Delhi District Court
Cbi vs . Ashok Jain on 31 October, 2012
1
IN THE COURT OF MS. RAVINDER KAUR,
SPECIAL JUDGE ( PC ACT), CBI-03
SAKET COURTS, NEW DELHI
C C No. 02/12
CBI Vs. Ashok Jain
S/o Shri Virender Prabhakar
R/o 3406, Bazar Sita Ram,
Delhi-110006.
R C No. 39(A)/2004/CBI/ACB/ND
U/S.7, 13(2) r/w Sec. 13(1)(d) of the P C Act, 1988
Date of Institution : 18.09.2008
Received by transfer on : 04.01.2012
Arguments concluded on : 18.10.2012
Date of Decision : 31.10.2012
JUDGMENT
1. The accused has been charged with and has faced trial for having committed offence u/s 7, 13 (2) r/w 13 (1) (d) of PC C C No.02/12 CBI Vs Ashok Jain Page No.1 2 Act,1988.
2. On 120804 complainant Rishi Pal lodged complaint with the CBI alleging therein that he had purchased H. No. 3497, Gali Bajrang Bali, Bazar Sita Ram, Delhi6 about four years back and that about 67 months back, he had started construction on the said property after demolition of the old structure. When the construction reached at the stage of roof of first floor, he was called by Ashok Jain, councilor and threatened that in case Rs.50,000/ was not paid to him, the building will be got demolished through the officers of the MCD. He refused to give the above said amount and as such, his house was demolished by the MCD officials. He further alleged that when he met Ashok Jain on 110804 for construction of the building, he told him that in case he wants to construct the building, he will have to pay Rs.
50,000/ as bribe by the next day evening. When the complainant informed that he had no arrangement of Rs.
50,000/, Shri Ashok Jain told him that on 120804 he will C C No.02/12 CBI Vs Ashok Jain Page No.2 3 have to pay Rs. one lakh as bribe in his office at Bazar Sitaram. Ashok Jain assured that once the amount is paid no MCD official will demolish his building nor he will get any notice from MCD. He further mentioned in the complaint that he could arrange Rs.50,000/ and as he did not want to pay the bribe, he requested CBI for taking legal action against Ashok Jain, Councilor.
3. The aforesaid complaint was entrusted to PW19 Inspector Anil Kumar for laying trap, who verified the complaint and then constituted trap team on 120804 wherein two independent witnesses namely M.C. Saxena and I.A. Siddiqui both from Vigilance Section, DTC Head Quarters, I.P. Estate and CBI officers were joined. The complainant produced 100 GC notes of Rs.500/ denomination. Inspector A.K. Singh treated these notes with phenolphthalein powder and gave practical demonstration about the reaction that takes place between the powder used on the notes and colourless solution of sodium carbonate C C No.02/12 CBI Vs Ashok Jain Page No.3 4 prepared in glass tumbler by making independent witness I.A. Siddiqui to touch these notes and then dipping his right hand fingers in the colourless solution and the result was the colourless solution turned into pink. After conducting the personal search of the complainant by independent witness I.A. Siddiqui the treated amount of Rs.50,000/ was kept in the right side pocket of the pant of the complainant and he was directed to hand over the bribe amount to the accused only on his specific demand and not otherwise. The shadow witness Shri M.C. Saxena was directed to remain close to the complainant and to overhear the conversation between the accused and the complainant and to watch the transaction if possible. He was directed to give signal by scratching his head with both his hands after the bribe transaction would be over. During pre trap proceedings the specimen voice of the witnesses was recorded in the DVR. As per direction the complainant contacted accused Ashok Jain on his mobile phone number 9811166702 from his mobile phone no.
C C No.02/12 CBI Vs Ashok Jain Page No.4 53200789 in the presence of witnesses Shyam Lal and Ninder Pal. The conversation between the two was recorded and was heard which revealed that the complainant had told the accused that he could arrange for Rs.50,000/ only and then the accused told him that he would not accept any amount less than Rs. One lakh. The said conversation was transferred in a blank audio cassette mark QA from the DVR and the cassette was sealed with the seal of CBI. The data of the said cassette was transferred in another cassette for the purpose of investigation. The DVR was given to the complainant with direction to switch it on before making contact with the accused. The complainant was also given a mobile phone bearing no. 9818095987 so that conversation between the complainant and the accused could be heard after activating the said mobile and recording the conversation between them by the trap team.
4. Since the accused had raised demand of Rs. One lakh as such the complainant on the directions of the TLO arranged C C No.02/12 CBI Vs Ashok Jain Page No.5 6 for Rs.50000/ more from his friend namely Sanjay Goel, who was present outside the office of CBI, in the presence of independent witness M.C. Saxena. The said additional amount of Rs.50000/ was then mixed up with the already treated amount of Rs.50000/ and was then kept in the right side pocket of the pant of the complainant by Shri M.C. Saxena and thereafter they both washed their hands with soap and water.
5. After completion of the pre trap proceedings the trap team reached the spot i.e. the office of accused Ashok Jain at 3406, Gali Bajrangbali, Sitaram Bazar at about 7.45 pm. Both the complainant and Shri M.C. Saxena went to the office of the accused whereas other members of the trap team and witness I.A. Siddiqui took their respective positions around the said office. The complainant and Shri M.C. Saxena came downstairs from the office of accused Ashok Jain at 7.58 pm and prefixed signal was given by Shri M.C. Saxena. The trap team along with both the independent C C No.02/12 CBI Vs Ashok Jain Page No.6 7 witnesses and the complainant entered the office of the accused where he was found sitting on the chair. On seeing the trap team, he rubbed his both the hands with pant. The accused was caught hold of by Inspector Surinder Malik and SI Prem Nath with his right and left hand wrist. The TLO disclosed their identity and challenged him as to whether he had demanded and accepted bribe of Rs. One lakh from the complainant for not getting the house of the complainant demolished but the accused denied to have demanded and accepted any bribe. The witness Shri M.C. Saxena disclosed that one Bhisham Kumar had prevented him from going along with the complainant to the second floor office of the accused. The complainant disclosed that the accused had demanded bribe by gesture of his hand and when he told him to accept Rs.50,000/ the accused uttered that he would not accept even a rupee less than Rs. One lakh and that the complainant will have to pay him Rs. Three lakh in total out of which rupees one lakh which he would take on that day C C No.02/12 CBI Vs Ashok Jain Page No.7 8 and balance of Rs. Two lakhs he would take lateron. The accused told the complainant that he will have to pay the penalty/tax of his complaint. The complainant further informed that he gave bribe of Rs. One lakh to the accused which he kept in his right side pocket of the pant after counting with both hands. The search of the accused and of his office was conducted but nothing was recovered. It is alleged that in the adjoining room a mattress was lying on the floor and underneath the same the bribe amount was recovered by witness I.A. Siddiqui in the presence of the witnesses and the accused. Thereafter post trap proceedings were carried out. The DVR was taken from the complainant and the conversation recorded therein was heard which confirmed demand and acceptance of bribe by the accused from the complainant. The conversation from the DVR was then transferred to the cassette mark Q1 and then sealed.
