Delhi District Court
C.B.I. vs . Mangal Singh Arya on 22 December, 2012
IN THE COURT OF SPECIAL JUDGE (PC ACT) 01, CBI,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Special Judge (PC Act)
CC No.21/11
Unique Case ID No. 02401R0276062009
C.B.I. Vs. MANGAL SINGH ARYA
S/o. Late Sh. Jaghar Singh
R/o. C30/2, Street No.1,
Khajuri Khas, Delhi 110094.
RC No. : DAI2009A0007
u/Ss : u/S.7 & u/S.13(2) r/w S.13(1)(d) of PC, Act 1988
Judgment announced on : 20.12.2012
Date of order on sentence : 22.12.2012
ORDER ON SENTENCE
Present : Sh. D.K. Singh, Ld. PP for CBI
Convict in person with Sh. Yogesh Verma, Advocate
Arguments on the point of sentence heard.
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 1 of 4
1.0 Sh. Mangal Singh Arya has been convicted for the offence u/S.7
& S.13(1)(d) r/w S.13(2) of PC Act, 1988 for having demanded and accepted
illegal gratification from PW2 RK Choudhary.
2.0 Sh. Yogesh Verma, Ld. Counsel for the convict has submitted
that convict is around 58 years of age. His wife Smt. Rekha Rani aged 57
years is suffering from various ailments including spinal disorder, and
having undergone surgery last year requires constant attention. The convict
has two children. The elder daughter is married and the younger son is
pursuing MBA Course at Bangalore. Ld. Counsel submits that convict
Mangal Singh Arya is the only person to look after his ailing wife. Besides
this, he is also to look after his widowed sister, who also lives with him. Ld.
Counsel has prayed for a lenient view.
2.1 Sh. D.K. Singh, Ld. PP for CBI has submitted that appropriate
punishment may be awarded to the accused. Ld. PP submits that sentencing
is the domain of court, however, the CBI would request for the maximum
punishment.
3.0 The common man of this country is suffering the pain and heat
caused on account of rising corruption in the society. The corruption either
at the highest level or at the lowest level, ultimately affects the common man
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 2 of 4
of this country. The public servant represents the government in the eyes of
the public and any incident of corruption on the part of the public servant
shakes the confidence of the public in the system itself. The loss of
confidence in the governance has many ill effects including slow growth
rate, bad law and order and over all mismanagement in the society. The
people, on account of corruption, start having a perception that some persons
are above the law. The society looks upon the court in appropriate cases for a
maximum punishment so as to have deterrent effect on the society at large.
India as a country could have achieved much more had the incident of
corruption would not have been so high. Therefore, the duty of the court in
such cases is to award appropriate punishment taking into account the
interest of the society as a whole. While dealing with a case of corruption,
the Hon'ble Supreme Court in Surain Singh Vs. State of Punjab, 2009 II
AD (SC) inter alia held as under :
"Day in and day out the gigantic problem of corruption in the
public servants is on the increase. Large scale corruption retards
the nation building activities and everyone has to suffer on that
count. Corruption is corroding like cancerous lymph nodes, the
vital veins of the body politics, social fabrics of efficiency in the
public services and demoralizing the honest officers. The efficiency
in public service would improve only when the public servant
devotes his sincere attention and does the duty diligently, truthfully,
honestly and devotes himself assiduously to the performance of his
post."
4.0 In view of the facts and circumstances, taking into account the
circumstances of the convict, convict Mangal Singh Arya is sentenced to
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 3 of 4
RI for 3 years and fine of Rs.25,000/ in default SI for 6 months u/S.7 of
PC Act, 1988 and RI for 3 years and fine of Rs.25,000/ in default SI for
6 months u/S.13(1)(d) r/w S.13(2) of PC Act, 1988.
Both the sentences shall run concurrently.
Benefit of section 428 Cr.P.C. be given to the convict.
5.0 A copy of judgment and order on sentence be given to the
convict free of cost.
6.0 File be consigned to Record Room.
Announced in Open Court (Dinesh Kumar Sharma )
on 22.12.2012 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 4 of 4
IN THE COURT OF SPECIAL JUDGE (PC ACT) 01, CBI,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Special Judge (PC Act)
CC No.21/11
Unique Case ID No. 02401R0276062009
C.B.I. Vs. MANGAL SINGH ARYA
S/o. Late Sh. Jaghar Singh
R/o. C30/2, Street No.1,
Khajuri Khas, Delhi 110094.
RC No. : DAI2009A0007
u/Ss : u/S.7 & u/S.13(2) r/w S.13(1)(d) of PC, Act 1988
Date of Institution : 01.07.2009
Received by transfer on : 28.09.2011
Arguments Concluded on : 11.12.2012
Date of Decision : 20.12.2012
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Sh. Yogesh Verma, Ld. Counsel for the accused.
JUDGMENT
1.0 Accused Mangal Singh Arya has been charged and tried for the offence u/S 7 of PC Act, 1988 r/w 13(1)(d) as punishable u/S 13(2) of PC Act, 1988.
