Delhi District Court
Cbi vs Afzal Ahmad on 20 December, 2023
IN THE COURT OF MS. ANJU BAJAJ CHANDNA
PRINCIPAL DISTRICT & SESSIONS JUDGE-CUM-
SPECIAL JUDGE (PC ACT) CBI ROUSE AVENUE
DISTRICT COURTS, NEW DELHI
CBI No. 309/2019
CBI Vs. Afzal Ahmad
RC No. DAI-2018-A-0007/CBI/ACB/New Delhi
U/s 7 & 13(2) r/w 13(1)(d) of Prevention of Corruption Act,
1988.
Central Bureau of Investigation
vs
Afzal Ahmad
S/o Hilal Ahmad
R/o 2091, Beverly Hills Apartments
Opposite Saint Lawrence Convent School,
Geeta Colony, Block-5, Delhi-110031
Permanent Address:-
Kashan-e-Qamar, Friends Colony,
Dodhpur Road, Near Nagia Mallah
Civil Lines, Aligarh, UP-202001
Date of FIR : 21.02.2018
Date of filing of chargesheet : 29.06.2018
Date of cognizance : 12.07.2018
Date of framing of charge : 17.05.2019
Arguments concluded on : 24.11.2023
Date of Judgment : 20.12.2023
CBI vs Afzal Ahmad 1/65
Appearances
For prosecution : Sh. Praneet Sharma, Ld. Senior Public
Prosecutor for CBI.
For accused : Sh. Rajeev Mohan, Advocate.
JUDGMENT
1. The public Servant Afzal Ahmad posted as Senior Manager (Civil), ITDC has been prosecuted for the offences punishable under Section 7 and 13 (2) read with Section 13 (1)
(d) of Prevention of Corruption Act 1988 (hereinafter referred to as P.C. Act).
2. The present case was registered on the basis of written complaint dated 21.02.2018 preferred by complainant Satyendra Kumar Singh against public servant Afzal Ahmad, Senior Manager (Civil), ITDC, Scope Building, CGO complex, Lodhi Road about demand of illegal gratification of Rs.60,000/- from the complainant.
3. The complaint was verified by Manish Kumar, Sub- Inspector, ACB, CBI on 21.02.2018 in the presence of an independent witness Ankit Bansal, Inspector, CGST, Mayur Vihar Division. During the course of verification, a Digital Voice Recorder (DVR) was provided to the complainant and he along CBI vs Afzal Ahmad 2/65 with witness was asked to go and meet the accused. The conversations that took place between the accused and the complainant was recorded in memory card fitted in DVR wherein demand of bribe was confirmed. The memory card was marked as Q-1.
4. The FIR was registered vide RC-DAI-2018 (A)-0007 under Section 7 of Prevention of Corruption Act. A trap team was constituted by Trap Laying Officer (hereinafter referred to as TLO) Inspector H. V. Attri which consisted of Inspector Harnam Singh, Inspector Kamal Singh, Inspector Harish Chandra, Sub- Inspector Pradeep, and Sub-Inspector Manish Kumar along with two independent witnesses namely Krishan Kumar from the Transport Department and Ankit Bansal, Inspector from CGST.
5. The pre-trap proceedings were conducted at the CBI office wherein complainant produced a sum of Rs.60,000/- (30 GC notes of Rs.2000/- each) and the same were treated with phenolphthalein powder. The numbers of currency notes were noted down separately. All the members were explained the purpose and significance of the phenolphthalein powder and its chemical reaction. The amount of Rs.60,000/- was kept in the right side lower pocket of Nehru jacket worn by the complainant. Sh.Ankit Bansal was asked to act as a shadow witness and to remain close to the complainant. It was directed that after the transaction of bribe, signal be given by rubbing their heads with CBI vs Afzal Ahmad 3/65 both hands and complainant was also directed to give a missed call from his mobile phone to TLO. The second independent witness was asked to remain with the trap team.
6. The trap team left for the office of the accused. The DVR in recording mode was kept in the left side upper pocket of shirt worn by the complainant. The complainant and independent witnesses Ankit Bansal went to meet the accused while the trap team took positions inside the office premises. The accused came after completing his official work and told the complainant to meet him near his car and accordingly complainant and independent witness came out of the office of the accused and reached near his car which was parked in the open parking near scope complex. The accused Afzal Ahmad occupied the driver seat of the car and opened the opposite door of the car and directed the complainant to keep the money in the dashboard. The complainant took out the bribe amount from the jacket and kept the same on the dashboard of the car of the accused. The accused started moving his car towards the exit gate of the parking, when complainant alerted the CBI team by giving signal and the car of the accused was stopped near the exit gate of the parking and he was apprehended by CBI officials. DVR was taken back from the complainant and memory card was marked as Q-2. The amount of Rs.60,000/- was recovered from the dashboard of the car lying on the cloth carry bag. Wash of the cloth carry bag was taken and same was sealed. The site plan of CBI vs Afzal Ahmad 4/65 place of occurrence was prepared. The office chamber of the accused was searched and documents were seized. The accused was arrested and his specimen voice was recorded in the memory card marked S-1.
7. The matter pertained to the project 'Development of Hatia / Dhurva Dam, Ranchi, Jharkhand which was awarded to M/s Raj Construction by ITDC through work order dated 23.01.2015. Accused Afzal Ahmad was the Engineer In-charge of the said project and responsible for overall supervision of the project including forwarding of the bills for verification to the Architect and approvals for payment thereof.
8. The project was completed on 20.04.2016 and the final bill of Rs.24,31,373.12 was submitted by the contractor vide letter dated 16.01.2018. The site Engineer namely Amit recommended for payment of Rs.19,67,672/-. The payment was pending with the accused and not forwarded for signature of the Architect. Measurement book was not forwarded to the Architect and was kept pending.
9. The Memory cards Ex.Q-1, Q-2 and S-1 were sent to CFSL for making copies thereof for the purpose of investigation. After receiving the copies, the same were sent to CFSL for expert analysis. The sealed bottle containing wash was also sent to CFSL for examination. The transcripts of conversations were CBI vs Afzal Ahmad 5/65 prepared. The voice of the accused was identified by the complainant and also by ITDC officials. The sanction for prosecution under Section 19 PC Act was accorded by competent authority.
10. The charge-sheet was submitted in the court on 29.06.2018. Cognizance of the offence was taken on 12.07.2018 against the accused.
11. Vide order on charge dated 17.05.2019 charges were framed against the accused for offences punishable under Section 7 and 13 (2) r/w Section 13 (1) (d) of PC Act 1988 to which accused pleaded not guilty and claimed trial.
12. During the trial, prosecution examined 14 witnesses in all. The sum and substance of prosecution evidence is as follows:-
PW-1 Satyendra Kumar Singh is the complainant of the case. He is one of the partners of M/s Raj Construction which was engaged in the work of Hatia Dam, Ranchi in the year 2013. Complainant deposed that work was completed in the year 2016 and after completion of work, a bill of 19 Lacs remained pending with ITDC and same was not cleared till 2017. Complainant visited the ITDC office several times. Accused Afzal Ahmad, Senior Manager was the CBI vs Afzal Ahmad 6/65 Incharge of the project and complainant met him after final bill was prepared and he asked him to get the bill signed from Architect. Complainant met Architect Garima who refused to sign the bill stating that payment has not been made to her by ITDC and further stated that she would sign only if she is given 1% of the total cost of the project. Complainant came to the accused Afzal Ahmad as it was not the responsibility of the complainant to get the bill signed from the architect. The accused said that the bill would be passed, however, some expenses would be incurred and the expenses would be around 1.5-2 Lakhs. The complainant expressed his inability to pay the amount in one go and asked to pay Rs.50,000 / 60,000/-and rest after payment of his pending bill. The complainant approached CBI with his complaint.
Complainant testified about the verification of his complaint along with independent witness Ankit Bansal whereby DVR with memory card was handed over to him for recording conversations. The complainant came to the office of the accused and had conversation with him which was duly recorded. The complainant then came to the office of the CBI and conversation so recorded was heard by Inspector Manish. PW-1/complainant further deposed about CBI vs Afzal Ahmad 7/65 constitution of trap team headed by Inspector Khatri and laying of trap and further acceptance of bribe of Rs.60,000/- by the accused whereby he asked the complainant to keep the money in the dashboard of the car. The complainant further testified about apprehension and arrest of the accused and conduct of investigation in his presence.