The accused was arrested. During investigation the specimen voice of the accused was taken. The transcription of the C C No.02/12 CBI Vs Ashok Jain Page No.8 9 conversation recorded in cassette QA and Q1 was prepared, the exhibits were sent to the CFSL for chemical analysis and experts opinion. After completion of the investigation the chargesheet was filed against the accused for his trial u/s 7, 13 (2) r/w 13 (1) (d) PC Act 1988.
6. On the basis of the allegations contained in the chargesheet, charge u/s 7, 13 (2) r/w 13 (1) (d) of PC Act was framed against the accused to which he pleaded not guilty and claimed trial.
7. In support of its case the prosecution has examined 22 witnesses.
8. PW1 is Shri Manoj Vats, who was working as LDC in Building Department, Sadar Paharganj Zone, MCD as diary dispatch clerk during the relevant period and proved the letter dated 130804 Ex. PW 1/A vide which he had informed that there was no complaint received in the said office w.e.f.
061006 to 310304 as per diary register records maintained in building department/SP Zone.
C C No.02/12 CBI Vs Ashok Jain Page No.9 109. PW2 Shri Gajender Kumar, was posted as UDC with SP Zone in August, 2004 and had informed the CBI vide letter Ex.PW2/A that as per the record no unauthorized construction was booked w.e.f. 010703 till 130804 in respect of property no. 3497, Gali Bajrangbali, Bazar Sita Ram, Delhi. He further testified that vide production cum seizure memo dated 190505 Ex.PW2/B he had handed over documents to the CBI i.e. the photocopy of the relevant entries in the on going register Mark PW2/D and the original On Going Register Ex.PW2/E. PW2 further testified that vide letter Ex.PW2/F the information was furnished to the CBI regarding the tenure of JE/AE posted in SP Zone from 010103 to 120804, regarding the details of on going stage of properties demolished by JE/AE as per original On Going Register and that as per the record upto 120804 property no. 3497 was not booked at any time. He testified that as per Diary Register of the office, complaint regarding property no.
3497 was received on 280503 which was entered at Sl. no.
C C No.02/12 CBI Vs Ashok Jain Page No.10 11942 and that another complaint was received on 300503 which was mentioned at Sl. no. 985. Though at the same time he testified that copies of these complaints were not available at the office as they were not returned by the JE A.K. Chopra. He further proved letter dated 190505 Ex.PW2/G whereby the details were furnished to the CBI with regard to the tenure of JE (B) SP Zone and AE (B) SP Zone for the period 010103 to 120804. He further proved letter Ex.PW2/H dated 280503 and the list of properties to be demolished in the month of June, 2003 as Ex.PW2/I. He stated that there was no entry of property no. 3497, Gali Bajrangbali in the said list.
10. PW3 is Shri Shyam Lal who was joined by the CBI in the proceedings on 120804. He is a witness to the Tape Recording Memo in case RCDAI 2004 A0039 Ex.PW3/A. He is also a witness to the photography memo dated 130804 and claimed that photography was conducted at 3497, Sitaram Bazar in his presence on that day and he identified C C No.02/12 CBI Vs Ashok Jain Page No.11 12 the negatives and photographs as mark PX1 to 9 and mark PX10 to 18 respectively. He claimed that the photographs and negatives were sealed with the seal of CBI and the seal was handed over to him for safe custody which he returned in the court during his testimony. He further deposed that in August 2004, he accompanied CBI officials to the office of CBI at CGO Complex where one tape recorder was installed.
Three persons were present in the said office. There were two telephones installed on which they were hearing the conversation. One telephone was handed over to him to hear the conversation and then to explain as to what was heard by him. He stated that he heard the conversation between two male persons who were discussing about giving and taking of money but it was not clearly audible. He further stated that he could make out that there were 3 or 4 persons who were conversing with each other. He further stated that whatever he could sense, was informed to the CBI. The conversation was recorded on the tape recorder which was C C No.02/12 CBI Vs Ashok Jain Page No.12 13 lying in the said room. The cassette in which the aforesaid conversation was recorded, was shown to the witness and he identified his signature thereon at point A and it was given Mark of identification PW 3/D1.
11. PW4 Shri Mahesh Chand Saxena was appointed as shadow witness. He deposed about the pre trap proceedings and the proceedings conducted after the accused was apprehended. He proved the bottles containing the wash RHW as Ex.PW4/A, LHW as Ex.PW4/B and RSPPW as Ex.PW4/C. He further proved the Recovery Cum Seizure Memo as Ex.PW4/D, Personal Search Memo as Ex.PW4/E and the site plan of the spot as Ex.PW4/F. He also joined the investigation on 130804 and proved the Specimen Voice Recording memo dated 130804 as Ex.PW4/G and the transcription of the conversation recorded on 120804 running in 13 pages as Ex.PW4/H and Ex.PW4/K respectively. He identified the pant of the accused which he was wearing at the time of the incident as Ex.PW4/J. He C C No.02/12 CBI Vs Ashok Jain Page No.13 14 identified the cassette Q1 as Ex.PW4/L and cassette Q2 as Ex.PW4/N, their inlay cards as Ex.PW4/L1 and Ex.PW4/N1 and their cloth parcel in which they were sealed as Ex.PW4/M and Ex.PW4/P. He further proved cassette Ex.S1 as Ex.PW4/Q its inlay card Ex.PW4/Q1 and cloth parcel Ex.PW4/R. He was crossexamined by the prosecutor since he did not support the prosecution case on some material aspects.
12. PW5 Shri I.A. Siddiqui, an independent witness, was also joined in the proceedings with the TLO. He deposed with regard to the pre trap and post trap proceedings and identified his signatures on the various memos. He too was declared hostile since he deviated from the case of the prosecution on some material facts and was crossexamined by Ld. PP.
13. PW6 is Shri Rishi Pal, the complainant in this case who did not support the case of the prosecution and though he admitted that he had lodged complaint Ex.PW6/A with the C C No.02/12 CBI Vs Ashok Jain Page No.14 15 CBI but he claimed that he mentioned in the complaint what was told to him by one Ram Babu, the Chairman MCD. He denied that the accused had demanded any bribe or had accepted any bribe from him. He admitted his signature on the various documents executed during pre trap and post trap proceedings but denied that these documents were prepared in his presence. He also denied having made any statement before the CBI on 130804 and 260505 respectively.