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 5 of 4 FACTS 1.1 RC DAI 2009 A 007 Ex.PW9/A was lodged on 3/2/09 on the basis of complaint Ex.PW2/A dtd. 3/2/09 lodged by PW2 Sh. RK Chaudhary. The complainant alleged that he is working as a Manager with M/s Luv Khush Security Agency 653, Sanjay Enclave, GT Karnal Road, Delhi. Sh. Anup Singh Arora is the proprietor of the company. MTNL East Zone had awarded the contract for security guards to the company for the period January 2007 to January 2009. The security company had deposited a security deposit of Rs. 7,52,858/ with MTNL. After the expiry of this contract, the company moved an application Ex.PW5/C dtd. 28/1/09 for release of the above said amount. However, accused Mangal Singh Arya who was posted as AGM (Admn.) East Zone, Delhi demanded a bribe of Rs. 50,000/. Accused threatened that if the bribe is not paid, he would not release the security amount. This complaint was assigned by SP CBI to Inspt. Pramod Kumar (PW9). Inspt. Pramod Kumar joined PW10 Rohit Kumar and independent witness PW1 Pranav Jha and conducted the verification proceedings. During verification proceedings, complainant PW2 RK Chaudhary contacted accused Mangal Singh Arya from his mobile No. 9899414413 on mobile No.9868135100 of the accused. During the first conversation, accused stated that he would call back after 05 minutes. After sometime, accused called back the complainant from his mobile No. 9868135100 on the complainant's mobile No. 9899414413. During this conversation, accused demanded a bribe from the complainant in the sum of CBI Vs. Mangal Singh Arya CC No. 21/11 Page 6 of 4 Rs. 50,000/ and agreed to accept a sum of Rs.25,000/ as part payment from the complainant on that day. The conversation was simultaneously recorded in the digital voice recorder.
The complainant produced a sum of Rs. 25,000/. Inspt. NVN Krishnan gave demonstration regarding reaction of phenolphthalein powder. The digital voice recorder was handed over to the complainant for recording the conversation between him and the accused. The complainant also informed that if somebody accompanies him to the accused, the accused may not accept the bribe. The pre trap proceedings were recorded in handing over memo Ex.PW1/B. During the preparation of handing over memo, Inspt. Pramod Kumar also joined another independent witness PW3 Ramesh Chand.
The CBI team consisting of complainant and independent witnesses proceeded to the office of the accused. The complainant went to the office of the accused and other members took their position outside. After sometime, the complainant came outside and gave the pre decided signal. On the identification of the complainant, the accused was challenged that whether he demanded and accepted the bribe from the complainant, on which the accused remained silent. The accused was caught with the wrists by the CBI officials. The senior officer, GM Sh. AK Srivastava was informed. Handwash of the accused in the freshly prepared solution of sodium bicarbonate and phenolphthalein powder were taken. On the identification of the complainant, the money was recovered by PW3 Sh. CBI Vs. Mangal Singh Arya CC No. 21/11 Page 7 of 4 Ramesh Chand from the right side shelf of his office table. The money was found on the book titled "Jeevan Jeene ki Kala".Wash of the said book was taken in the freshly prepared solution. The digital voice recorder was taken back from the complainant. The conversation recorded in DVR between accused and the complainant was transferred to CD. The sample voice of the accused was taken. The rough siteplan Ex.PW1/D was prepared. Accused was arrested vide arrest memo Ex.PW1/E. After completion of the proceedings, the recovery memo Ex.PW1/C was prepared.
On 25/3/09, in the presence of independent witnesses, the transcription of the recorded conversation was prepared. The necessary documents were collected from the MTNL office. The colour wash was sent to the CFSL. The CFSL in its report Ex.PW8/1 opined about the positive test for the presence of phenolphthalein. The cassettes were also sent to CFSL. The CFSL in its report Ex.PW12/A gave a positive opinion about the voice of the accused. It also specifically stated that no pause, discontinuity of speech could be recorded in the recorded conversation and therefore, the same might not have been tampered. After completion of investigation, the chargesheet was filed in the Court for trial.
CHARGE 2.0 Being a prima facie case, charge u/S 7 of PC Act, 1988 r/w 13(1)(d) punishable u/S 13(2) PC Act, 1988 was framed against the accused to which he pleaded not guilty and claimed trial.
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 8 of 4 EVIDENCE 3.0 Prosecution has examined 13 witnesses in support of its case. 3.1 PW1 Sh. Pranav Jha and PW3 Sh Ramesh Chand were the independent witnesses joined by the CBI. PW1 Sh. Pranav Jha, an employee of Canara Bank stated that he was instructed by his officer to visit CBI office. There he met the complainant. PW1 Sh. Pranav Jha proved the verification memo Ex.PW1/A. PW1 stated that he also went alongwith CBI to MTNL office and thereafter, alongwith the complainant, went to the second floor of the MTNL office. PW1 stated that complainant told that MTNL official would not accept the money in their presence. The witness stated that the complainant went inside the room and after 05 minutes he came out and told that MTNL official had accepted the money. Upon this information, 02 Inspectors and PW1 rushed towards the office of the accused. Accused met them outside the room, and he was taken into inside the room by CBI officials. PW1 stated that the accused had kept the money in the right side drawer of the table. PW3 Sh. Ramesh Chand recovered the money from the drawer of the table. The witness proved the recovery memo Ex.PW1/C, siteplan Ex.PW1/D and arrest cum personal search memo Ex.PW1/E. PW1 also proved the transcription memo as Ex.PW1/F. PW1 also proved right hand wash and left hand wash and book cover wash as Ex.P39, P40 and P41. The currency notes were identified as Ex.P1 to P38. In the cross examination, PW1 admitted that he had been the CBI Vs. Mangal Singh Arya CC No. 21/11 Page 9 of 4 witness of the CBI in another case also. Earlier also PW1 stated that while the complainant went inside the room, he i.e. PW1 was sitting in room of PA of accused. It also came in his testimony that PA room was situated in the same room where office of accused was situated and there was only a wooden partition upto roof with a complete door.