Complainant has proved his complaint Ex.PW1/1, verification memo Ex.PW1/2, handing over memo Ex.PW1/3, recovery memo Ex.PW1/4, partnership deed of M/s Raj Construction Ex.PW2/B. File regarding the payment of pending bills of the firm M/s Raj Construction seized by the CBI from the office of accused is Ex.PW1/5. Letter submitted by M/s Raj Construction for release of security amount is Ex.PW1/6, final bill submitted by complainant to ITDC Ex.PW1/7, forwarding letter is Ex.PW1/8, insurance papers Ex.PW1/9, measurement book seized from the office of the accused Ex.PW1/9. Complainant also deposed about identification of the voice of the accused and preparation of transcripts vide voice identification cum transcription memo Ex.PW1/10 to Ex.PW1/13. The trap money was produced and identified by the complainant as Ex.P-2. Similarly the memory cards were identified by the complainant in CBI vs Afzal Ahmad 8/65 his evidence and conversation was also played and confirmed by the complainant. The Complainant further explained that accused had written the amount on a sheet of paper as Rs.62,000/- to which complainant said that he will pay Rs.60,000/- in round figure. DVR has been produced and identified by the complainant as Ex.P-5. One white color cloth carry bag was also identified by the witness as Ex.P-6.
During cross-examination, complainant stated that he met the accused on several occasions from 2013 till submission of the final bill and he used to discuss about work assigned, work done and payment made. Complainant is the Managing Partner of the firm. The running bills were submitted before the final bill after which three bills were paid. The last bill was submitted to the extent of Rs. 23 /24 Lakhs. It was the responsibility of the Project Engineer to cross check the measurements on submission of bill. The services of Architect were hired by ITDC to whom the accused met once namely Smt.Garima. Final bill after deduction came out to be Rs.19,67,672/-. The amount was calculated and deducted by the project engineer Amit and final bill came out to be Rs. 19,67,672/-. to which the complainant agreed. Complainant denied the suggestion that accused pointed out and objected to CBI vs Afzal Ahmad 9/65 the bill being time barred as bill were to be submitted within three years. Complainant denied that he made a false complaint to CBI to implicate the accused. Complainant visited CBI for the first time on 20.02.2018. Complainant had met Architect on 16.01.2018 in connection with the final bill. On 20.02.2018 complainant did not give any written complaint as he was instructed to came along with the written complaint. The complainant met the accused on 16/17.02.2018 at his office at CGO Complex and after that he did not visit the ITDC office and went to CBI on 20.02.2018. The complaint was filed on 21.02.2018. The complainant was confronted with his statement under Section 161 Cr.P.C and also with the documents exhibited in evidence. Complainant admitted that he met the accused in his chamber and lifted his bag and told him to meet him near the car and thereafter, complainant walked along with the accused towards the parking area. Complainant has denied the suggestion that he has falsely implicated the accused.
Complainant also declined the suggestion that accused did not ask him to put the money in the dashboard or that money has been planted in the dashboard in connivance with the CBI officials. Complainant also denied that words have been manipulated and inserted in Q-1 and Q-2 and that after arresting the accused, he CBI vs Afzal Ahmad 10/65 was made to utter certain words which were inserted in Q-1 and Q-2. Complainant further denied that the reason for false implication of accused has been his refusal to clear the time barred bills. PW-1 denied that accused never demanded any money or accepted any money. Complainant further denied that documents were falsely created in the office of CBI or that he has made false statement in the court.
PW-2 Rajesh Kumar handed over the partnership deed of M/s Raj Construction to the Investigating Officer of the CBI Inspector C. M. Negi. He also proved production cum seizure memo Ex. PW2/A and partnership deed as Ex. PW2/B. PW-3 Pawan Kumar Verma is the witness related to the official documents which are office orders and joining report of accused Afzal Ahmad. The certified copies of the documents have been collectively proved as Ex.PW3/A. The production cum seizure memo has been proved by the witness as Ex.PW3/B. PW-4 V. B. Ramteke, Principal Scientific Officer (Chemistry), CFSL has deposed about chemical examination report Ex.PW4/A. The forwarding letter is Ex.PW4/B. The witness has given his report relating CBI vs Afzal Ahmad 11/65 to the presence of phenolphthalein and sodium carbonate in the solution contained in the bottle. Witness has also deposed about off-white color cloth Ex.P-9. During cross-examination, witness deposed that he did not examine the carry bag for any chemical test. PW-4 denied that report prepared by him is false and manipulated.
PW-5 Deepak Kumar Tanwar, Principal Scientific Officer (physics), CFSL, CBI has been expert in the field of forensic voice examination and physical examination of crime exhibits. In this case, he examined Q-1, Q-2, S-1 and DVR along with transcripts of questioned conversations. The spectrographic examination of voice containing in Q-1 could not be carried out due to non-availability of sufficient common words / sentences with respect to specimen voice of Afzal Ahmad. The auditory examination of question voices marked Ex.Q-1, Ex.Q- 2 and specimen voice of accused Afzal Ahmad Mark S- 1 was conducted and as per the witness they reveal similarity in the linguistic and phonetic features. The witness concluded that the voice mark Ex.Q-1 and Ex.Q-2 are the probable voice of accused Afzal Ahmad whose specimen voice containing mark Ex.S-1. Witness proved his report Ex.PW5/A. Exhibits were CBI vs Afzal Ahmad 12/65 also produced during the examination of the witness and were duly identified Q-1 as Ex.P-4, Q-2 as Ex.P- 4A, S-1 as Ex.P-4B and DVR as Ex.P-5.
During cross-examination, PW-5 deposed that introductory voice of the complainant was not recorded and only the introductory voices of independent witnesses were recorded. The witness had not compared the voice recorded in Q-1 and Q-2 with the specimen voice of the complainant. He was provided transcripts of conversation as contained in Q- 1 and Q-2. He denied the suggestion that he tendered wrong explanation with respect to the continuity of recordings. To ascertain the continuity of recordings contained in Q-1 and Q-2, witness conducted Wave Form, Spectrographic and Critical Auditory Examination and concluded that recordings are continuous and no formal tampering was detected. Witness admitted that no spectrographic examination could be conducted with respect to Q-1 and S-1, however, auditory examination was carried out. Witness did not find out the date and time of recordings in SD card and DVR as same was not asked for. There may be some other voices apart from the complainant and accused contained in Q-1 and Q-2.
CBI vs Afzal Ahmad 13/65Witness denied that his report is not correct or authenticated.
PW-6 Amit Narayan was supervising the work of Hatiya Dam Project at Ranchi and admitted that contract was awarded to M/s Raj Constructions and bills used to be submitted by Satyendra Kumar Singh (complainant). Witness has deposed about forwarding letter dated 16.01.2018 Ex.PW1/8 and the bill of the work of Hatiya Dam submitted in the office Ex.PW1/7. Witness signed these documents and made calculation of the final bill as Rs. 19,67,672/- vide Ex. PW6/A. The bill forwarding performa has also been proved by the witness as Ex.PW6/B. The request letter for release of security deposit is Ex.PW1/6 and the letter was received by him. PW-6 prepared the document 'release of security deposit' dated 24.01.2018 and forwarded the same to Afzal Ahmad. The said document is Ex.PW6/C. During cross-examination, PW-6 stated that he has no knowledge whether there is any time limit for final bill after completion of work. The actual date of completion of work as per the bill forwarding proforma was 20.04.2016. The job of this witness was to process the bill and submit to Headquarter. The witness has no CBI vs Afzal Ahmad 14/65 knowledge about final authority responsible for ultimate approval of the bills but he used to forward the bills to the accused. After forwarding the final bill with calculation, witness was called to the Headquarter and on seeing Ex.PW1/9 (measurement book Ex.PW6/DA), witness confirmed that bill for providing and laying brick soling was not allowed by the accused and he recommended for reduction of this amount. Ex.PW6/DA bears signatures of the witness as well as of the accused.