14. PW7 is Dr. Rajender Singh, Principal Scientific Officer and Head of Physics and Forensic Voice Identification Division, CFSL, who examined the questioned voice of accused Ashok Jain as contained in cassette QA and Q1 (which is inadvertently mentioned as X (A) during the testimony of the witness) with his specimen voice contained in cassette S1 (A). He proved his report as Ex. PW 7/A to the effect that he examined the questioned voice of Ashok Jain with respect to his specimen voice by auditory and C C No.02/12 CBI Vs Ashok Jain Page No.15 16 spectrography technique and he found that questioned voice of Ashok Jain tallied with his specimen voice.
15. PW8 is Shri P. Nath the chemical examiner who testified that he had examined the contents of the exhibit bottles marked as RHW, LHW and RSPPW. He proved his report as Ex.PW8/A that on chemical analysis of the exhibits the presence of phenolphthalein was found. He deposed that after examination of the exhibits the remnants of the exhibits along with the seals removed from the bottles were sent to the forwarding officer under his seal cover. It is observed that the three exhibit bottles were not shown to the witness by the prosecution during the course of his testimony.
16. PW9 Shri Avinash Chand Garg is the then Assistant Engineer officiating as SP Zone, Building Department, MCD and testified that the letter dated 280503 Ex.PW2/H was purportedly bearing the signature of the then Executive Engineer Shri Md. Ilyas. Regarding the OnGoing Register Ex.PW2/E, he testified that in the said register there was no C C No.02/12 CBI Vs Ashok Jain Page No.16 17 letter vide which the requisition was sent for police force to be sent in respect of property no. 3497, Gali Bajrangbali, Delhi. He also testified that in the letter Ex.PW2/H and its annexure Ex.PW2/1 there is no reference to the above referred property nor there is any entry dated 090603 in the OnGoing Register Ex.PW2/E regarding any unauthorized construction thereon.
17. PW10 is Shri Jai Narayan, who was posted in the office of SubRegistrar1, Kashmeri Gate, Delhi at relevant time and proved the sale deed of property no. 3497, Gali Bajrangbali, Delhi as Ex.PW10/PX dated 24062000 executed by Mukund Lal Chopra in favour of Rishipal Sharma.
18. PW11 HC Suresh Kumar produced the DD register B containing DD no. 31B, 33B and 44B all dated 090603 which were given mark of identification as mark PW11/PX1, PX2 and PX3 respectively. Lateron DD no. 33B and 44B were exhibited during the testimony of PW12 as Ex.PW12/A C C No.02/12 CBI Vs Ashok Jain Page No.17 18 and Ex.PW12/B respectively. He further proved entry at Sl.
no. 25 on page 87 in the demolition/information register relating to MCD/DDA Demolition programme maintained in the PSHauz Qazi commencing from the year 1999 as Ex.PW11/A and deposed that as per the same there was no programme of demolition of property no. 3497, Gali Bajrangbali, Bazar Sitaram, Delhi.
19. PW12 is the then SI Vijay Pal who was posted with PS Hauz Qazi on 090603. As per his testimony the demolition squad consisting of him and others had gone to the spot to provide support for demolition of property no. 3497, Gali Bajrangbali, Delhi.
20. PW13 is Md. Ilyas the then Executive Engineer, who deposed about the procedure of demolition unauthorized construction. Regarding the letters Ex.PW2/H and AnnexurePW2/I he testified that the same were addressed to DCP, Central District seeking police aid for demolition of properties mentioned in the Annexure PW2/I and that C C No.02/12 CBI Vs Ashok Jain Page No.18 19 property no. 3497 was not mentioned therein.
21. PW14 is Shri Mukesh Munjal, as per the prosecution he had clicked the photographs of the property in question.
However, when the negatives mark PX1 and PX9 and their positives mark PX10 to PX18 were shown to him, he stated that on the basis of the photographs he could not say that he had clicked these photographs.
22. PW15 is Shri Bhishan Kumar, who was working as Safai Karamchari with the MCD at the relevant time and as per the case of the prosecution was present at the office of accused at the time of raid. However, he did not support the case of the prosecution and was declared hostile. He denied having made any statement before the CBI.
23. PW16 is Shri Md. Ashraf Ali the then AE (B) SP Zone, MCD. He deposed that a complaint was received by him regarding unauthorized construction going on in the property no. 3497 which was marked by him to Shri A.K. Chopra to inspect the site and report. Further that on 090603 after C C No.02/12 CBI Vs Ashok Jain Page No.19 20 obtaining police force, he along with A.K. Chopra had gone to the site where they found the building under construction and the property was thereafter demolished on the same day.
This witness was also crossexamined by the prosecution as he was found resiling from his previous statement.
24. PW17 is Shri Sanjay Goel. As per the case of prosecution, the complainant had taken the additional sum of Rs.50,000/ from this witness. However, he did not support the case of the prosecution and was declared hostile but in his cross examination by Ld. PP, he failed to extract anything material.
25. PW18 is Ninder Pal, who testified that on 130408 some CBI officials had visited his office and he had accompanied them to the CGO complex where some cassettes were played in his presence but the same were not emitting any voice or sound. Though he testified that some photographs of vacant plot at Chandni Chowk were clicked in his presence but he could not tell the address of that place. He identified his C C No.02/12 CBI Vs Ashok Jain Page No.20 21 signature on the photography memo Ex.PW3/B, on the photographs mark PX10 to PX18, the cloth wrapper Ex.P2, cassette Ex.PW3/D1 and cloth wrapper Ex.PW3/D.
26. PW19 is Inspector Anil Kumar, the TLO who made a detailed statement right from the receipt of the complaint, pretrap proceedings and proceedings conducted after signal was received from the shadow witness M.C. Saxena. He testified regarding the entire investigation conducted by him.
He identified the currency notes i.e. the bribe amount as Ex.PW19/B1 to B24 and Ex.PW19/C1 to C152. He also proved all the relevant documents prepared during the pre trap and post trap proceedings.
27. PW20 Inspector Prem Nath, was member of the trap team and deposed on the lines of the case of the prosecution.
He had recorded the specimen voice of the accused on 130804 vide Specimen Voice Recording memo Ex.PW4/G and had also prepared the transcription Ex.PW4/H of the conversation between the complainant and the accused as C C No.02/12 CBI Vs Ashok Jain Page No.21 22 contained in cassette PW4/Q.
28. PW21 is Shri Om Prakash, had taken over the investigation of this case on 300804 from PW19 Inspector Anil Kumar and had recorded the statements of the witnesses and collected documents of ownership of the complainant in respect of property no. 3497, Gali Bajrangbali, Delhi. He had also seized the relevant record from PSHauz Qazi vide Seizure memo Ex.PW11/B and had carried out further investigation.
