Delhi High Court
State vs S.P.Tyagi & Ors. on 16 May, 2014
Author: Indermeet Kaur
Bench: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on :12.05.2014
Judgment delivered on : 16.05.2014
CRL.A. 200/2006
STATE ......Appellant
Through: Mr.P.K.Sharma, Standing Counsel for
the CBI along with Mr.Rakesh
K.Sharma, Ms.Renu Malik and Ms.Soni
Mehra, Advocates.
Versus
S.P.TYAGI & ORS. .......Respondents
Through: Mr.Rajesh Harnail and Mr.V.K.Tandon,
Advocates for R-1.
Mr.Ajay Burman, Advocate for R-2.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
INDERMEET KAUR, J.
1 This appeal is directed against the impugned judgment dated 18.11.2002 wherein the appellant S.P.Tyagi and Sunil Kumar Choudhary had been acquitted of the charges leveled against them under Section 7 as also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act (hereinafter referred to as the "PC Act") and Section 120 B of the Indian Penal Code (IPC).
Crl.A. No.200/2006 . Page 1 of 14 2 Record shows that on the complaint (Ex.PW-2/B) of Ajay Kumar (PW-2) a pre-raid party was organized in which the shadow witness Dinesh Parkash (PW-5) and the recovery witness Rakesh Kumar (PW-7) were also asked to join the raid. Investigation was conducted by Inspector N.V.Krishnan (PW-9). This was pursuant to the complaint (Ex.PW-2/B) in which it had been alleged by the complainant that S.P.Tyagi was demanding a sum of Rs.1,00,000/- to give him a „no objection certification‟ for getting his factory licence from the MCD for his factory at M/s Kaithal Rubber and General Mills India at A-120, Okhla Phase-II, New Delhi. An advance Rs.20,000/- had been agreed to be paid by the complainant to S.P.Tyagi on 12.7.2001; since the complainant was unwilling to pay this amount he lodged this complaint with the CBI.
3 In the pre-raid proceedings 40 currency notes in the denomination of Rs.500/- which had been brought by PW-2 had been coated with phenolphthalein powder and a live demonstration was given in the presence of PW-5 and PW-7 by the investigating officer (PW-9) demonstrating that these notes which were already coated with phenolphthalein powder when dipped in a colourless solution would Crl.A. No.200/2006 . Page 2 of 14 turn pink. It was explained to PW-2, PW-5 and PW-7 that this money was to be handed over by the complainant to the accused only on his demand and at that point of time the shadow witness (PW-5) had to give the appointed signal. In the raid proceedings, the accused was caught red handed with the money which was recovered from his right hand pant pocket. His right hand wash and his right pant pocket were sent to the CFSL for examination and the FSL vide its report (dated 27.9.2001) had tested these washes positive for phenolphthalein. 4 The trap proceedings had also been tape recorded and specimen voice samples of the accused which had been taken vide memo Ex.PW- 5/D were also sent to the FSL for an expert opinion along with the questioned conversation and the report of the CFSL again confirmed the fact that the specimen voices of the accused i.e. of S.P.Tyagi and Sunil Kumar Choudhary matched the questioned voices.
5 The other documentary evidence i.e. the handing over memo Ex.PW-3/C and recovery memo Ex.PW-2/D were also relied upon by the prosecution to establish its case.
6 PW-2 the complainant, PW-5 the shadow witness and PW-7 the recovery witness, however, did not support the version of the Crl.A. No.200/2006 . Page 3 of 14 prosecution. They had been declared hostile and had been permitted to be cross-examined by the learned public prosecutor. In their cross- examination they denied the factum of the proceedings i.e. either of pre- trap or the post trap in the manner in which they had been depicted by the prosecution. Statements of all the aforenoted public witnesses including the complaint being that this sum of Rs.20,000/- was advanced payment for the contract work which had to be done by the contractor at the site before the NOC could be granted and since the contractor who had to receive this advance amount was not present at that time PW-2 persuaded S.P.Tyagi to receive this money on his behalf but S.P.Tyagi refused to accept the money; the money had fallen on the floor at which point of time the recovery had been effected. 7 On the basis of this evidence, the Special Judge had thought it a case of acquittal holding that the prosecution has failed to prove its case. 8 This judgment is the subject matter of appeal.