PW-7 Ankit Bansal was posted as Inspector CGST in the office of Assistant Commissioner and was directed to attend CBI office where he met Sub-Inspector Manish and was informed regarding the complaint of demand of bribe preferred by complainant Satyendra Kumar Singh. Witness further deposed about verification of the complaint whereby he remained with the complainant and has been a witness of the conversations recorded at the office of the accused. Witness deposed about Q-1. PW-7 also remained associated during the trap as he acted as a shadow witness and accompanied the complainant to the office of the accused. Witness stated that accused came to his office while he and complainant waited for him and complainant asked the accused where the amount is to CBI vs Afzal Ahmad 15/65 be paid to which the accused asked the complainant to meet him in the parking. It was closing time for the office. The accused and the complainant went inside the lift while the witness came down by stairs. After coming down, he saw the accused and the complainant moving out of the gate of scope building and they both went near the car of the accused which was in the parking area. At this time, the witness could not hear the conversations because he was at a distance but he saw the accused on the driver seat of his car and by the time he reached near the car, he could only hear accused saying to the complainant to keep in the dashboard of his car. Complainant kept the packet containing the powder coated notes in the dashboard of the car. Accused started moving his car when the signal was given to the CBI officials.
Witness deposed about the proceedings conducted by the TLO while apprehending the accused and taking the washes. The Office search memo has been proved as Ex.PW7/A, arrest memo as Ex.PW7/B and site plan as Ex.PW7/C. Witness deposed about recording of his introductory voice in the memory cards and also identified the same. Witness also identified the DVR. The witness also attended the CBI office in the month of May 2018 and participated in the voice CBI vs Afzal Ahmad 16/65 identification and transcription proceedings and identified the signatures on the relevant memos i.e. Voice identification memo as Ex.PW7/E, transcript of Q-1 as Ex.PW7/F and transcript of Q-2 as Ex.PW7/G. During cross examination, witness was confronted with his statement recorded under Section 161 Cr.P.C. The witness further denied that as per his location shown in the site plan Ex.PW7/C, he could not have heard the utterances made by the accused while sitting in the car. Witness denied the suggestion that there was no demand whatsoever from the accused nor any acceptance of money by him or that money has been planted in dashboard of his car to falsely implicate him. Witness denied that he never attended or participated in the proceedings conducted by CBI or that he is not stating the truth.
PW-8 V. S. Antil was posted as DGM (Civil), ITDC, Scope Complex, New Delhi. During investigation, he handed over relevant pages of the manual to the investigating officer which was seized vide Ex.PW8/A and the certified pages so handed over are Ex.PW8/B. Witness has detailed about the procedure for submission and clearing of bills whereby running or final bills are submitted by the contractor to the CBI vs Afzal Ahmad 17/65 Engineer Incharge who checks the bills as per the agreement and carries out the technical and arithmetical checks and thereafter forward the same to concerned Architect for certification. The Architect after attaching the certificate returns the bill to the Engineer Incharge who then forwarded the same to accounts branch for payment. Witness identified the voice of accused Afzal Ahmad and also the transcripts of the conversation prepared in his presence. Witness identified his signatures on transcripts of Q-1 and Q-2.
The memory cards were also played during examination of this witness and witness identified the voice of the accused.
Witness has been cross examined on behalf of defence during which he denied that complete recordings were not played before him or that only selective recordings were played. He denied that he wrongly identified the voice of the accused Afzal Ahmad or that he signed the transcripts at the instance of CBI.
PW-9 Krishan Kumar from the Transport Department, joined the proceedings of the present case and has been a member of trap team. Witness deposed about the complaint preferred by complainant and thereafter production of Rs.60,000/- (30 GC notes of CBI vs Afzal Ahmad 18/65 Rs. 2000 each) and treatment of currency notes with the phenolphthalein powder and demonstration thereof. The witness kept the powder treated currency notes in the pocket of jacket worn by the complainant. The witness also deposed about recording of his specimen voice in the memory card. Witness signed the proceedings of the case and deposed about apprehension of the accused by the CBI officials. Witness recovered the bribe money from the dashboard of the car of the accused which were the same currency notes. Wash of the cloth carry bag was also taken and solution was sealed in a glass bottle. The cloth carry bag was separately sealed. The statement of this witness was recorded during the investigation and also conversations were played at CBI office when the voices were identified by the complainant of himself and of the accused. Transcripts were also prepared in the presence of the witness. The witness identified the memory cards and DVR produced during his evidence and also various memos and documents signed by him including the site plan.
During cross examination, witness deposed that when he reached the parking area, accused Afzal Ahmad was already in the custody of three inspectors and was being interrogated. The specimen voice of the accused CBI vs Afzal Ahmad 19/65 was recorded in his office in a separate memory card carried by CBI officials. The Witness again said he cannot say if the specimen voice of the accused was recorded in the CBI office. Witness denied that he did not participate in the proceedings of the recovery or that memory cards have been manipulated. Witness also denied the suggestion that nothing was disclosed by the complainant or that nothing was recovered from the car of the accused or that he has made a false statement.
PW-10 Ravi Pandit was posted as General Manager, (Engineering HOD), ITDC in the year 2018 and he was removing authority of accused Afzal Ahmad who was Senior Manager (Civil). PW-10 accorded sanction for prosecution on consideration of CBI report, FIR, statements and documents. The Sanction is proved as Ex.PW10/A. According to the witness, at the time of incident, he was informed by CBI officials on 21.02.2018 and search of the room of the accused was taken in his presence. The Office search cum seizure memo (Ex.PW7/A) has been identified by the witness bearing his signature.
During cross-examination, witness deposed that accused was brought to his office on the day he was CBI vs Afzal Ahmad 20/65 apprehended and he was briefed about the incident. The accused was thereafter taken to the reception area but witness has no knowledge what proceedings were conducted there. The CBI team was still in the office when he left. His statement was recorded by the CBI but he does not remember whether it was recorded before or after the grant of sanction. The departmental enquiry was initiated against the accused. The recordings and transcripts were also placed before the witness but he does not remember whether the recordings were played before him or not. The witness has denied the suggestion that sanction was granted in a mechanical manner without consideration of documents or that draft sanction order was submitted or that he granted the sanction at the instance of CBI. Witness admitted that on account of implementation of GST clearance, bill was delayed. Witness was shown various official notes during his cross-examination to which he admitted as correct. Complainant had not lodged any complaint with him regarding the non- clearance of his final bill. Witness denied to be deposing falsely.
PW-11 Manish was posted as Sub-Inspector with CBI in the year 2018. The witness has conducted verification of the complaint of complainant Satyender CBI vs Afzal Ahmad 21/65 Kumar Singh by arranging DVR and memory card and by giving instructions to complainant and independent witness Ankit Bansal. PW-11 has deposed about verification proceedings whereby conversations of the complainant and accused were recorded at the office of accused at scope complex. The complainant informed that matter was discussed with accused Afzal Ahmad and by writing the same on a piece of paper, the complainant demanded Rs.62,000/- for clearing the pending bills to which the complainant agreed to pay Rs.60,000/- as bribe and accused nodded in affirmative. Complainant informed that paper on which the same was written was thrown away by him.
Recorded conversation was heard and thereafter memory card Q-1 was sealed in an envelope.
The proceedings were recorded in the verification memo / report Ex.PW1/2. The witness has identified his endorsement on the complaint Ex.PW1/1 at point X. The memory card Q-1 has been identified as P-4. The witness placed verification report with recommendation for registration of the case before SP, CBI and also handed over the DVR and brass seal to independent witness to keep the same in safe custody. The witness thereafter reported to Inspector H. V. Attri and was also the part of the trap team. The witness CBI vs Afzal Ahmad 22/65 deposed about pre-trap proceedings, memos preparation in this regard and also described about the conduct of the trap at the office of the accused and apprehension of accused and recovery of tainted money. The witness further deposed about preparation of site plan by TLO, conduct of car search of the accused, search of the office of the accused and intimation about apprehension of the accused to G. M. (Projects) Sh. Ravi Pandit and the custody of car along with keys were handed over to Suresh Chandra, one of the colleague of the accused. The recordings in the memory card Q-2 were heard in the presence of independent witnesses and specimen voice of the accused was recorded and the said memory card was marked as S-1. The trap money, cloth carry bag wash, cloth carry bag, memory cards Q-2 and S-1 and DVR were taken into custody through a recovery memo. The recovery memo has been identified as Ex.PW1/4.