3.2 PW2 Sh. RK Chaudhary proved the complaint Ex.PW2/A. He stated that initially accused demanded money from Col. Anup Singh. The complainant stated that after filing of the complaint, he rang up accused on mobile No.9868135100 from his mobile No. 9899414413. This conversation was duly recorded. The complainant also proved the verification memo Ex.PW1/A. He stated that currency notes of Rs.25,000/ was produced by him. Handing over memo was proved as Ex.PW1/B. The complainant also stated that the GC notes were treated with phenolphthalein powder. The complainant specifically stated that he went to the room of the accused and wished him. The accused asked for money and he i.e. complainant handed over the money to accused and thereafter, immediately came out. The CBI officials rushed to the spot and recovered the money from the files / books lying on the table. The complainant proved the recovery memo Ex.PW1/C. He also proved the voice identification and transcription memo dtd. 25/3/09 as Ex.PW1/F. On certain points, the complainant had not supported the case of the prosecution and was cross examined by the prosecution. During the cross examination, the complainant stated that the GC notes were recovered CBI Vs. Mangal Singh Arya CC No. 21/11 Page 10 of 4 by CBI in his presence. During the cross examination by the prosecution, the complainant stated that money was demanded by gesture by the accused and only thereafter, he handed over the money to him. The complainant stated that the accused had taken the same with his hand. The CD containing the tape recorded conversation was duly played and it was observed by the Court that the quality of the audio was good and the conversation was quite audible. The complainant after hearing the entire conversation identified his voice and voice of the accused and also confirmed the conversation between him and the accused. The conversation was proved as Ex.PW2/C. While the CD was further played it was observed that except for few portions the voices were audible and the quality of the audio was clear. It was found that the contents of the CD played in the Court and transcription Ex.PW2/C are verbittum. The complainant was cross examined at length regarding his status in M/s Luv Khush Security Service. He was also cross examined at length regarding the fact that the contract was not awarded to M/s Luv Khush Security Service and was awarded to M/s Reach Security on which M/s Luv Khush Security Service was annoyed. The complainant denied the suggestion that accused was arrested from the PA room only while accused was washing his hands. He also denied the suggestion that the money was planted in the drawer of the accused, while the accused had gone to wash his hands in the PA room. The complainant admitted that Sh. Om Prakash Basata was his brother in law. However, he denied that he knew that Om CBI Vs. Mangal Singh Arya CC No. 21/11 Page 11 of 4 Prakash was a union leader nor he had any knowledge that said Mr. Basata was enemical to the accused.
3.3 PW3 Sh. Ramesh Chand another independent witness was mainly examined to prove the recovery. He was also witness to the handing over memo. In respect of recovery, PW3 stated that after the complainant gave the indication, he alongwith the CBI team entered the room and the accused was challenged to have received the bribe. The accused refused to have received any bribe and after the handwash of the accused was taken, search of bribe money was conducted and the money was found under the drawers lying on a book titled "Jeevan Jeene Ki Kala". The money was counted and recovery memo Ex.PW1/C was prepared. PW3 also denied the suggestion that accused was caught from the PA room while he was washing his hands.
3.4 PW4 Sh. Kuldeep Singh had granted the sanction and proved the sanction order as Ex.PW4/A. 3.5 PW5 Sh. Himanshu Kumar, Dy. General Manager and PW6 Sh. Anuj Kumar Srivastava, primarily were the witnesses regarding the procedure of awarding of contract regarding security service. In the cross examination, PW5 stated that the accused had received the letter dtd. 30/1/09 Ex.PW5/C for release of security deposit. The witness stated that the same CBI Vs. Mangal Singh Arya CC No. 21/11 Page 12 of 4 was marked to Sub Divisional Engineer on the same day for necessary action. The witness stated that on that day, the requisite documents were not filed alongwith the application.
PW6 Sh. Anuj Kumar Srivastava besides proving the documents and deposing about the grant of security contract, was also witness to the recovery memo Ex.PW1/C. PW6 stated that after being informed by Lady Inspector of CBI about the trap of accused, he went in the room of the accused and thereafter, recovery memo Ex.PW1/C was prepared. This witness was cross examined at length regarding the procedure of release of deposit.
3.6 PW7 Capt. Anuj Bhatia proved the call detail record of mobile No. 9899414413 as Ex.PW7/3. He specifically proved that there is an outgoing call from 9899414413 to mobile No. 9868135100 at 11:53am on 3/2/09 of 43 seconds. He also proved that there is an incoming call on mobile No. 9899414413 from mobile No. 9868135100 of 110 seconds at 11:53am on 3/2/09. In the cross examination, the witness stated that though he had not brought the original documents but the same were available in the office. It also came in the cross examination, that the location of 9899414413 while making the above said call was Cell ID 24362 which corresponds to the location in the vicinity of High Court, Central Delhi. He stated that the range of the area covered by a Cell Tower may vary from 0.5 km to 2.5 kms CBI Vs. Mangal Singh Arya CC No. 21/11 Page 13 of 4 in densely populated area, like Delhi. It is pertinent to mention here that CBI office should be within this range of High Court.