9 On behalf of the CBI arguments have been addressed in detail. It is pointed out that although admittedly PW-2,PW-5 and PW-7 have been declared partly hostile yet they have not denied the factum of the incident having occurred; PW-2 has admitted that he had handed over Crl.A. No.200/2006 . Page 4 of 14 GC notes in the sum of Rs.20,000/- which had been coated with phenolphthalein powder. Submission of the learned counsel for the CBI being that if PW-2 was not involved in the incident there could have been no occasion for him to hand over this money to the CBI officer; the specimen voice sample of the accused had been taken. It has been pointed out that the specimen voice samples of the accused were taken vide memo Ex.PW-5/D and the report of the CFSL exhibited through PW-3 also establishes that the questioned voices and the specimen voices were of the same person i.e. the accused persons showing that a conversation had taken place between a landline number by S.P.Tyagi to Sunil Kumar Choudhary on his mobile establishing the role of Sunil Kumar Choudhary at whose behest and on whose behalf this entire incident had taken place. The impugned judgment acquitting accused persons in this background has committed an illegality. The principle of res ipsa loquitur should have weighed in the mind of the Special Judge; this doctrine has been ignored. Reliance has been placed upon a judgment of the Apex Court in (2001) 1 SCC 691 M.Narsinga Rao Vs. State of A.P. to support a submission that even where the witnesses are declared hostile there being sufficient documentary evidence available Crl.A. No.200/2006 . Page 5 of 14 with the Special Judge; the presumption under Section 20 of the PC Act should have been invoked by the Court below and in this background the conviction of the appellant is called for.
10 Arguments have been refuted by learned counsels appearing for both the respondents separately. It is pointed out that on no count does the impugned judgment call for any interference. It is pointed out that apart from the fact that PW-2,PW-5 and PW-7 have totally negated the version set up by the prosecution, even otherwise it has come in the evidence of PW-2 that this sum of Rs.20,000/- had been taken by him as advance money for the contract work to be carried out at his factory before the NOC could be given to him and this is clear from his version on oath in Court. It is pointed out that the mobile no. 9811112447 relied upon by the prosecution as the phone of Sunil Kumar Choudhary has not been established as the documentary evidence annexed by the prosecution shows this phone was in the name of Sandeep Deswal and there is no connection of Sandeep Deswal with Sunil Kumar Choudhary.
11 Arguments have been heard. Record has been perused. 12 PW-2 was the complainant and the star witness of the Crl.A. No.200/2006 . Page 6 of 14 prosecution. He had admitted that he had given a complaint Ex.PW-2/B which was addressed to the Superintendant of Police (CBI). In this document it has been stated that for the purpose of issuance of an NOC from the Fire Department S.P.Tyagi had made a demand from him of Rs.1,00,000/-; as he did not wish to pay this huge amount he had made the aforenoted complaint. This complaint has been signed by PW-2 at point A. On oath in Court PW-2 had admitted that he had signed Ex.PW-2/A at point A. He has further deposed that although S.P.Tyagi had inspected his factory premises, he had told him that some initial work was required to be done which could be got done through a contractor who had estimated the expenditure to be Rs.1,00,000/- or so and a sum of Rs.20,000/25,000/- was required to be paid in advance. This proposal had been accepted by PW-2 and accordingly he had asked the contractor to come to the factory on 12.07.2001. PW-2 had made comparative checks with other factory owners and had found that this amount of Rs.20,000/- was excessive he had accordingly gone to the CBI office to explain this. Ex.PW-2/B was written by him in English and was signed by him at point A but PW-2 does not understand the english language although he can write it; this document was written by Crl.A. No.200/2006 . Page 7 of 14 him at the dictation of the CBI officer. PW-2 further admitted that raid party was organized and he had handed over 40 GC notes to the CBI officer which were coated with phenolphthalein powder; further version of PW-2 being that this money was to he handed over to S.P.Tyagi which he had asked S.P.Tyagi to take as an advance for the contractor as the contractor had not come to his factory on 12.7.2001. Further deposition of PW-2 being that even on his insistence PW-2 did not accept this advance money as a result of which it had fallen on to the floor from the table and when the CBI officers entered the room (on signal having been given by PW-5) they found the money lying on the floor. He denied the suggestion that this money was recovered from the pocket of the accused.
13 PW-5 was the shadow witness. He has also toed the line of PW-2 and has deposed that although he had joined the pre-raid party of the CBI for which Rs.20,000/- had been handed over by the complainant to a CBI officer but on 12.07.2001 at the time of raid the person who was present there and who had allegedly accepted this sum of money from the complainant could not be identified by PW-5. PW-5 had further deposed that he had heard someone stating that the contractor was likely Crl.A. No.200/2006 . Page 8 of 14 to come at the factory premises of PW-2 for the work which was required to be done by him and this sum of Rs.20,000/- was to be paid to him but he did not come. Further deposition of PW-5 being that in spite of insistence by PW-2 to Tyagi Saheb to take this advance amount Tyagi Saheb did not take the money as a result of which the money fell down on the floor from the table; when PW-5 gave the appointed signal Tyagi Saheb had gone out of the room and he had been brought inside the room from outside. He was evasive on the issue as to whether any hand wash or pocket wash of the accused S.P.Tyagi was taken in his presence. He was also evasive on the point as to whether any voice specimen of S.P.Tyagi and Sunil Kumar Choudhary had been taken in his presence which was documented vide memo Ex.PW-5/D. 14 Rakesh Kumar (PW-7) was the recovery witness. He has also deposed on the same lines as PW-2 and PW-5. PW-7 being outside the room and in the adjoining room from where the incident had taken place was even otherwise not in a position to know exactly what has transpired. He has on oath deposed that there was a conversation with the complainant and S.P.Tyagi but he (PW-7) being in other room did not know details of the conversation. When the appointed signal was Crl.A. No.200/2006 . Page 9 of 14 given and the raiding party had come into the room S.P.Tyagi was outside the room then he was brought in to the room; PW-7 noticed some currency notes lying on the floor.