During cross-examination, PW-11 stated that recovery memo was prepared at the spot i.e. scope complex with the use of laptop and denied the suggestion that recovery memo was prepared while sitting at the CBI office. Witness further denied the suggestion that he did not participate in the proceedings. On reaching the scope complex, no entry was made in the register. The CBI vs Afzal Ahmad 23/65 team was following the accused when he was going to the parking side. At about 8.00 p.m, the accused was brought upstairs to his office from the parking area and at that time Mr.Ravi Pandit and Mr.Chandra from the office met there. It took about one to two hours to complete the office search of the accused but he has no knowledge whether any employee from the office joined the office search. The witness could not recollect whether Ravi Pandit and Suresh Chandra remained with them or left the office prior to them. According to the witness, the verification proceedings were concluded in about three hours and complainant and independent witness Ankit Bansal were with him till the completion of the verification proceedings. It is denied that as per conversations recorded, there was no demand raised by the accused. The witness rather stated that there was a direct demand. The witness denied the suggestion that he did not properly verify the truthfulness of the complaint and on the basis of improper verification, the FIR was registered. It is denied that verification report was wrongly prepared. The witness could not notice any CCTV camera in the parking area. Other offices were also situated in the scope complex. The Q-2 was played and heard in the parking as well as upstairs in the office. Witness denied the suggestion that bribe money was planted in CBI vs Afzal Ahmad 24/65 the car or that there was no demand or acceptance by the accused. He further denied the suggestion that accused has been falsely implicated by creating false evidence.
PW-12 Suresh Chandra was posted as DGM (Electric and Mechanical), ITDC at the relevant time. According to the witness, accused Afzal Ahmad was apprehended by CBI officials and search memo was signed by the witness vide memo Ex.PW7/A. The witness thereafter also joined the proceedings at CBI office wherein he heard the recordings and signed the documents but the witness could not recollect whether he had identified any voice. However, the witness identified the signature on the voice identification memo Ex.PW7/E, Transcript of Q-1 Ex.PW7/F and Transcript of Q-2 Ex.PW7/G. Witness further stated that accused Afzal Ahmad was working in the same office and he was well conversant with his voice. The memory cards were played but the witness could not identify any of the voice.
The witness was cross examined by Ld. Sr. PP of CBI, during which he admitted that on 02.05.2018, memory cards were played at CBI office but he does not recollect whether any statement was recorded or not.
CBI vs Afzal Ahmad 25/65The voice identification memo Ex.PW7/E was signed by the witness and also by V. S.Antil who was DGM (Engineering Civil). At the CBI office, recordings were played in the presence of CBI officers and two other persons. Witness again said that voice identification memo was signed believing the same to be correct. It is admitted that witness was not pressurized at any point of time. The witness admitted that he is not in a position to identify the voice of the accused in the recording because of lapse of time and also due to effect of Covid-19. The witness was also cross examined on behalf of defence.
PW-13 Inspector CMS Negi was entrusted with the investigation of the present case. The file was handed over by Trap Laying Officer H. V. Attri. PW-13 deposed about preparation of transcripts in the presence of complainant and independent witnesses and identification of voice by the complainant vide memo Ex.PW1/10. Transcripts have also been proved by the witness in his statement. The parcels containing Q-1, Q-2, S-1 and DVR were sent to CFSL for analysis through letter Ex.PW5/DX1. On 02.05.2018 V. S. Antil, DGM (Civil) and Suresh Chandra, DGM (Electric and Mechanical) and two independent witnesses were called. The recordings in Q-1 and Q-2 CBI vs Afzal Ahmad 26/65 were played and the officers from ITDC identified the voice of accused in the recorded conversations. The voice identification memo has been proved by the witness as also the transcripts. Certified copies of the office orders pertaining to the joining of the accused Afzal Ahmad were also seized vide memo Ex.PW3/B. The original partnership deed of M/s Raj Construction was also seized. On receiving the sanction for prosecution from competent authority, the charge-sheet was filed by the witness.
During cross-examination, the witness could not collect as to when he collected the memory cards Q-1, Q-2 and S-1. The visiting register of the ITDC was not seized by the witness. The witness did not make any efforts to find out the piece of paper which was thrown by the complainant. The request letter seeking sanction has not been placed on record. The statement of sanctioning authority was recorded but not in that capacity but his statement was recorded being Incharge Officer of the accused. Witness denied that he had handed over the draft sanction and got the same signed from competent authority mechanically. Mr. Ravi Pandit was examined on 05.04.2018. The voice of the accused was not got identified from him. Witness denied the suggestion that he mechanically completed CBI vs Afzal Ahmad 27/65 the investigation and charge-sheeted the accused without there being any evidence. PW-13 further denied that purposely the material exonerating the accused was not brought on record or that the investigation conducted by him was partial or biased.
PW-14 H. V. Attari was posted as Inspector and acted as Trap Laying Officer on receipt of FIR Ex.PW14/A. The witness has deposed about pre-trap, trap and post- trap proceedings in detail and deposed about all the proceedings conducted with respect to the present case and also proved the documents prepared relating to the same.
During cross-examination, PW-14 stated that he did not hear the recordings done during verification proceedings. He did not make any enquiry regarding the paper on which the account details were mentioned by the accused. It is denied that complainant did not enter the scope building on 20.02.2018 or 21.02.2018 or that deliberately the visitor register of the scope complex was not seized. He did not hear the conversation between the complainant and the accused as they were not audible in the parking area. Inspector Harnam Singh carried out the search of the office of the accused under the directions of this witness. The CBI vs Afzal Ahmad 28/65 witness did not go through the files properly nor he verified the version of the complainant vis-a-vis these files at any point of time. It is denied that there was no demand or acceptance on the part of the accused or that money was planted by the accused or that the accused has been falsely implicated or that documents have been fabricated.
13. After closure of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C.
14. When questioned about each incriminating evidence appearing on record, accused pleaded innocence and false implication. Although it is admitted that project relating to Hathiya Dam was being executed by M/s Raj Construction and final bills relating to the work was forwarded by PW-6 Amit Narayan but the accused denied that the complainant came to his office to pursue the payment for about 20-25 times. Accused categorically denied that he raised the demand for clearing the bill and further said that he has no knowledge that during the verification, complainant along with Ankit Bansal came and recorded the conversations in DVR. The allegations of demand of Rs.60,000/- is absolutely denied. According to the accused, he has no knowledge about pre-trap or trap proceedings. Accused also expressed having no knowledge about recovery of Rs.60,000/- from the dashboard of his car and about the washes CBI vs Afzal Ahmad 29/65 of cloth carry bag. According to the accused, he did not accept the bribe amount. The search proceedings have also been denied by the accused. According to the accused, his arrest has been a matter of record. For the specimen voice, accused has stated that he was forced to speak some sentences by CBI officials. The accused stated that he has no knowledge about CFSL report relating to voice matching examination or chemical analysis of the wash. According to the accused, no proper examination of his voice was conducted to test the genuineness of the recorded conversations. With respect to sanction, accused pleaded that the same was granted in a mechanical manner at the instance of CBI without application of mind.
15. In his defence, accused has stated that he has been falsely implicated. Infact Architect was demanding money from the complainant. The complainant approached the accused with the grievance about Architect to which he asked him to give a formal complaint. The complainant even told the accused that he had already given bribe on different occasions to the Architect. In order to pay bribe to the Architect, the measurement book (MB) was manipulated by making interpolations at the instance of project engineer Amit Narayan. On checking the record, accused pointed out the said interpolations and found that the extra payment has been sought on account of underground work which was already completed in the year 2015. He called the project engineer and the contractor and pointed out to them about the CBI vs Afzal Ahmad 30/65 above discrepancy. They verbally agreed before accused that they have done so to enable them to pay the bribe to Architect. Accused also disallowed the extra payment and made the endorsement on the record. Accused also warned the project engineer for making such manipulations. On 18.02.2018 the project engineer resigned from his job by sending an email to accused. He was contractual employee. According to accused, he has been framed under the conspiracy by the project engineer and contractor and he is innocent.