3.7 PW8 Sh. VB Ramteke, Sr. Scientific Officer (Chemistry), CFSL, proved his report as Ex.PW8/1 and stated that on chemical examination, the RHW Ex.P39, LHW Ex.P40 and BHW Ex.P41 gave positive test for the presence of phenolphthalein powder. The witness stated that the exhibits were analysed by physcochemical method, chemical test and thin layer chromatographic technique separately. In the cross examination, the witness admitted that the exhibits Ex.P41 is colourless. He voluntarily stated that pink colour of phenolphthalein in sodium carbonate solution has a tendency to fade away with time. The time depends on the volume of phenolphthalein and sodium carbonate. The witness also stated that the colour fades away due to change in properties of chemical. 3.8 PW9 Inspt. Pramod Kumar, trap laying officer made a detailed statement regarding the verification, handing over memo and the proceedings during the recovery of the currency notes. The witness stated that on the complaint of PW2, initially the verification was conducted by way of telephonic conversation between accused and the complainant and only thereafter, RC No. DAI/2009A0007 Ex.PW9/A was registered. Thereafter, PW3 Sh. Ramesh Chand and other CBI officials were joined. The complainant produced the GC notes which were treated with CBI Vs. Mangal Singh Arya CC No. 21/11 Page 14 of 4 phenolphthalein powder. Thereafter, the search of the complainant was taken and all the members of the raiding party washed their hands. The introductory voice of independent witnesses were recorded in the digital voice recorder and thereafter, the digital voice recorder was put in the pocket of the complainant. PW1 Pranav Jha was appointed as shadow witness and PW3 Sh. Ramesh Chand was appointed as recovery witness. The complainant was directed to handover the money to accused only on demand. The trap kit was prepared and the team left for the office of the accused in two vehicles. The complainant went inside the room of the accused and remaining persons took positions outside. After sometime the complainant came back and told that accused had demanded the money and he had given the same to the accused. On this, the raid was conducted. The accused was found sitting on his chair at that time. On being challenged, accused could not speak anything and became panic and started sweating. PW6 was called and thereafter, handwash of the accused was taken. The solution turned pink. PW3 Ramesh Chand recovered the money lying on the book. The right hand wash, left hand wash of the accused and the book cover wash was taken, which turned pink. The digital voice recorder was switched on and played and the conversation was transferred in the CD. The recovery memo was prepared. The sealed articles were sent to CFSL. Inspt. Pramod Kumar was also cross examined at length regarding status of M/s Luv Khush Security Services. He was also cross examined at length regarding the digital voice recorder and transfer of conversation. Inspt. Pramod Kumar denied the CBI Vs. Mangal Singh Arya CC No. 21/11 Page 15 of 4 suggestion that money was provided to the complainant by the CBI itself. In the cross examination, IO stated that lateron he came to know that accused was taking lunch at that time and he had washed his hands before that. 3.9 PW10 Sh. Rohit Kumar, another member of the raiding party made a consistent and corroborative statement on oath. 3.10 PW11 Sh. Rakesh Soni proved the call detail of mobile No. 9868135100 as Ex.PW11/B. In the cross examination, PW11 admitted that there is no certificate u/S 65 B Evidence Act nor he had taken the call record from the computer.
3.11 PW12 Dr. Rajender Singh, Principal Scientific Officer and Head of Physics & Forensic Voice Identification Division, proved his report as Ex.PW12/A. In the cross examination, PW12 admitted that he did not demand the original device wherein the said original conversation was recorded.
3.12 PW13 Inspt. Gaurav Singh had filed the chargesheet after completion of investigation.
STATEMENT OF ACCUSED 4.0 Accused Mangal Singh Arya in his statement u/S 313 Cr.P.C. CBI Vs. Mangal Singh Arya CC No. 21/11 Page 16 of 4 denied all the allegation and stated that he never talked to Col. Arora nor had any conversation with the complainant. PW2 had no concern with the security agency and he had never talked to him. The accused stated that when PW2 RK Chaudhary came inside his room, he was taking lunch. PW2 shaked hands with him before he (accused) washed his hands. In the meanwhile, complainant came outside the room and stated that 'kaam ho gaya hai" and all the persons entered in his room and apprehended him. Accused stated that no such transaction took place as alleged. Accused stated that he had no knowledge about the money and complainant told that money was lying in the table drawer. Accused stated that the solution did not change colour at all and the currency notes were planted upon him. Accused stated that sanction granted was invalid in the eyes of law. In respect of the call detail records, the accused though admitted it to be matter of record, however, stated that the same are not admissible piece of evidence. In respect of expert opinion also accused stated that the report is bias and motivated. The accused stated that the competent officers to award the contract were DGM and AGM and he was only the conveying officer. On behalf of Luv Khush Security Agency, Mr. AS Arora and Mr. Vinay used to to meet him. The contract of M/s Luv Kush Security Agency was for 2 years from 10/1/07 to 10/1/09 and there was no provision for extension except with the permission of DGR, Ministry of Defence. Accused stated that he observed that complainant PW2 used to sit with his clerk namely Sh. OP Basata. Accused further stated that in September, 2008, after the process for CBI Vs. Mangal Singh Arya CC No. 21/11 Page 17 of 4 grant for new security agency was initiated, the contract was awarded to M/s Reach Security on which the complainant filed an RTI in the name of Pratap Security Agency informing that there was due of around 1,70,000/ towards M/s Reach Securities on the account of PF and ESI and therefore, contract cannot be awarded to them. However, on enquiry nothing was found against M/s Reach Securities. Accused stated that on 7/1/09, after getting all the requisite permissions the agreement was signed with M/s Reach Securities, as it had become time barred. The complainant was not satisfied with the reply of the aforesaid RTI. Accused stated that M/s. Luv Kush Security have been trying for extension of the contract and his GM also marked the letter for extension of the contract to M/s Luv Kush Securities, even though the agreement in favour of Reach Securities had been finalized. The request for extension of contract was declined and the same was informed to M/s. Luv Kush Security by the accused. Accused stated that complainant was working as a Commission Agent or doing liasion work for 23 security agencies including M/s Luv Kush Securities and therefore, out of revenge he filed a false complaint against him. Accused further stated that on 30/1/09, complainant gave him a letter for refund of security which was marked by him on the same day. Accused stated that CBI intentionally did not make Mr. AS Arora and Mr. Vinay as witnesses.