15 The investigating officer N.V.Krishanan was examined as PW-9; after him the investigation was handed over to Inspector H.K.Lal (PW-10). PW-3 had proved the CFSL report wherein specimen voice samples of the accused (Ex.PW-5/D) and the questioned sample were examined and the report (Ex.PW-3/A) established that these voices tallied.
16 In this context the documentary evidence (Ex.PW-5/D) has been perused. Public witnesses (PW-5 and PW-7) had given evasive answers and have in fact denied the suggestion that these specimens voice samples of the accused persons were taken in their presence. The CFSL report (Ex.PW3/A) relates to the conversation which had been tape recorded from a landline no.6840764 installed in the premises of the complainant from where accused S.P.Tyagi had allegedly made a call on the mobile number (9811112447) of Sunil Kumar Choudhary (co- accused). Record shows that this mobile number was in the name of Sudeep Deswal. This is clear from the document filed by the Crl.A. No.200/2006 . Page 10 of 14 prosecution itself. On a specific query put to the learned counsel for the CBI in this Court he has no answer as to how Sudeep Deswal is connected to Sunil Kumar Choudhary. Learned counsel for the CBI has further drawn attention of this Court to a search memo (Ex.PW-8/B) evidencing the search of the house of Sunil Kumar Choudhary wherein in the search and seizure effected on 12.7.2001, 2 items had been seized. The second item was a Panasonic mobile having number 9811112447. Submission of the CBI being that this mobile number even if it was in the name of Sudeep Deswal was recovered from the house of Sunil Choudhary.
17 A perusal of Ex.PW-8/B shows that this second item i.e. the seizure of this mobile bearing no. 9811112447 has been written just below the first item in a spacing which is different from the rest of the document substantiating the submission of the learned defence counsel that this item no.2 which relates to the recovery of this mobile has been added later on. This has been fortified by the next line which follows and which states that only one item has been seized vide this memo; meaning thereby that there was no item no.2 (mobile phone) and thus this item no.2 had been added later on to evidence the recovery of the Crl.A. No.200/2006 . Page 11 of 14 mobile phone belonging to Sandeep Deswal from the house search of Sunil Choudhary.
18 There is yet another reason for discarding Ex.PW-3/A. This is for the reason that recovery memo Ex.PW-2/D shows that after the conversation had taken place between S.P.Tyagi and Sunil Choudhary on the aforenoted phones the cassettes had been seized and sealed in the presence of independent witnesses on 12.7.2001 itself. Further documentary evidence shows that the transcripts of this conversation had been prepared on 13.7.2001 which is evident from Ex.PW-5/C. When these cassettes were unsealed, when the transcripts were prepared and when the cassettes were resealed has not been answered by the prosecution?
19 In this background, the trial judge holding that there is no sufficient evidence with the prosecution to nail the accused has committed no fault.
20 The presumption under Section 20 of the P.C. Act is rebuttable presumption; it arises in favour of the prosecution only when the prosecution has able to lay down the first threshold i.e. proof of a prima facie case. This has not been done in the instance case. The judgment Crl.A. No.200/2006 . Page 12 of 14 of M. Narsinga relied upon heavily by the learned counsel for the appellant does not come to his aid as the facts of said case are distinct. In that case the two courts below i.e. the Special Judge and the Bench of the High Court had both found the accused persons guilty. The Supreme Court had not interfered with the said judgment holding that there are two consistent findings of fact by the Courts below; in that case the version of the accused was that money had forcibly been put into his pant pocket and he had not accepted the money. Facts of this case are clearly different. The defence of the appellant all along has been that a sum of Rs.20,000/- had been handed over by the complainant to S.P.Tyagi as a part of the advance which had to be paid to the contractor but since the contractor did not reach the factory on 12.7.2001 he insisted S.P.Tyagi to receive this amount; since S.P.Tyagi refused to accept this amount the money had fallen on to the floor. This has also been the consistent versions of PW-5 and PW-7. The role of Sunil Kumar Choudhary had surfaced in the disclosure statement of S.P.Tyagi. The said disclosure statement was never proved. It is not a part of the record. That apart the conversation of S.P.Tyagi and Sunil Kumar Choudhary which was sought to be proved through Ex.PW-3/A Crl.A. No.200/2006 . Page 13 of 14 has also been discarded in view of the discussion supra. 21 Thus on no count does the impugned judgment call for any interference. Appeal is without any merit. Dismissed.
INDERMEET KAUR, J MAY 16, 2014 ndn Crl.A. No.200/2006 . Page 14 of 14