16. Accused preferred not lead any evidence in defence.
17. I have heard Sh. Praneet Sharma, Ld. Sr. PP for CBI and Sh. Rajeev Mohan, Advocate for accused and also gone through the written submissions filed on behalf of defence.
18. Arguing on behalf of prosecution, Ld. Sr. PP for CBI contended that the present case is under Section 7 and 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act 1988. The accused is a public servant and has been working as Senior Manager, (Civil), ITDC, Scope Building, CGO complex, Lodhi Road and accordingly sanction for prosecution under Section 19 of Prevention of Corruption Act has been duly accorded by PW- 10 Ravi Pandit who has been the removing authority. The elements of offence under Section 7 of Prevention of Corruption Act mainly demand and acceptance of bribe / illegal gratification CBI vs Afzal Ahmad 31/65 have been duly proved with the direct testimony of witnesses. Sufficient evidence has been brought on record in the form of oral, documentary and electronic evidence. It is an admitted position that accused Afzal Ahmad was responsible for clearance of the final bill pertaining to the project completed by the firm of the complainant.
19. Complainant/PW-1 Satyender Kumar in his testimony has clearly spelt out the circumstances whereby accused Afzal Ahmad has demanded bribe from him for clearing the final bill for payment. It is evident from the record that file relating to the clearing of the bills, measurement book (MB) extra were being dealt with by the accused. In pursuance of the demand so raised, accused also accepted the bribe amount and this fact has been proved with the deposition of witnesses and with the recovery of bribe amount from the dashboard of the car of the accused.
20. Ld. Sr. PP further contended that presumption under Section 20 Prevention of Corruption Act 1988, arises against the accused, while the accused has failed to give any reasonable explanation in rebuttal. The conduct of the accused as explained by the witnesses is indicative of his guilt. The version of the prosecution is duly supported by independent witnesses namely PW-7 Ankit Bansal and PW-9 Krishan Kumar as their testimony remained strong on crucial ingredients of the offence particularly on the aspects of demand and acceptance of bribe by the accused.
CBI vs Afzal Ahmad 32/65The official witnesses of CBI have also remained consistent and cogent during their depositions and further the documentary evidence prepared during the proceedings, properly corroborate the prosecution version. There is nothing on record to suggest that witnesses of CBI were interested or influenced in any manner, nor the complainant or independent witnesses had any motive to falsely implicate the accused. Referring to the recorded conversations, Ld. Sr. PP asserted that original devices through which the recordings were done have been produced in evidence. The original DVR and memory cards could be produced and even the transcripts have been prepared and not disputed on behalf of defence. The parameters required for admissibility of electronic evidence are duly fulfilled. The expert analysis of memory cards further goes on to prove that conversations are in continuity and no tampering of any kind has been done. Voice matching could also be done by the expert witness with the specimen voice of the accused and even the independent witnesses from the department of the accused could identify the voices contained in the recorded conversations. The element of demand and acceptance are clearly coming forth in the recorded conversations. There are no material discrepancies with respect to the testimony of prosecution witnesses, the documents produced as well as recorded conversations which are sufficient to bring home the guilt of the accused. The charges against the accused are sufficiently proved and accordingly the conviction of the accused be recorded.
CBI vs Afzal Ahmad 33/6521. On the other hand, Ld. defence Counsel Sh. Rajeev Mohan argued that the case of the prosecution is false and baseless. It is asserted that sanction dated 21.06.2018 accorded against the accused is defective on three counts, firstly sanctioning authority participated in the investigation on 21.02.2018, secondly statement of sanctioning authority was recorded under Section 161 Cr.P.C wherein he deposed about the procedure for clearance of bills and in this way, PW-10 has participated in the investigation and thirdly in the recorded conversations Q-2, accused uttered some sentences against the conduct of Ravi Pandit and therefore no independence or neutrality remained with the sanctioning authority.
22. Ld. Counsel referred to the judgment of Mansukhlal Vithaldas Chauhan vs State of Gujarat, (1997) 7 SCC 622 to assert that the sanctioning authority has to be independent and should not be under pressure from any quarter. The discretion of sanctioning authority should not be affected by any extraneous consideration. Ld. Counsel also referred to Judgebir Singh @ Jasbir Samra @ Jasbir & Ors. vs National Investigation Agency, 2023 SCC Online SC 543 to argue that sanctioning authority should not be connected to the investigation. After completion of investigation, final report along with the evidence collected is submitted to the sanctioning authority who is supposed to apply its mind and accord or decline sanction.
CBI vs Afzal Ahmad 34/6523. It is next submitted on behalf of defence that no demand on the part of the accused as to illegal gratification is established. In Q-1 most of the dialogues have been spoken by the complainant and at no stage accused raised any demand of Rs.1.5 or 2 Lakhs or 50/ 60,000/- as alleged by the complainant. In his deposition, PW-1/complainant Satyender Kumar Singh has failed to narrate about the demand allegedly raised on 20.02.2018 rather the complainant said that he did not visit the office of ITDC on 20.02.2018 and also that after 16-17 February 2018 he did not visit the office of the accused. In this way, no specific date of demand is mentioned in examination in chief by the accused. In the verification memo Ex.PW1/2, it has been mentioned that the complainant started discussing the matter of his pending bill with the accused by writing on a piece of paper. The said paper was thrown by the complainant. At no stage of investigation, the said paper was seized nor any efforts were made. The said piece of paper was very important evidence but the prosecution has failed to produce the same which is a material lapse on their part. The version of the complainant as coming forward in his testimony is not corroborated by the recorded conversations. Even the specimen voice of the complainant was not recorded nor the same was matched with the questioned conversations. The recovery of bribe amount is also doubtful as witnesses have given different versions about cloth carry bag seized in the case from the dashboard of the car.
CBI vs Afzal Ahmad 35/65The cloth carry bag was not examined for the presence of Phenolphthalein powder.
24. It is further contended by Ld. defence Counsel that the final bill (Ex.PW1/7) was amounting to Rs.24,31,373/- whereas the amount of Rs. 19,67,672/- was approved vide Ex.PW6/A. The accused had cross checked the measurement book and cancelled the extra payment and finally allowed Rs.17,16,073.4/- vide Ex.PW1/9. It is also contended that mention of Rs. 62,000/- or Rs.60,000/- in the recorded conversations (Q-1) is not related to the gratification rather it is related to payment of bill under the project. Referring to the judgment of Neeraj Dutta vs State of NCT of Delhi, 2023 SCC Online SC 280, Ld. Counsel submitted that every demand cannot be said to be the demand of illegal gratification. The demand and acceptance must be proved beyond reasonable doubt in order to bring home guilt of the accused. In fact proof of demand and acceptance is sine-qua- non to establish the guilt of the accused under the provisions of Prevention of Corruption Act, 1988. The transcripts of recorded conversations were provided to the voice expert and therefore the expert analysis has been given on the lines suggested by the prosecution. Also there are contradictions, improvements and variations in the statements of prosecution witnesses with respect to the element of demand and acceptance of bribe and therefore, serious doubts are created about the prosecution story. Inconsistency in the complainant's testimony when compared to CBI vs Afzal Ahmad 36/65 the other key witnesses, raise valid concerns about accuracy and reliability of the prosecution witnesses. According to the defence Counsel, this is a false and baseless case against the accused. The facts and events of the case is projected by the prosecution itself explain false implication of the accused. For the aforesaid reasons, accused deserves to be acquitted in the interest of justice.
25. Written submissions filed on behalf of defence have also been considered. Following judgments have been relied in support of arguments:-
(i) Devi Lal vs. State of Rajasthan (2019) 19 SCC 447.
(ii) Sujit Biswas vs. State of Assam (2013) 12 SCC 406.
(iii) Sawal Das vs. State of Bihar (1974) 4 SCC 193
(iv) Soundarajan vs. State Crl. A./ 1952/2022 of Supreme Court.
(v) K. Santhamma vs. State of Telangna, Crl. A. No. 261/2022 of Supreme Court.