DEFENCE EVIDENCE 5.0 Accused examined two witnesses in his defence. DW1 Idrish CBI Vs. Mangal Singh Arya CC No. 21/11 Page 18 of 4 Ahmed stated that on 30.01.2009, an application Ex. PW5/C from M/s. Luv Kush Security Services (for release of security deposit) was received in his office after being marked to him by the accused Mangal Singh Arya. Since certain formalities were to be completed, letter Ex. PW5/A1 was sent through speed post. However, the same was received back undelivered. After completion of all the formalities, the security was released. In the cross examination, DW1 admitted that after completion of all formalities, the accused had the power to release the security deposit.
DW2 Hari Ram who was posted as Peon with the accused stated that on 03.02.2009, at about 02.30 p.m., accused was having lunch. In the meanwhile, two people came to the office and enquired about Sh. MS Arya. DW2 along with these two persons entered into the room of accused. They both started talking with him regarding theft of mobile etc. After sometime, DW2 came out while these two persons were present in that room. DW2 stated that after finishing the lunch, accused came out to get his hands washed and in the meanwhile one person out of the two persons who were in the chamber of accused, came out and gave signal on which two three other persons entered the room. Accused was caught hold and made to sit on the sofa and enquired about the money. Accused stated that he had no concern with the money and also stated that no transaction had taken place. DW2 stated that no money transaction took place in his presence and he remained there till the finishing of the lunch by accused MS Arya. CBI Vs. Mangal Singh Arya CC No. 21/11 Page 19 of 4 ARGUMENTS 6.0 Sh. Yogesh Verma, Ld. Counsel for the accused has argued vehemently that prosecution has miserably failed to prove its case against the accused. Ld. Counsel has submitted that MTNL awarded the contract for security to M/s. Luv Kush Security services for the period 2007 to 2009 and this contract finished on 10.01.2009. The complainant moved an application for refund of security on 02.02.2009. In the complaint, it was alleged that accused demanded a bribe of Rs. 50,000/ for release of the security amount. Ld. Counsel for the accused pointed out that in the said application, the accused has shown his address as 653, Sanjay Enclave, GT Road Karnal, Delhi and represented himself to be the Manager of the Security Service. Ld. Counsel pointed out that complainant was a Government Servant and he had no connection whatsoever with M/s. Luv Kush Security Services. The complainant filed a false and frivolous complaint against the accused at the behest of one Sh. Om Prakash Basta. Sh. Om Prakash Basta, an employee of MTNL, is admittedly, the brother in law of the complainant. Ld. Counsel for the accused submitted that Sh. Om Prakash Basta was a Union Leader and he had been nursing some grudge against the accused and, therefore, the present complaint was filed. Ld. Counsel for the accused has also argued at length that complainant had also a grudge against the accused as the security contract of Luv Kush Security services was not extended and the security contract was given to M/s. Reach CBI Vs. Mangal Singh Arya CC No. 21/11 Page 20 of 4 Security. Ld. Counsel submitted that this had annoyed the accused and he was making every effort to harass the accused.
Sh. Yogesh Verma, Ld. Counsel further argued that first and foremost ingredient to establish the case u/S.7 of the PC Act is the demand of bribe, and prosecution has miserably failed to prove the same. The complainant himself in his testimony has stated that accused had demanded the bribe from Col. Anup Singh. Col. Anup Singh was not examined by the prosecution, therefore, the very basis of the case of the prosecution falls down. Ld. Counsel assailed the testimony of the complainant on several grounds. It was argued that the complainant failed to depose about the denomination of the currency notes. Ld. Defence Counsel has also assailed the case of the prosecution on the ground that in the handing over memo Ex.PW1/B, it has been written that it was informed by the complainant that the accused will neither entertain nor would accept the bribe amount in front of any stranger whereas PW9 Inspr. Pramod Kumar, TLO said that this fact was told by the complainant in MTNL office only and PW1 Pranav Jha stated that this fact was told by the complainant while they were going to the MTNL Office. Ld. Counsel for the accused submitted that this fact shows that Handing over Memo is a forged and fabricated document. It has further been submitted that the complainant did not say in his examination that he told the IO that shadow witness be not sent with him. Sh. Yogesh Verma, Ld. Counsel for the accused further argued that the transcription as proved by the prosecution is in contradiction to the testimony of the prosecution CBI Vs. Mangal Singh Arya CC No. 21/11 Page 21 of 4 witnesses. In the transcript of the time of transaction, there is no mention of demand and acceptance of bribe at all.