29. PW 22 is DSP Karan Arya. He testified that he took over the investigation of this case on 17.9.2008 and the investigation was already complete and he had only filed the chargesheet against the accused.
30. After completion of the prosecution evidence, the statement of the accused was recorded u/s 313 Cr.PC whereby he admitted that in August 2004 he was Councilor MCD Delhi within the area of Bazar Sitaram, Delhi and was public servant. However, he denied that PW6 was the owner C C No.02/12 CBI Vs Ashok Jain Page No.22 23 of property no. 3497, Gali Bajrangbali. He claimed that the property belongs to Wakf Board in terms of Notification dt.
04.04.1960 at Srl. No.43. He has denied the entire incriminating evidence appearing on the record against him and has claimed himself to be innocent.
31. I have heard the arguments addressed by Sh Umesh Chandra Saxena, Ld. Senior PP for CBI and Sh S C Buttan, counsel for the accused.
32. Sh Umesh Chandra Saxena, Ld. PP has argued that CBI has successfully proved the case against the accused. It is submitted that though the complainant turned hostile for some ulterior reasons, the case of the prosecution is proved vide the testimony of PW 4 and PW 5, both the independent witnesses as well as vide the testimony of PW 19, the TLO and PW 20 Inspt Prem Nath who was member of the trap team. He also argued that the chemical analysis report duly proved that accused had come in contact of phenolphthalein powder. Further, that the conversation between the complainant and accused recorded during the investigation proves the demand and acceptance of bribe by the accused.
C C No.02/12 CBI Vs Ashok Jain Page No.23 2433. On the other hand, Sh S C Buttan, the defence counsel has submitted that there are material contradictions in the testimony of independent witnesses and officials witnesses. There is no evidence of demand and acceptance of the bribe amount by the accused from the complainant. That the evidence led by the prosecution with regard to the recovery of alleged bribe amount from the adjoining room, is not clinching and there are material contradictions and discrepancies in the case of the prosecution to this effect which goes to the root of the case. It is submitted that though as per the prosecution PW 5 I A Siddiqui had recovered the bribe amount, however, the prosecution has failed to prove its case to this effect as PW 5 has denied that the recovery of the bribe amount was effected by him. Rather as per evidence on record, neither PW 4 nor PW 5 were present in the adjoining room at the time of alleged recovery. It is further submitted that merely on the basis that the colour of solution turned pink, the accused cannot be convicted. It is submitted that the tape recorded conversation cannot be relied upon as it is neither substantive piece of evidence nor the authenticity of such recording is proved.
34. After hearing the submissions of both the parties, I have gone through the material on record carefully.
C C No.02/12 CBI Vs Ashok Jain Page No.24 2535. Admittedly, the accused Ashok Jain was public servant within the definition of Sec. 2(c) of PC Act 1988 as on 12.8.2004.
36. Section 7 of the PC Act provides as under :
"Public Servant taking gratification other than legal remuneration in respect of an official act - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government of any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine."
37. In view of the various judgments of the Hob'ble Apex C C No.02/12 CBI Vs Ashok Jain Page No.25 26 court, the following requirements have to be satisfied to attract Sec. 7 P C Act, 1988:-
1 the accused at the time of the offence was, or expected to be a public servant;
2 that he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification; 3 that such gratification was not a legal remuneration due to him; and, 4 that he accepted the gratification in question as a motive or reward, for:
(a) doing or forbearing to do an official act, or
(b) showing, or forbearing to show favour or disfavour to some one in the exercise of his official functions; or ( c) rendering or attempting to render, any service or disservice to some one, with the Central or any State Government or Parliament or the Legislature of any State or with any public servant.
39. The prosecution is required to prove the above ingredients by way of acceptable and clinching evidence.
In State of Maharasthra Vs. Dnyaneshwar Laxman Rao Wankhede VI (2009) SLT 439, the apex court while discussing the ingredients of offence u/s 7 of PC Act inter alia held as under :
C C No.02/12 CBI Vs Ashok Jain Page No.26 27"Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in Section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. Even while invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt."
40. It is held by the Hon'ble Apex Court in the case of Banrasi Dass Vs State of Haryana, (2010) 4 C C No.02/12 CBI Vs Ashok Jain Page No.27 28 Supreme Court Cases 452 :
"It is settled cannon of criminal Jurisprudence that the conviction of account cannot be founded on the basis of inference. The offence should be proved against the accused beyond the reasonable doubt either by direct evidence or even by circumstantial evidence if each link of the chain of events is established pointing towards the guilt of the accused. The prosecution has to lead cogent evidence in that record so far as it satisfies the essentials of a complete chain duly supported by appropriate evidence.'' In Surajmal Vs. State (Delhi Administration) (1979) 4 SCC 725, it was held that :
"mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe."
41.To constitute an offence U/s 7 of P C Act, it is necessary for the prosecution to prove that there was demand of money and the same was C C No.02/12 CBI Vs Ashok Jain Page No.28 29 voluntarily accepted by the accused for doing a favour to the complainant in discharge of his official duties. Demand and acceptance of bribe is sine qua non to the conviction of the accused. Presumption U/s 20 of P C Act can only be drawn against accused, when prosecution proves by clinching evidence that accused demanded and accepted bribe from the complainant, in discharge of his official duties.
42. In the light of above principles we may examine the evidence on record with specific emphasis to the demand and acceptance of illegal gratification by the accused from the complainant, for not demolishing the unauthorized construction to be raised by the complainant on property No. 3497 Gali Bajrang Bali, Bazar Sitaram, Delhi. As observed by the Hon'ble Apex Court in the case of Suraj Mal, Supra., an accused can be convicted even in the absence of examination of the complainant, if it is proved otherwise that he has committed an offence. However, where prosecution is required to prove the fact of demand and acceptance of the money, then demand can only be proved by C C No.02/12 CBI Vs Ashok Jain Page No.29 30 the person to whom it is made. In the present case, the material witnesses regarding demand and acceptance of illegal bribe could have been PW 6, the complainant Rishi Pal and PW 4 Sh M C Saxena, the shadow witness. However, PW 6, the complainant has not supported the case of the prosecution and was declared hostile. PW 6, the complainant has testified that he had no complaint against the accused. He also testified that about 6/7 years ago he was called by Ram Babu Sharma, chairman MCD to his house where he was taken by ACP Rajbir Singh. He was informed that some dispute was going on between Ram Babu Sharma and the accused Ashok Jain who was then Dy Chairman and wanted to be chairman MCD. That he was instructed by Ram Babu Sharma that he alongwith one another person should approach the accused and discuss the matter regarding construction of some building. Thereafter ACP Rajbir Singh fixed particular time for their visit to the office of CBI where he was taken by one person sent alongwith him by Ram Babu Sharma. That on reaching the office of CBI he was told by C C No.02/12 CBI Vs Ashok Jain Page No.30 31 CBI officer that the complaint was ready and obtained his signature thereon. He also deposed that on the next day he alongwith the other persons and CBI officials went to the office of the accused at Sitaram Bazar and there he was asked to meet the accused in his room in the office. When he went to the second floor of his office, he found accused sitting alongwith two persons. That before going to his office he was given one envelope by the person who had accompanied him to the office of CBI and had instructed him to leave the same in the room of the accused but he could not do so as two persons were sitting there. He stated that he came out of the room of the accused and returned the envelope to the person who had given him the same and in return that person abused him for not obeying his directions. He also testified that he was questioned by ACP Rajbir as well on telephone as to why he had not done the act and that thereafter he had left the spot. He also testified that before he left the spot a jeep containing 8/10 persons reached there and these persons went to the office of the accused.