(vi) N. Vijaykumar vs. State of Tamil Nadu (2021) 3 SCC 687.
(vii) P. Satyamurthy vs. District Inspector of Police, State of Andhra Pradesh & Anr. (2015) 10 SCC 152.
(viii) CM Girish Babu vs. CBI, Kerala (2009) 3 SCC 779.
(ix) B. Jayaraj vs. State of A. P. (2014) 13 SCC 55.
(x) Mukhtiyar Singh vs. State of Punjab of Supreme Court.
(xi) Nepal Singh Rawal vs CBI (2011) 185 DLT 479 of Delhi High Court.CBI vs Afzal Ahmad 37/65
(xii) K. P. Konathai vs. State Cr.l.A 693/2009 decided on 09.08.2019 of Madras High Court.
(xiii) Bahadur Singh vs. State of M.P & Anr. (2002) 1 SCC 606.
(xiv) P. Oparasurami Reddy vs. State of Andhra Pradesh (2011) 12 SCC 294.
(xv) Khatri Hemraj Amalukh vs State of Gujarat of Supreme Court.
(xvi) Deny Bora vs. State of Assam (2014) 12 SCC 22. (xvii) Takaji Hiraji vs. Thakore Kubersingh Chamansingh (2001) 6 SCC 145.
(xviii)Suraj Mal vs State of (Delhi Admin) 1979 4 SCC 725 (xix) C. M. Girish Babu vs CBI, of High Court of Kerala. (xx) Tumaso Brunu vs. State of UP, Criminal Appeal No. 142 of 2015 of Supreme Court.
(xxi) Ankus Maruti Shinde & Ors. vs. State of Maharashtra (2019) 15 SCC 470.
26. I have duly considered the contentions of both the sides and examined the record of the case.
27. The accused has been charged for the offences punishable under Section 7 of Prevention of Corruption Act and under Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act. 1988. A public servant is said to commit the offence of criminal misconduct (under Section 13 (1) PC Act) if he by corrupt or illegal means, obtains for himself or any other person pecuniary advantage; or abuses his position as a public CBI vs Afzal Ahmad 38/65 servant and obtains for himself or any other person pecuniary advantage or by holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest.
28. A public servant is said to commit the offence punishable under Section 7 of Prevention of Corruption Act if he accepts or obtains or agrees to accept illegal gratification as a motive or reward for doing or forbearing to do any official act in the exercise of his official functions.
29. The first and foremost requirement for the prosecution is to prove sanction under Section 19 Prevention of Corruption Act, 1988. The law on this subject is well settled. In state of Maharashtra through CBI vs Mahesh G. Jain (2013) 8 SCC 119, Hon'ble Supreme Court culled out the principles of law relating to Sanction. The relevant portion of the said judgment is reproduced hereunder:
"14.1 It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.
14.2 The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.CBI vs Afzal Ahmad 39/65
14.3 The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.
14.4 Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.
14.5 The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.
14.6 If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.
14.7 The order of sanction is a prerequisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigations, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper-technical approach to test its validity.
30. In the present case, PW-10 Ravi Pandit has accorded the sanction vide order dated 21.06.2018 Ex.PW10/A. It is not in question that Ravi Pandit has been the removing authority of the accused and as such his competence to grant the sanction has not been challenged. However, the grant of sanction has been questioned on the grounds that PW-10 Ravi Pandit was not an independent or neutral authority as he remained associated with CBI vs Afzal Ahmad 40/65 the investigation and secondly that he has granted the sanction in a mechanical manner. On proper analysis of the sanction order, I am of the opinion that same has been granted on due application of mind by the sanctioning authority. The necessary material was placed before the sanctioning authority and on consideration of the same, sanction has been granted. It is true that on the day trap was laid, PW-10 Ravi Pandit and PW-12 Suresh Chandra were present in the office and information about trap was given to them. Even the search of the office of the accused was carried out in their presence. However, it is not the case of the prosecution that PW-10 Ravi Pandit remained associated with the investigation or related proceedings. The only role of Ravi Pandit on the day of trap has been that he was informed about the proceedings and he happened to be in the office.
31. It is also true that the statement of Ravi Pandit was recorded with respect to the procedure of clearance of bills under Section 161 Cr.P.C but in my opinion, this would not affect his capacity to grant valid sanction being the competent authority. The judgments Mansukhlal Vithaldas Chauhan (supra) and Judgebir Singh @ Jasbir Samra @ Jasbir & Ors. (supra) cited on behalf of defence to vitiate the sanction is not applicable to the present case as these judgments altogether deal with different fact situations. It is evident that PW-10 Ravi Pandit duly considered the material placed before him as the competent authority and on consideration of the same and with due CBI vs Afzal Ahmad 41/65 application of mind, sanction was granted by him. The pleas raised by the defence to vitiate the sanction have no merit or substance.
32. The next important requirement for the prosecution is to prove specifically the demand of illegal gratification by the accused. The legal position in this regard remains settled that proof of demand is sine-qua-non to prove the offence under Section 7 and 13 (1) (d) of Prevention of Corruption Act. Hon'ble Supreme Court reiterated the law on the subject in a recent judgment of Krishan Chander V. State of Delhi [AIR 2016 SC 298], and quoted with approval the law laid down in case titled P. Satyanarayana Murthy (AIR 2015 SC 3549). To quote:
"... In the case of P. Satyanarayana Murthy (AIR 2015 SC 3549, Paras 19, 20, 21 & 22) (supra), it was held by this Court as under:
"21. In State of Kerala and another V. C.P. Rao (AIR 2012 SCC (supp) 393), this Court, reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, the conviction cannot be sustained.
22. In a recent enunciation by this Court to discern the imperative prerequisites of Sections 7 and 13(1)(d) of the Act, it has been underlined in B. Jayraj (AIR 2014 SC (Supp) 1837) in unequivocal terms, that mere possessions and recovery of currency notes from an CBI vs Afzal Ahmad 42/65 accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) &
(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized could follow only if there was proof of demand.
Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not rise.
23. The proof of demand of illegal gratification, thus, is thegravamen of the offence under Sections 7 and 13(1) (d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two Sections of the Act. As a corollary failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused CBI vs Afzal Ahmad 43/65 of the offence under Sections 7 and 13 of the Act would not entail his conviction there under. ..."
33. In the recent judgment, Neeraj Dutta vs State (Government of NCT of Delhi) (2023) 4 SCC 731, Supreme Court has clearly down the principles in this context:-
88 What emerges from the aforesaid discussion is summarised as under:
88.1 (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.
88.2 (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
88.3 (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
88.4 (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and CBI vs Afzal Ahmad 44/65 the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)
(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)
(d) and (i) and (ii) of the Act.
88.5 (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering CBI vs Afzal Ahmad 45/65 whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
88.6 (f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
88.7 (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act.
88.8 (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5 (e), above, as the former is a mandatory presumption while the latter is discretionary in nature."
34. Basically "demand" precedes the complaint of corruption. No specific form of demand is the requirement of law. The demand can be expressed by words, gestures, signs, indications or even by adopting clever methodology so that the purpose of conveying the message is served. The making of demand is a matter of understanding between the person who demands and CBI vs Afzal Ahmad 46/65 the person who proceeds to pay. It is not necessary that the act for which the bribe is given, be actually performed. A representation by a public servant that he has done or he will do an act, impliedly includes a representation that it was or is within his power to do that act. Once the premise is established, the inference is to be drawn that said gratification was accepted as a motive or reward for doing or forbearing to do any official act.
35. Corruption is not a technical issue. It is simply give and take system to serve the purpose of bribe seeker and bribe giver. The demand may not be direct and categorical by the public servant but it should be clearly discernible from the evidence of his conduct. Moreover, it is not the requirement of law that demand must be proved by direct evidence. The element of demand can also be established through circumstances surrounding the transaction of acceptance or agreement to accept illegal gratification. The inference from the facts and attending circumstances however must be natural, probable and based upon the process of intelligent reasoning.