Ld. Counsel for the accused has also submitted that another essential ingredient of this case i.e. recovery of bribe amount has also not been proved by the prosecution beyond reasonable doubt. Ld. Counsel for the accused pointed out several contradictions regarding recovery effected by the CBI. The complainant stated that money was recovered by the CBI officials from the files/books lying on the table. It has been submitted by the Ld. Counsel for the accused that the complainant was declared hostile and in the crossexamination by Ld. PP, complainant merely admitted the suggestion that GC notes were recovered from the books in his presence. Ld. Counsel for the accused invited the attention of this court to another anomaly regarding the presence of Vinay Kumar at the time of pretrap and trap proceedings. The complainant in his evidence has admitted that he had left the CBI office with Vinay Kumar. IO has also admitted the presence of Vinay Kumar but Vinay Kumar has not been made witness for the reasons best known to the CBI. Ld. Counsel further argued that it amounts to withholding the material evidence by the prosecution. Ld. Counsel also pointed out the contradiction in the testimony of complainant and PW3 Ramesh Chand regarding recovery of the GC notes. The attention of the court was also invited towards the contradiction regarding the place from where the alleged recovery was effected. Ld. Counsel has also assailed the recording of the conversation and preparation of the transcription. CBI Vs. Mangal Singh Arya CC No. 21/11 Page 22 of 4
Sh. Yogesh Verma, Ld. Counsel for the accused also argued that there is also contradiction regarding the place from where the accused was arrested. As per the version of PW1 Pranav Jha, accused met outside the room whereas the case of the CBI is that accused was arrested from his room itself. Ld. Counsel has submitted that the sanction for prosecution is also defective and invalid, having been granted mechanically. Sh. Yogesh Verma, Ld. Counsel for the accused would argue that PW3 Ramesh Chand in his testimony admitted that he did not know how to read and write English, however his signatures are appearing on the memos written in English, and therefore, it is apparent that witnesses put their signatures at the instance of CBI. Ld. Counsel submitted that call detail records have also not been proved in accordance with the law and therefore cannot be believed. Sh. Yogesh Verma, Ld. Counsel would further argue that the testimony of the CBI officials and the expert witnesses are full of contradictions and are liable to be rejected. Ld. Counsel submitted that CBI has failed to prove the demand and in absence of demand, the recovery has no relevance. In support of his contention, Ld. Counsel has cited the following judgments :
1. Banarsi Dass Vs. State of Haryana, AIR 2010 SC 1589
2. State of Punjab Vs. Sohan Singh, AIR 2009 SC 1887
3. M.K. Harshan Vs. State of Kerla, 121 of 1989 dated 08.03.1995
4. Ayyasami Vs. State of Tamilnadu, AIR 1992 SC 644
5. State of Rajasthan Vs. Mohan Lal, 2009 (2) RCR Crl.
6. Rakesh Kapoor Vs. State of Himachal Pradesh, Cr. Appeal no. 1839 of 2012
7. State of Madhya Pradesh Vs. J.B. Singh, AIR 2000 SC 3562 CBI Vs. Mangal Singh Arya CC No. 21/11 Page 23 of 4
8. V. Venkata Subbarao Vs. State represented by Inspr. of Police A.P., 2007 RC 31 (SC)
9. Roshan Lal Saini & An. Vs. CBI, 2011(1) JCC 102
10. Panalal Damodar Rathi Vs. State of Maharashtra, 1979 (4) SCC 526
11. LK Jain Vs. State through CBI, 2005(3) JCC 1677
12. Bhagwan Singh Vs. State of NCT of Delhi, 2010 (4) LRC 73 (Del)
13. T. Subramanian Vs. The State of T.N., 2006 Cri.L.J. 804
14. Khilli Ram Vs. State of Rajasthan, AIR 1985 SC 79
15. Dwijadas Banerjeet and etc. Vs. The State of W.B., 2005 Cri.L.J. 3151
16. Eknath Ganpat Aher & Ors. Vs. State of Maharasthra & Ors. 2010 (3) RCR Crl.
17. Sat Paul Vs. Delhi Administration, AIR 1976 SC 294
18. Om Prakash Vs. State of Haryana, AIR 2006 SC 894
19. Braham Singh Bhati Vs. State, Crl.A no.413/2010 & Crl.M.(Bail) No. 518/2010
20. Pran Nath Koul & Ors. Vs. State, 2008(1) Crimes 211 (J&K)
21. Om Prakash Vs. State & Ors., 2009 (2) JCC 1210
22. Bishambhar Dayal Srivastava Vs. State of U.P., Crimes (3) 1994 (1)
23. KC Singh Vs. CBI, Cri Appeal No. 976 of 2010
24. Devesh Kumar Vs. State, 2010(1) JCC 762
25. Nilesh Dinkar Paradkar Vs. State of Maharashtra, III (2011) SLT 35
26. State through CBI Vs. Ravinder Singh, Cri. Revision No. 45 of 1993
27. Pyare Lal Vs. State, 2008(4) Crimes 137 (Del) 6.1 Sh. DK Singh, Ld. PP for CBI has submitted that the complainant has made consistent and corroborative statement on oath. He had made a positive statement regarding the demand and acceptance of CBI Vs. Mangal Singh Arya CC No. 21/11 Page 24 of 4 bribe. The recovery has also been proved by PW2 complainant and PW3 independent witness Ramesh Chand. The chemical analysis report has also proved the presence of phenolphthalein powder on the hands of the accused.