C C No.02/12 CBI Vs Ashok Jain Page No.31 3243. The complainant was declared hostile by the prosecution and was cross examined by Ld. PP. Nodoubt during cross examination by Ld.PP the complainant on being shown the complaint Ex.
PW 6/A admitted the same to be in his handwriting. However, he stated that whatever was told to him by Ram Babu, he mentioned in his complaint. PW 6 denied having made statement Mark PW 6/PX dt. 13.8.04 before the CBI, though Ld. PP read over and explained the entire statement to him in Hindi language during cross examination, as the statement was found recorded in English language as the witness claimed that he studied upto 6th standard and he could only read and write Hindi language. During his cross examination he admitted his signature on Production cum Seizure Memo dt. 27.4.05 Mark PW 6/PX-2, FIR Mark PW 6/PX-3, Handing Over Memo Mark PW 4/PX, Recovery cum Seizure Memo Ex. PW 4/D, Photography Memo Ex. PW 3/B, however he denied that these documents were prepared in his presence and claimed that the CBI officials used to send him the document for signature at his office and sometime they C C No.02/12 CBI Vs Ashok Jain Page No.32 33 used to call him to the office of CBI. In such circumstances the testimony of PW 6 is of no help to the prosecution as he has not testified that there was any demand of bribe by the accused from him as a motive or reward for misusing his public office by assuring not to get demolished the unauthorized construction to be raised by the complainant on property No. 3497, referred above. Here it is important to observe that Ld. PP did not give any suggestion that accused had demanded bribe as alleged in the complaint Ex. PW 6/A and that the accused also accepted bribe from him in his office and that thereafter the bribe amount was also recovered from the adjoining room of the office of accused. Nor complainant was suggested by Ld. PP that he had given telephone call to the accused from the office of CBI and accused had then demanded Rs. One lakh or their such conversation was recorded in the DVR. He was also not suggested that the conversation between them at the office of accused was also recorded in the DVR. No suggestion was given to the complainant that at the office of accused he C C No.02/12 CBI Vs Ashok Jain Page No.33 34 had demanded bribe from the complainant by gesture.
44. So far the other witness PW 4 M C Saxena is concerned, as per the case of the prosecution he was deputed as shadow witness alongwith the complainant but PW 15 Bhisham Kumar had stopped him on the first floor and did not allow him to go to the office of the accused on second floor of property No. 3406 Gali Bajrang Bali, Bazar Sitaram. PW 4 also testified on the same lines during his examination in chief. He testified that he was assigned the duty to remain alongwith complainant Rishi Pal and was told to make all possible efforts to accompany Rishi Pal to Ashok Jain and that in case he was not allowed to reach Ashok Jain, then he should stand near the door of the place where Rishi Pal would enter to meet Ashok Jain, that he was also instructed that after the deal would be over and if he overhear something, he should inform the members of the team. He stated that when he alongwith the complainant were about to go on the second floor of the building where the office of the accused was situated, the staff of Ashok C C No.02/12 CBI Vs Ashok Jain Page No.34 35 Jain prevented them on the first floor from going upstairs, heated arguments took place and in that process Rishi Pal had gone upstairs, whereas he was not allowed to go upstairs. From the aforesaid testimony of PW 4, it is crystal clear that he too did not hear the demand of bribe by the accused from the complainant nor he could see the transaction of bribe. None of the other witnesses examined by the prosecution have testified that they heard and witnessed the demand and acceptance of bribe by the accused from the complainant. The Ld. PP has submitted that as per the statement of complainant U/s 161 Cr. PC the accused had demanded bribe by gesture, however this fact has not been proved on record since it is only the complainant who could explain the manner in which the accused had demanded bribe from him but he did not support the case of the prosecution and as such there is no evidence on record that accused had demanded bribe even by gesture. As observed above, complainant was not even suggested by Ld. PP that demand was by gesture. Similarly, there is no evidence on record that the accused C C No.02/12 CBI Vs Ashok Jain Page No.35 36 had accepted the amount of Rs. One lac from the complainant as bribe. The reasons are obvious as the complainant has not supported the case of the prosecution and the shadow witness could not reach the office of the accused to see any such transaction between the two. The prosecution is relying upon the testimony of PW 4, PW 5, PW 19 and PW 20 that the bribe amount was recovered from the adjoining room of the office of the accused and that the accused had concealed the said amount under the mattresses and has also relied upon the tape recorded conversation in the cassettes Mark Q-A Ex. PW4/L and Mark Q-1 Ex.PW4/N, Mark S-1 Ex. PW 4/Q and Mark X as well the report Ex. of PW 7/A of PW7 Dr. Rajender Singh, Principal Scientific Officer, to the effect that the questioned voice of the accused recorded in the pre trap proceedings and during trap proceedings was found to be similar with that of his specimen voice contained in cassette Mark S-1 Ex. PW 4/Q. The prosecution has further relied upon the right hand wash, left hand wash and right side pant pocket wash of the accused that as per the report Ex.PW8/A, the right hand C C No.02/12 CBI Vs Ashok Jain Page No.36 37 wash ie RHW contained in bottle Ex. PW 4/A, left hand wash ie LHW contained in bottle Ex.PW 4/B and right side pant pocket wash contained in bottle Ex. PW 4/C confirmed the presence of phenolphthalein powder on both the hands and right side pant pocket of the accused.