36. The genesis of the present case is complaint dated 21.02.2018 Ex.PW1/1 moved by the complainant Satyender Singh. He has mentioned therein about completion of work relating to development of Hathiya Dam, Ranchi and about pending payment of final bill and pendency of the same before accused Afzal Ahmad and about the demand of gratification of CBI vs Afzal Ahmad 47/65 Rs.60,000/- raised by the accused. Since complainant was not willing to pay the amount, he filed the complaint before CBI. The complaint Ex.PW1/1 is an important piece of evidence being the basis of first information report. A close reading of Ex.PW1/1 reveals that facts and allegations contained therein could have been in the personal knowledge of the complainant only. The details contained in the complaint are duly corroborated by the record whereby the pendency of the bill before accused Afzal Ahmad stands confirmed.
37. In his testimony, complainant deposed about approaching CBI with the complaint and about being part of the verification proceedings. The complainant has given his testimony in a strong manner standing firm on crucial elements of the case. The complainant at no stage exonerated the accused and at no point of time, controverted the version contained in the complaint. The truthfulness of the complaint is therefore established with the consistent testimony of the complainant. Although the complainant has not given the specific date of the demand in his testimony with respect to which the complaint Ex.PW1/1 was lodged but the complainant continuously maintained the version that the demand was raised by the accused for clearing the final bill. The complainant also deposed that he visited the office of the accused in connection with the payment of bill 20 to 25 times. Since, the complainant met the accused on several occasions in connection with the payment of his bill, it is quite CBI vs Afzal Ahmad 48/65 normal that actual date when the demand was raised could not be recollected by the complainant. Such lapse is natural and attributable to the human error.
38. It is not in dispute that final bill relating to the Hathiya Dam Project was pending clearance and accused was responsible for clearing the same. Nowhere, it is the case of the accused that there had been any other money transaction between him and the complainant. The defence has conducted lengthy cross- examination of the complainant with respect to the complaint Ex.PW1/1 and allegations so levelled but the defence has failed to shake the confidence of the complainant particularly with respect to the specific allegations of demand of bribe. The verification proceedings have also been duly proved with the testimony of complainant (PW-1), independent witness Ankit Bansal (PW-7) and verifying officer Inspector Manish (PW-11). From the verification memo Ex.PW1/2 and the conversations recorded through memory card Q-1 demand of bribe is clearly discernible. The memory card Q-1 was played in the court during the evidence and also at the final stage and on examining the same, the element of demand is clearly found as the accused replied in affirmative about his demand of Rs.62,000/- which complainant proposed to round off to Rs.60,000/-. The accused again agreed to round figure of Rs.60,000/- when complainant repeated to round off the same. The factum of demand is thus proved with the testimony of complainant, corroborated by CBI vs Afzal Ahmad 49/65 complaint Ex.PW1/1 and recorded conversations in Q-1 (Ex.P-
4).
39. The next important essentiality for the prosecution is to prove acceptance and recovery of bribe by the accused. Acceptance of illegal gratification by the public servant is an important ingredient. Once the acceptance is established, presumption under Section 20 of Prevention of Corruption Act 1988 invariably arises to the effect that bribe was accepted by accused as a motive or reward for giving favour in the matter in which the complainant has been interested.
40. The important witnesses on this point are complainant (PW-1), independent witness Ankit Bansal (PW-7), Krishan Kumar (PW-9), officials of CBI and TLO H. V. Attari (PW-14). The witnesses have detailed the sequence of events whereby pre- trap proceedings were conducted at CBI office and thereafter team proceeded to the ITDC office to lay the trap upon the accused. The complainant went to meet the accused along with DVR fitted with memory card. During this meeting, accused instructed the complainant to meet in the parking. At parking, accused opened the door of passenger' seat of his car and clearly directed the complainant to 'keep the money in the dashboard'. The bribe amount was accordingly kept by the complainant inside the dashboard of the car of the accused on a cloth carry bag. The complainant had given his testimony in a clear and CBI vs Afzal Ahmad 50/65 categorical manner that he kept the amount of Rs.60,000/- in the dashboard of the car of the accused at the parking. The conversations between the complainant and the accused were recorded as contained in the memory card Q-2 (Ex.P-4A). The transcript Ex. PW1/12 have been prepared in accordance with Q- 2 and it is evident that accused accepted the amount and got kept the same placed inside the dashboard of his car.
41. The witnesses who participated in the trap proceedings have also testified in favour of the prosecution and they have confirmed their participation in the pre-trap and trap proceedings. All the witnesses have consistently proved the factum of recovery of Rs.60,000/- from the accused. Complainant has remained categorical on his version that amount of Rs.60,000/- was given by him to the accused and later on when the trap team apprehended the accused, the amount was recovered. No motive could be attributed to the complainant or to any other prosecution witness for giving false testimony against the accused.
42. The presumption of law as contained under Section 20 Prevention of Corruption Act 1988, invariably arises in the facts and circumstances of the case. Although the presumption is rebuttable but same is required to be rebutted by proof and not by just explanation which may seem to be plausible, although the test of strict proof may not be required.
CBI vs Afzal Ahmad 51/6543. According to Section 20 of Prevention of Corruption Act, 1988:-
20. Presumption where public servant accepts gratification other than legal remuneration.--(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub- sections (1) and (2), the court may decline to draw the CBI vs Afzal Ahmad 52/65 presumption referred to in either of the said sub- sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn.
44. It was held in Madhukar Bhaskarrao Joshi Vs. State of Maharashtra (2000 (8) SCC 571) as follows :-
"The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premises that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it."
45. In the case B. Noha Vs. State of Kerala & Anr., 2006 12 SCC 277, it has been held by Supreme Court :
"When it is proved that there was voluntary and conscious acceptance of the money, there is no further CBI vs Afzal Ahmad 53/65 burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case ...."
46. The ratio of law as laid down in recent case V. Sejjappa vs. State by Police Inspector Lokayukta, 2016 3 JCC 1488 is that:
The initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and a presumption would arise u/s 20 of the Prevention of Corruption Act.
............mere recovery of money was not enough to draw the presumption under Section 20 of the Act.
47. In defence, accused pleaded that complaint is false and money has been planted in his car and words have been inserted in Q1 and Q2. It is also pleaded that bribe was demanded by the architect and in order to facilitate the same, incorrect entries have been shown by site engineer in measurement book to which the accused objected and reduced the amount. Accused also raised objections as the bill was time-barred and therefore, he has been falsely implicated. Accused has denied having accepted bribe amount from the complainant. However, all the above pleas CBI vs Afzal Ahmad 54/65 were not put across to the prosecution witnesses during their testimony. PW-6 Amit Narayan has been supervising engineer at the site at Ranchi. He made calculation of the final bill vide Ex.PW6/A. It is true that accused objected to inclusion of bill for laying brick soling and amount was slightly reduced but no suggestion was put to the witness that in order to bribe the architect, manipulations were made in the measurement book. Also there is nothing on record to suggest that accused raised objections as to the clearance of bill on account of having been time barred. Rather, accused has been discussing with the complainant details about the final bill and in this way represented to the complainant that he is in a position to clear through the final bill relating to the project. On appreciation of evidence, it is clear that accused has failed to rebutt the presumption about acceptance of money as gratification.
48. In view of above discussion, I conclude that prosecution has successfully proved the facts sufficient for raising the presumption while defence has failed to rebut or displace the presumption through proper explanation and evidence.
49. The recorded conversations are an important piece of evidence and the prosecution has heavily relied upon the same. The law of admissibility of tape recorded conversation is established through the judgments of Hon'ble Supreme Court. In R.M Malkani vs State of Maharashtra, (1973) 1 SCC 471 CBI vs Afzal Ahmad 55/65 Supreme Court laid down the essential conditions which, if fulfilled or satisfied, would make a tape recorded statement admissible otherwise not; and observed:
"Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. The contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act".
50. In the case of Ram Singh vs. Col. Ram Singh, AIR 1986 SC 3 it was held that:
"A tape recorded statement is admissible in evidence subject to the following conditions:
(1) The voice of the speaker must be identified by the maker of the record or other persons recognising his voice. Where the maker is unable to identify the voice, strict proof will be required to determine whether or not it was the voice of the alleged speaker.
(2) The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence direct or circumstantial.CBI vs Afzal Ahmad 56/65
(3) Possibility of tampering with or erasure of any part of the tape recorded statement must be totally excluded.