The fact that currency notes were smeared with phenolphthalein powder has duly been proved by PW1 Pranav Jha, PW2 RK Choudhary - complainant, PW3 Ramesh Chand, PW9 Inspr. Pramod Kumar TLO and PW10 Inspr. Rohit Kumar. Ld. PP has submitted that testimony of independent witness cannot be rejected only because he has joined the raid proceedings only once earlier. In support of his contention, Ld. PP has cited O.P Chhabra Vs. State 2011 (1) CRJ 600, Maha Singh Vs. State (Delhi Administration) (1976) 1 SCC 644, Gyan Singh Vs. State of Punjab 1974 (4) SCC 305, State of UP Vs. Zakaullah AIR 1988 SC 1474 and Syed Ahmed Vs. State of Karnataka (2012) 8 SCC 527.
FINDINGS 7.0 The accused has been charged under Section 7 and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act (in short "PC Act"), 1988. Section 7 PC Act is reproduced as below :
"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 CBI Vs. Mangal Singh Arya CC No. 21/11 Page 25 of 4 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."
The necessary ingredients of Section 7 PC Act, 1988 are as follows :
(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.
The prosecution is required to prove the above ingredients by way of acceptable and clinching evidence.
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 26 of 4
Similarly the necessary ingredients of Section 13(1)(d) are as follows :
1) accused was a public servant;
2) accused used corrupt or illegal means or otherwise abused his position; and,
3) accused obtained for himself or for any other person any valuable thing or pecuniary advantage.
It is pertinent to mention here that Sec. 20 of the PC Act, 1988 provides for presumption in a case where public servant accepts gratification and he / she is tried for an offence punishable u/S 7 or 11 or 13(1)(a) & (b) of PC Act, 1988. The perusal of Section 20 would indicate that if an accused person has accepted or agreed to accept any gratification or any valuable thing, it shall be presumed, unless contrary is proved, that the public servant has accepted or agreed to accept the gratification as a motive or reward as mentioned in Sec. 20. Thus, if it is proved that an accused has accepted any gratification, a legal presumption u/S 20 can be raised regarding motive or reward.
7.1 The accused has challenged the case of the prosecution primarily on the following grounds :
1. PW2 RK Choudhary is totally unreliable witness. He had no concern with M/s. Luv Kush Security Service.CBI Vs. Mangal Singh Arya CC No. 21/11 Page 27 of 4
2. RK Choudhary was a Government employee and was working as a liason for certain security agencies.
3. PW2 RK Choudhary filed a false and frivolous complaint as M/s.
Luv Kush Security Services was annoyed for not having extended the security contract and the same was awarded to M/s. Reach Security.
4. Prosecution has not led any evidence regarding the demand of bribe. The complainant has not made any specific statement regarding this. In the recorded conversation between accused and complainant at the time of alleged transaction there is no mention about the demand or acceptance of bribe. There are several contradictions in regard to the recovery of the bribe. The witnesses have given different versions about the recovery which has made it totally reliable.
5. Electronic evidence has not been proved in accordance with the law. The investigating agency has failed to prove the same in accordance with the mandatory provisions of Indian Evidence Act and therefore the reliance cannot be placed upon the same.
6. The independent witnesses are also not reliable and therefore liable to be disbelieved.
7. Defence has also assailed the case of the prosecution on the ground that sanction Ex. PW4/A is invalid and on the basis of this sanction, no conviction can be recorded against the accused. CBI Vs. Mangal Singh Arya CC No. 21/11 Page 28 of 4 7.2 Defence has argued that the statement of the complainant is liable to be rejected as the complainant had a grouse against the delinquent public servant. It has been argued that the security contract of M/s. Luv Kush Security was not extended and the same was given to M/s. Reach Security. This fact of contract having not been extended annoyed the accused. The accused brought material on record to indicate that complainant had been making complaint against M/s. Reach Security and he had also been seeking informations regarding this through RTI. However, the question is that on this ground alone can the statement of the complainant be rejected outrightly. It is an admitted case that accused was not the final authority to approve or reject the security contract. The decision of the award of security contract used to be done at the higher level. If the statement of the complainant in the bribe case is rejected merely on the ground that he had a grouse against the accused then, no bribe giver can get away from such stigma in any graft case. In all such cases, the complainant would have been aggrieved by the conduct of the accused. The very fact that complainant lodged a complaint is reflected of his grievances. The only rule of caution is that in such like cases evidence of the complainant is required to be scrutinized carefully. However, the same cannot be rejected outrightly at the thresh hold. It has repeatedly been held that such a pedantic approach rejecting the evidence of a complainant simply on the premise that he was aggrieved against the bribe taker will only held corrupt officials being insulated from legal consequences. Reference can be made to State of UP CBI Vs. Mangal Singh Arya CC No. 21/11 Page 29 of 4 Vs. Zakaullah, AIR 1998 SC 1474. In B. Hanumant Rao Vs. State of AP AIR 1992 SC 1201, an Excise Inspector was convicted by Ld. Special Judge for taking bribe. The conviction was upheld by the Hon'ble High Court. In the Supreme Court, Ld. Defence counsel laid great stress on the fact that the complainant was inimical and had an axe to grind the petitioner in as much as he was instrumental in getting the petition transferred from Godawari Khani vide order dated 16.05.1986 and vide order dated 20.05.1986 in the petition filed by the petitioner. The Apex court inter alia held that the above circumstances had been considered by the Hon'ble High Court and agreed with the High Court that when it is accepted that the accused demanded and accepted illegal gratification of Rs. 50,000/ on 05.07.80, then such circumstances cannot improbablise the demand and acceptance. It was further inter alia held that once the amount of Rs. 50,000/ is found in possession of the accused, the burden shifts on him to explain the circumstances to prove his innocence.