45. Now we have to see what evidence has been led by the prosecution to prove the recovery of the bribe amount from the possession of the accused. As per the case of the prosecution PW 5 I A Siddiqui had recovered the bribe amount from under the mattress lying on the floor of the room adjoining the office in which the accused was sitting. It is also the case of the prosecution that the search of both the rooms was conducted in the presence of both PW 4 M C Saxena and PW 5 I A Siddiqui and that the recovery of bribe amount was effected by I A Siddiqui. However, there are material contradictions in the testimony of witnesses examined by the prosecution to this effect. PW 4 M C Saxena did not testify at all that the recovery of bribe amount was effected in his presence. To the contrary he testified - ''There was one another small room adjoining C C No.02/12 CBI Vs Ashok Jain Page No.37 38 the said room. Some CBI officials entered that room. Some mattresses were lying in that room which they removed and someone raised his voice in that room "Mil Gaye Mil Gaye". I was in the first room at that time.''
46. He was cross examined by Ld. PP. However, he was not put any question that the recovery of the bribe amount was effected in his presence. He denied the suggestion of the prosecution that as per the direction of Inspt Anil Kumar, it is PW 5 I A Siddiqui who had recovered the GC notes. During his cross examination by the defence counsel he categorically testified that he had not witnessed the search conducted by the CBI officials in the adjoining room. To this effect a portion of his statement is relevant which is reproduced as under:
" I had not witnessed the search conducted by the CBI officials in the adjoining room. Someone from that room raised alarm ''mil gaya mil gaya'. Nothing was recovered in my presence. Vol.-The money was brought by the CBI officials from the other room in my presence. Since recovery was not effected in my presence from the other room, C C No.02/12 CBI Vs Ashok Jain Page No.38 39 as such I cannot say that the money which was brought by the CBI officials from the other room was recovered from there or not."
PW 4 further testified during his cross examination by the defence that while the adjoining room was being searched by the CBI officials, he alongwith PW 5 I A Siddiqui were sitting in front of the accused in his office.
47.So far PW 5 I A Siddiqui is concerned, he testified that there were mattresses in the adjoining room of the office which were covered with sheet. On removing one of the mattresses, the currency notes were found lying therein and at the instance of one of the CBI officials he picked up the currency notes and handed over to the CBI officials. During his cross examination by the defence counsel, he took a summer sault and stated.
''I had not conducted the search of the office of accused or its adjoining room. Myself and Sh M C Saxena were sitting in the office of the accused where he was made to sit on his chair. One or two officials of the CBI were also sitting alongwith us. I had conducted the search of the accused and C C No.02/12 CBI Vs Ashok Jain Page No.39 40 the drawer of the table of the accused but nothing was recovered. The other members of the trap team were searching the adjoining room of the office of the accused. Before entering that room, the CBI officers had not offered their personal search to us or to each other. ''
48. Thus in view of the above evidence brought on record by the prosecution through the testimony of PW 4 and PW5, there is doubt that the recovery of the bribe amount was effected in the presence of both these witnesses. It is also observed that as per the testimony of both these witnesses, the search of the adjoining room of the office of the accused was not conducted in the presence of accused who throughout remained in his office. PW 5 has categorically testified that before the CBI officials entered the adjoining room they had not offered their personal search to them or to each other. As such, it creates doubt about the truthfulness of the case of prosecution that the bribe amount was recovered from under the mattress as claimed by the prosecution, was kept by the accused. Particularly in view of the circumstances that PW C C No.02/12 CBI Vs Ashok Jain Page No.40 41 4 M C Saxena testified that when the complainant had gone upstairs to the office of the accused he could hear heated arguments between Rishipal and one another person. As per the case of the prosecution such other person was none other than the accused. PW 4 further testified that he had seen the accused following Rishipal, the complainant while he was getting downstairs. He also testified that a quarrel had taken place between accused Ashok Jain as well as the members of CBI team and when the CBI officials asked him about the bribe taken by the accused, he denied having received any amount from the complainant. The question arises here that in case the accused had already accepted the bribe amount of Rs. One lac from the complainant, there was no reason for him to quarrel with the complainant or to have heated arguments. Even PW 5 I A Siddiqui testified in his chief examination itself that while they were proceeding towards the first floor, they heard, hot words were being exchanged between the complainant and the Ashok Jain and when they ( the trap team) reached the first floor and C C No.02/12 CBI Vs Ashok Jain Page No.41 42 started for the second floor they saw that the complainant and Ashok Jain, the accused were present at the staircase of the second floor and were exchanging hot words. All these circumstances have created a dent in the case of the prosecution that the accused had demanded and accepted the bribe from the complainant and the same was recovered from the room adjoining to his office. So far PW 20 Inspt Prem Nath is concerned, in his chief examination he testified that the bribe amount was recovered by PW 5 I A Siddiqui from the adjoining room. However, during his cross examination he testified that the entire trap team left the office of the accused after completion of the proceedings in respect of room ie the office of the accused and accordingly inference can be drawn that no proceedings were carried out in the adjoining room. The TLO PW 19 has also not testified in accordance with the case of the prosecution regarding the search of the adjoining room of the office. As per the testimony the same was searched by the CBI team and beneath the carpet the bribe amount of Rs. One lac was recovered, C C No.02/12 CBI Vs Ashok Jain Page No.42 43 whereas as per the case of the prosecution the recovery was effected by PW 5 I A. Siddiqui and that too from under the mattress and not beneath the carpet. PW 19 has nowhere testified that PW 4 and PW 5 were also present in the adjoining room at the time of the recovery of the bribe amount. All the circumstances have created doubt about the recovery of the bribe amount from the possession of the accused in the adjoining room.
49. Since there is no direct evidence of demand and acceptance of bribe by the accused and the evidence of recovery of the bribe amount from the room adjoining to the office of the accused is also not very clinching in view of the material contradictions in the testimony of the witnesses, thus it is to be seen whether the prosecution has proved its case by circumstantial evidence and whether all the links in the chain of the prosecution case are complete, pointing towards the guilt of the accused.
50. As per charge-sheet, complainant Rishi Pal had contacted accused on his mobile phone No. 9811166702 from his own mobile phone No. C C No.02/12 CBI Vs Ashok Jain Page No.43 44 32007890 from the office of CBI on 12.8.04 in the presence of PW 3 Shyam Lal and PW 18 Ninder Pal during verification / pre trap proceedings. The relevant portion of the testimony of PW 3 is reproduced as follows:
" In August 2004, I was posted as Postal Assistant with Lodhi Raod, Head Post Office, new Delhi. On that day at about 6pm, CBI officials, approached me at my office as they wanted some official from the post office to be a witness in some proceedings. Deputy Post Master Smt P Toppo, directed me to join the proceedings alongwith the CBI officials. On the same day I accompanied the CBI officials to the office of CBI at CGO Complex where one tape recorder was installed. There were three persons already present in the office. There were two telephones installed, on which they were hearing the conversation. Out of these two phones, one telephone was handed over to me to hear the conversation and then to explain as to what I heard on the telephone. I heard the conversation between two male persons they were discussing about of giving and taking of money but it was C C No.02/12 CBI Vs Ashok Jain Page No.44 45 not clearly audible. But I could make out that there were 3 or 4 persons who were conversing with each other. Whatever, I sensed I had informed to the CBI officers. The said conversation was being recorded on the tape recorder which was lying in the said room. May be there were two cassettes in which the said conversation was recorded. Both the cassettes were sealed separately in cloth pulanda and the seal was handed over to me. I had put my signatures on both the cloth pulandas in which the cassettes were sealed."