(4) The tape recorded statement must be relevant.
(5) The recorded cassette must be sealed and must be kept in safe of official custody.
(6) The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances."
51. The defence has raised questions about admissibility of recorded conversations by arguing that they are not substantive piece of evidence and prescribed guidelines for acceptance of audio recordings are not met in the present case. It is contended that tape recorded conversations can only be relied upon as corroborative evidence of conversations deposed by any of the parties and in the absence of evidence of any such conversations, the tape recorded conversation is indeed no proper evidence and cannot be relied upon.
52. The questioned conversations have been recorded on DVR through micro SD cards Q1 Ex.P-4 and Q2 Ex.P-4A. All these devices in original have been produced during the evidence and duly identified by the witnesses and in such circumstances, there is no requirement of furnishing certificate under Section 65 B of Indian Evidence Act.
CBI vs Afzal Ahmad 57/6553. Each person has distinctive voice with characteristics features. The technology is in a position to say whether two voice recordings are of the same person or of two different individuals. With the development of science and technology, the voice sample can be analyzed or measured on the basis of time, frequency and intensity of speech sound waves so as to compare and identify the voice of the person who must have spoken or participated in recorded telephonic conversations. Voice sample is "identification data" which can be used for the purposes of recognition of questioned voices.
54. The prosecution has examined expert witness PW-5 Deepak Kumar Tanwar on this aspect. On examining the credentials of this witness, I find that he is an expert in the field of voice identification and used scientific and advanced methods to compare the questioned voices. PW-5 has confidently answered all questions put across during his cross examination and there is no scope to disbelieve the expertise and report furnished by PW-5. Report is specific, clear, comprehensive and supported with reasons. There is no reason to doubt the credibility of expert witness who has done his job properly and elaborated the procedure adopted by him during the auditory examination. There has been no specific suggestion on behalf of defence that questioned voices are not of accused or that they do not match with the specimen voices. The expert report is a strong CBI vs Afzal Ahmad 58/65 piece of evidence and adds credibility to the genuineness of audio recordings.
55. To be more careful, the questioned micro SD cards have been played on the laptop and examined at the final stage. The conversations appearing in Q-1 and Q-2 are clearly audible, continuous and uninterrupted and matching with the specimen voices. The dialogues are naturally and mutually spoken by the speakers ruling out any possibility of editing and tampering. The voices are clearly audible and there is no disturbance. I therefore, conclude that recorded conversations (Q1 and Q2) fulfill all parameters of admissibility in terms of judgments of R.M Malkani Vs. State of Maharashtra and Ram Singh & Ors. (supra).
56. The complainant himself and official and independent witnesses have confirmed the factum of recordings through DVR and Micro SD Card. No substantial questions about authenticity of recordings have been raised during the cross examination of the witnesses. No question has been raised about the preparation of transcripts. The specimen voices have also been recorded particularly of the accused and voice matching has been properly done with the help of expert witness. Even the witnesses namely complainant Satyender Kumar Singh (PW-1) and V. S. Antil (PW-8) who have been acquainted with the voice of the accused have testified that the voice in the tape recorded conversations is of the accused. The audio recordings fully CBI vs Afzal Ahmad 59/65 support the prosecution version and elements of offences are established therefrom.
57. Further, on behalf of defence, it has been contended that there are inconsistencies and contradictions amongst the statements of prosecution witnesses and therefore the version of the prosecution is seriously doubtful.
58. It is settled principle of law that prosecution is required to bring clear and convincing evidence to prove its case beyond reasonable doubt but it does not mean evidence or proof to rigid mathematical precision. The evidence is to be examined as a whole and not with a narrow view to find flaws and lapses. The reasons and effects of contradictions and improvements in the statements of witnesses has been beautifully described by Hon'ble Supreme Court in Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, AIR 1983 SC 753. I would like to reproduce the same as under:
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise.
The mental faculties therefore cannot be expected to be attuned to absorb the details.
CBI vs Afzal Ahmad 60/65(3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
(4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(7) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him Perhaps it is a sort of a CBI vs Afzal Ahmad 61/65 psychological defence mechanism activated on the spur of the moment."
59. On proper analysis, I find that witnesses have been clear in their depositions. Each witness deposed about specific role assigned to him in the case. Some variations are natural and bound to occur in the process of recoding evidence but are not material so as to affect the credibility of prosecution case. It is convenient to point out lapses in depositions and documentary evidence, but lapses must be serious to indicate that prosecution case is absolutely baseless. The evidence has to be weighed and not counted, therefore number of witnesses examined does not matter if otherwise evidence is strong and convincing.
60. In the present case, witnesses have been put to rigorous and lengthy cross examination which must have been difficult if not torturous experience for the witnesses to say the least, and if there are any discrepancies in the statements of witnesses, same should be considered in the light of aforesaid situation. Even otherwise, I find that inconsistencies are minor in nature and are not material so as to render the case of prosecution wholly unreliable. In my opinion, the witnesses have stood their ground and I have no hesitation in holding that witnesses are truthful.
61. The defence has also raised questions about various memos and their contents, about timings and place of preparing said memos and about the manner in which they have been CBI vs Afzal Ahmad 62/65 prepared but on proper and careful examination of the same, I do not find any infirmities therein to discard the prosecution case. All the proceedings are recorded therein with proper sequence and details and are matching the deposition of prosecution witnesses. In my opinion, plea of innocence or false implication of the accused Afzal Ahmad has no merit or substance.
62. I have thoroughly examined and considered the defence statement (under Section 313 Cr.P.C) of the accused in the light of evidence appearing on record. According to accused Afzal Ahmad, the proceedings are manipulated and fabricated. The bribe money has been planted upon him. The accused pleaded innocence and false implication. According to the accused, money was demanded by architect and in this context, complainant approached him complaining about the architect. The accused suggested the complainant to give a formal complaint. It is also mentioned that complainant informed the accused that on earlier occasions also he gave bribe to the architect. The measurement book was manipulated for facilitating the payment of bribe to the architect and this was done at the instance of project engineer Amit Narayan. According to accused, he even confronted project engineer and contractor for this to which they verbally agreed and accused made endorsement on record and disallowed the extra payment and even warned the project engineer for such manipulation. It is further pleaded that project engineer resigned from the job by CBI vs Afzal Ahmad 63/65 sending e-mail to the accused on 18.02.2018. The accused has been framed under the conspiracy by the project engineer and contractor.
63. The above mentioned defence pleas could not be proved on record as no evidence in defence has been brought. Even the prosecution witnesses were not questioned on these aspects. No suggestion was put either to the complainant (PW-1) or to the project engineer Amit Narayan (PW-6) so as to confront or elicit their response as to the defence pleas. The accused has failed to place on record even the alleged e-mail about resignation of project engineer on 18.02.2018 nor such fact has been put to the project engineer when he appeared in evidence. At no point of time, suggestions were given to the project engineer PW-6 Amit Narayan about having framed the accused under some conspiracy. The defence pleas therefore, appear to be an afterthought and were not brought on record at the time of conducting cross examination of the crucial witnesses. The accused has pleaded planting of tainted money as well as manipulations of audio conversations by the CBI officers, however, accused has failed to prove on record any material to attribute any purpose or motive to CBI officials to create false evidence or to falsely implicate the accused in the present case. On proper analysis, I find no justification or reasonableness in the defence pleas taken by the accused.
CBI vs Afzal Ahmad 64/6564. In view of the aforesaid detailed discussion, I conclude that accused Afzal Ahmad raised the demand of illegal gratification of Rs.60,000/- from the complainant and accepted the same by misusing his official position as public servant and the offences punishable under Section 7 and 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 are proved as against the accused. Prosecution has been able to bring home the guilt of the accused beyond reasonable doubt.
65. In the result, I hold the accused Afzal Ahmad guilty and convict him for the offences punishable sections 7 and 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988.
66. Let the convict be heard on the point of sentence.
Announced in the open court on the day of 20th December 2023 (Anju Bajaj Chandna) Principal District & Sessions Judge-
cum-Special Judge (PC Act) (CBI), Rouse Avenue District Court 20.12.2023 CBI vs Afzal Ahmad 65/65