter expressing his views. He observed that corruption is a malady which calls for punitive measures. Punishment is designed not only CC No.274/07 CBI Vs. Balraj Dabas pg 30 of 27 31 to punish the guilty but also to protect the society by deterring potential offenders.
9. I have given my considered thoughts to the rival submissions. To my mind, sentence of three years R.I. u/s. 7 of the P.C. Act along with fine of Rs.50,000/ shall meet ends of justice. In event of failure to pay fine, convict shall undergo S.I. for six months. I further order the convict to undergo three years R.I. U/s. 13(2) r/w. Sec. 13(1) (d) of the P.C. Act. along with fine of Rs.50,000/ shall meet ends of justice. In event of failure to pay fine, convict shall undergo S.I. for six months.
10. Sentences shall run concurrently and period undergone as under trial shall be set off against the sentences imposed.
Announced in open Court
on December 17, 2011. ( PRADEEP CHADDAH )
Special Judge:CBI01
CC No.274/07 CBI Vs. Balraj Dabas pg 31 of 27
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Central District. Delhi
CC No.274/07 CBI Vs. Balraj Dabas pg 32 of 27