51. From the above testimony it is clear that PW 3 did not depose about the date of such conversation or who were those two male persons conversing with each other and what exactly was the conversation he heard. Rather he was also not sure that there were only two persons who were conversing each other, as in same breath he stated, there were three or four persons who were conversing. At the same time this witness claimed that the conversation was not clearly audible, though it was relating to giving or taking of money. Moreover, this witness C C No.02/12 CBI Vs Ashok Jain Page No.45 46 has nowhere testified that in which case the said conversation was recorded whether it related to the present case or some other case. Ld PP even did not put any leading question to the witness that this conversation had taken place on 12.8.04 and related to the present case. As per the charge-sheet, besides PW 3 Shyam Lal, PW 18 Ninder Pal was also present at the time of these proceedings. However, PW 3 did not depose about the presence of PW 18 in the office of CBI. At the same time, PW 18 Ninder Pal also did not depose that any such proceedings were carried out in his presence. Rather he did not testify at all that he was joined in any proceedings by the CBI on 12.8.04. As per his testimony he had joined the proceedings with CBI on 13.8.04 only in the evening hours. This witness was neither declared hostile nor was put any leading question by the prosecution in this regard, as such, his statement is deemed to be admitted to be correct by the prosecution. The arguments of Ld. PP that Tape Recording Memo Ex. PW 3/A is dt. 12.8.04 and is bearing the signature of PW 18 besides others, thus it is proved that it was C C No.02/12 CBI Vs Ashok Jain Page No.46 47 prepared in presence of PW 18 and whatever proceedings are mentioned therein were conducted in his presence, is of no consequence, as PW 18 has not deposed about any such proceedings. If he had deposed so, then the Tape Recording Memo Ex. PW 3/A could have been used to corroborate his statement. Inspt A K Singh whose signatures are appearing on the Tape Recording Memo Ex PW 3/A has not been examined to prove these proceedings or recording the spot trap conversation while being present in the office of CBI with the help of telephone No. 24362490 and mobile No. 9818095987. The TLO PW 19 under whose directions such proceedings were carried out has not uttered a word in this regard during his testimony. The cassette Mark X as mentioned in the memo Ex PW 3/A was also not played in the court during the testimony of any of the witnesses to prove the recording of the spot trap conversation between the complainant and the accused nor it was shown to any witness. The other witness who needs discussion in this regard is PW 20 Inspt Prem Nath who claimed to have C C No.02/12 CBI Vs Ashok Jain Page No.47 48 arranged for DVR for recording telephonic conversation between the complainant and the accused. He too did not depose of presence of PW 3 Shyam Lal and PW 18 Ninder Pal in these proceedings. As per the Handing Over Memo Ex PW 19/A the complainant was given mobile phone No.9818095987 so that by activation of said phone, the conversation between him and the accused could be heard and recorded in the office of CBI. However, as referred above, he did not support the case of the prosecution nor any question was put or suggestion was given to him in this regard during cross examination by Ld. PP. As such, the prosecution has failed to prove on record that any conversation between complainant and the accused at the spot was being heard by PW 3 and PW 18 and Inspt A K Singh while sitting in the office of CBI and was recorded in the DVR. The prosecution has also relied upon the telephonic conversation between the complainant and the accused recording during pre trap proceedings as well as spot trap conversation. It is observed that PW 4 during his examination- in -chief did not testify about C C No.02/12 CBI Vs Ashok Jain Page No.48 49 recording of any telephonic conversation between the complainant and the accused during pre trap proceedings. He only testified that before leaving the office of CBI, his voice as well as the voice of I A Siddiqui was recorded. It is only when the transcription Ex. PW 4/K was shown to him, he stated that it relates to the conversation between the complainant and the accused on telephone during pre trap proceedings. However, for reasons best known to the prosecution, neither the complainant nor PW 4 or PW 5 were made to identify the voice of the accused or even the complainant in both the cassettes Ex. PW 4/L and Ex PW 4/N purportedly containing the telephonic conversation between the complainant and the accused as well as spot trap conversation.
52. Ld. PP has further argued that there is sufficient circumstantial evidence on record to prove that the accused had demanded and accepted bribe. The prosecution has also relied upon the tape recorded conversation between the complainant and the accused, as contained in cassette QA Ex. PW 4/L, cassette Q 1 Ex. PW4/N C C No.02/12 CBI Vs Ashok Jain Page No.49 50 as well as cassette Mark X. The defence counsel has again argued that there is no material on record to rule out the possibility of the tampering of the tape recorded conversation or about its authenticity and thus it cannot be relied upon. It is further submitted that it is not a substantive piece of evidence but can only be used for corroborating the testimony of the complainant. I fully agree with the contention of the defence counsel that the tape recorded conversation is not a substantive piece of evidence. In the present case the complainant has not supported the case of the prosecution and thus any such tape recorded conversation proved to be in the voice of the accused with the complainant vide report Ex. PW 8/A, cannot be used even for the purpose of corroboration, as it is observed that during the examination of PW 6 the complainant, the cassette Q-1 Ex. PW4/N containing the alleged conversation between the complainant and the accused was not even played to seek the identification of the voice of the accused as well as the complainant. As observed above, the prosecution has not produced any evidence that C C No.02/12 CBI Vs Ashok Jain Page No.50 51 the cassette QA Ex. PW 4/L and Q-1 Ex.PW 4/N were kept in safe custody ruling out any possibility of their being doctored or tampered with. Again as referred above, the malkhana incharge has not been examined to this effect nor the register of the malkhana has been produced to prove that the cassettes remained in safe custody. The forwarding letter Ex PW 7/X vide which these cassettes were sent to the CFSL does not find mentioned that the specimen/sample seal/s were also sent alongwith the cassettes to CFSL for comparison. The receiving given by the office of CFSL on forwarding letter Ex PW 7/X does not reflect that any sample seals were received in the office of CFSL and it is simply mentioned thereon-"
Received four sealed parcels in Physic Division."
In such circumstances, the prosecution has failed to lead sufficient evidence on record that the cassettes and the other exhibits were not tampered with and were deposited in the CFSL in intact condition. As held by the Hon'ble Apex Court in the case of Ram Singh Vs Col. Ram Singh reported in AIR 1986 Punjab & Haryana C C No.02/12 CBI Vs Ashok Jain Page No.51 52 Supreme Court-3- ''every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context, and, therefore, inadmissible." It also held that " the recorded cassette must be carefully sealed and kept in safe or official custody.
53. It is settled law that merely on the basis of recorded conversation and transcriptions, prosecution cannot bring home the guilt of the accused persons. Court has to ensure existence of mandatory requirements. The CBI has not bothered to place on record primary evidence ie DVR. In such type of delicate cases, such DVR should be made case property. After all, DVR does not cost that big. There is no harm in transferring the contents from DVR to cassette, CD or DVD while taking adequate precautions but that does not mean that thereafter such DVR has to be held back from the court. Such DVR, by no means, is a primary piece of evidence. It is very handy and portable unit and, therefore, prosecution cannot claim that such unit was too C C No.02/12 CBI Vs Ashok Jain Page No.52 53 heavy to be transported to the Court.
54. The law regarding admissibility of tape recorded conversation has come up for discussion in several cases before the Apex Court recently in Nilesh Dinkar Paradkar Vs. State of Maharashtra, III (2011) SLT 35, the Apex Court held as under:
"30. In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification. Reliance can also be placed upon Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors., (1976) 2 SCC 17, Ram Singh & Ors . Vs. Col. Ram C C No.02/12 CBI Vs Ashok Jain Page No.53 54 Singh, 1985 (Supp) SCC 611, Mahabir Prasad Verma Vs. Dr. Surinder Kaur, (1982) 2 SCC 258''
55. I consider that in view of the discussions made herein above, the evidence regarding tape recorded conversation is not reliable piece of evidence.
56. CBI has heavily relied upon the fact that the colourless solution of sodium carbonate had changed its colour upon accused dipping his hands. The accused has denied in his statement U/s 313 Cr PC that in the colourless solution of sodium carbonate he had dipped his right hand. As per the case of the prosecution, the right side pocket of the pant Ex. PW 4/J of the accused was dipped in solution and it turned into pink. The accused has denied in his statement U/s 313 Cr PC that the pant Ex. PW 4/J belonged to him. It is submitted by the defence counsel that neither the hand wash of the accused was taken at the spot nor the pant Ex PW 4/J belongs to the accused. It is also submitted that as per the case of the prosecution the alleged amount of bribe amount was recovered from the adjoining room lying C C No.02/12 CBI Vs Ashok Jain Page No.54 55 under the mattress and the prosecution witnesses have deposed that when the complainant was coming downstairs he was followed by the accused and hot words were exchanged between the two, thus, if the accused had kept the bribe money in the pocket of his pant, he had no time to put it under the mattress. It is further submitted that no link evidence has been produced by the prosecution to prove that the so called bottles containing hand wash ie RHW and pocket wash ie PSPPW were kept in safe custody till they were sent to the office of CFSL. It is further submitted that even the forwarding letter vide which the exhibits bottles were sent to CFSL for chemical analysis has not been proved on record. I have gone through the material on record carefully. It is true that the prosecution has not proved the forwarding letter vide which the exhibits were sent to the CFSL nor it is found on record. The prosecution has also not proved on record as to when these exhibits were sent to the CFSL and who had carried the same from the malkhana. The malkhana incharge, the official who had carried the exhibit bottles to the CFSL C C No.02/12 CBI Vs Ashok Jain Page No.55 56 and the official who had received the same in the CFSL have neither been cited nor examined by the prosecution. There is no evidence on record that any specimen of the seal impression of the seals affixed on these exhibit bottles were also sent to the CFSL for comparison, to ensure that the exhibits examined by the expert related to the present case and there was no tampering. The malkhana register has not been produced to prove the deposit of these exhibits and other case property and its withdrawal for sending to the CFSL. PW 19, the TLO has nowhere testified that the case property was deposited by him in the malkhana. As such, a link is missing in the chain of the prosecution case.
57. CBI has miserably failed to prove its case against the accused. The quality of evidence produced by the CBI is weak in nature and not sufficient to invoke statutory presumption U/s. 20 of PC Act.
58. In view of the above discussion, accused Ashok Jain is acquitted of the charges U/s. 7 & 13(2) r/w Sec. 13(1)(d) of P C Act, 1988.
59. In terms of Section 437(A) Cr. PC, accused C C No.02/12 CBI Vs Ashok Jain Page No.56 57 Ashok Jain is directed to furnish bail bond in the sum of Rs.10,000/- with one surety in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bond shall be in force for 6 months.
60.Intimation be sent to the Jail Superintendent to release the accused in case he is not wanted in any other case, subject to furnishing of bond U/s 437-A Cr PC, referred above.
File be consigned to the Record Room.
Announced in Open Court Ravinder Kaur Today. Special Judge ( PC Act) Dated: 31.10.2012 CBI-03,Saket Courts, New Delhi C C No.02/12 CBI Vs Ashok Jain Page No.57 58 C C No 02/12 CBI Vs Ashok Jain 30.10.2012
Present: Sh.Umesh Chandra Saxena, Ld. Sr. PP for CBI.
Accused from J/C alongwith Ms Kiran Singh, proxy counsel for Sh S C Buttan, adv.
Order not ready.
Put up for order on 31.10.2012.
Ravinder Kaur Special Judge ( PC Act) CBI-03,Saket Courts, New Delhi/30.10.2012 C C No.02/12 CBI Vs Ashok Jain Page No.58 59 C C No 02/12 CBI Vs Ashok Jain 31.10.2012 Present: Sh.Umesh Chandra Saxena, Ld. Sr. PP for CBI.
Accused from J/C l alongwith Ms. Kiran Singh, proxy counsel for Sh S. C Buttan, adv.
Vide separate judgment announced in open Court, accused Ashok Jain is acquitted of the charges U/s. 7 & 13(2) r/w Sec. 13(1)(d) of P C Act, 1988.
In terms of Section 437(A) Cr. PC, accused Ashok Jain is directed to furnish bail bond in the sum of Rs. 10,000/- with one surety in the like amount to appear before the Hon'ble High Court as and when court issues notice in respect of any appeal or petition filed against this judgment. Such bail bond shall be in force for 6 months.
Intimation be sent to the Jail Superintendent to release the accused in case he is not wanted in any other case, subject to furnishing of bond U/s 437-A Cr PC, referred above.
File be consigned to the Record Room.
C C No.02/12 CBI Vs Ashok Jain Page No.59 60Ravinder Kaur Special Judge ( PC Act) CBI-03,Saket Courts, New Delhi/31.10.2012 C C No.02/12 CBI Vs Ashok Jain Page No.60