7.3 The defence has also assailed the testimony of the complainant on the ground that there is no independent corroboration to his testimony. It has repeatedly been held in the catena of the judgments that if a witness is otherwise reliable and independent, there is no rule of law that corroboration is essential. It is also a settled proposition that a bribe giver may not be stigmatised as an accomplice in the strict sense of terms particeps criminis. CBI Vs. Mangal Singh Arya CC No. 21/11 Page 30 of 4
In regard to the enmity between the accused and the complainant, Hon'ble Supreme Court recently in Syed Ahmed Vs. State of Karnataka (2012) SCC 527 did not give any weight to the arguments of revenge raised by the accused. It was inter alia held that the essentials to prove the offence u/S.7 PC Act, 1988 are
1. that person demanding the gratification was public servant ;
2. Demand for gratification ; and
3. Acceptance of gratification by the accused.
Regarding uncorroborated testimony of the complainant, the Apex court recently in Criminal Appeal No. 870 of 2012 Mukut Bihari & Ant. Vs. State of Rajasthan , took into account number of judgments and finally inter alia held as under :
"9. The case of the appellants has no merit as the case is squarely covered by the judgment of this Court in C.M. Sharma Vs. State of A.P. TH. I.P., AIR 2011 SC 608, wherein a similar issue had been raised that the complainant alongwith the shadow witness went to the office of the accused but the accused asked the shadow witness to go out of the chamber. Shadow witness left the chamber. However, the complainant brought the shadow witness in the chamber and explained to the accused that he was his financer. Despite that the accused again asked the shadow witness to leave the chamber and thus, he went out. The accused demanded the money and the complainant paid over the tainted money to him, which he received from his right hand and kept in right side pocket of the trouser. A signal was given, whereupon he was trapped by the team which CBI Vs. Mangal Singh Arya CC No. 21/11 Page 31 of 4 apprehended the accused and conducted sodium carbonate test on the fingers of the right hand and right trouser pocket of the accused, which turned pink. The tainted notes were lying on the floor of the office, which were recorded.
10. This Court, after considering various judgments of this Court including Panalal Damodar Rathi (supra) and Smt. Meena Balwant Hemke (supra) held that acceptance of the submission of the accused that the complainant's version required corroboration in all circumstances, in abstract would encourage the bribe taker to receive illegal gratification in privacy and then insist for corroboration in case of the prosecution. Law cannot countenance such situation. Thus, it is not necessary that the evidence of a reliable witness is necessary to be corroborated by another witness, as such evidence stands corroborated from the other material on record. The court further distinguished the case of Panalal Danodar Rathi (supra) on the ground that in that case the Panch witness had not supported the prosecution case and therefore, the benefit of doubt was given to the accused. In Meena Balwat Hemke (supra) as the evidence was contradictory, the corroboration was found necessary."
7.4 The defence has challenged the testimony of the complainant on several counts and has urged the court not to believe it on the ground that he had no status to file the complaint on behalf of M/s. Luv Kush Security and he was nursing a grudge against the complainant. I consider that this argument of the defence cannot be accepted. It is pertinent to mention here that here accused was on trial and not the complainant. The defence has tried to put the complainant on trial. I am afraid that this attempt of the accused cannot be allowed to succeed. In this regard, the argument of the defence CBI Vs. Mangal Singh Arya CC No. 21/11 Page 32 of 4 also suffers from self contradictions. On one point the accused took a plea that complainant had no role to play and had no status in M/s. Luv Kush and on the other hand, it was pleaded that the false complaint was filed as the contract was awarded to M/s. Reach Security Services in place of M/s. Luv Kush Security. It is correct that complainant may be unauthorizedly indulging in the private business, despite being a government servant. But on that count, the statement of the complainant cannot be rejected as such. 7.5 The defence has assailed the testimony of PW1 Pranav Jha on the ground that he is a stock witness. Ld. Counsel for the accused submitted that PW1 Pranav Jha has admitted in the crossexamination that he is also a witness for CBI in one another case. Ld. Counsel submitted that in view of this admission, testimony of PW1 cannot be admitted as he can easily be tutored to depose anything at the behest of the police. I consider that merely because PW1 has appeared as a CBI witness in another case, would not render him a nonindependent witness. In Gyan Singh Vs. State of Punjab (1974) SCC 305, it has been inter alia held as under :
"... police officials cannot be discredited in a trap case merely because they are police officials, nor can other witnesses be rejected because on some other occasion they have been witnesses for the prosecution in the past. Basically, the court has to view the evidence in the light of the probabilities and the intrinsic credibility of those who testify. The serious hurdle in the way of the appellant here is that the court which has seen the witnesses, and the appellate court which has reviewed the CBI Vs. Mangal Singh Arya CC No. 21/11 Page 33 of 4 matter over again, have found no good reason to discard the prosecution version."
Regarding independent witnesses, the Hon'ble Supreme Court in State of UP Vs. Zakaullah AIR 1988 SC 1474, inter alia held as under :
"10. The necessity for "independent witness" in cases involving police raid or police search is incorporated in the statute not for the purpose of helping the indicted person to bypass the evidence of those panch witnesses who have had some acquaintance with the police or officers conducting the search at some time or the other. Acquaintance with the police by itself would not destroy a man's independent outlook. In a society where police involvement is a regular phenomenon many people would get acquainted with the police. But as long as they are not dependent on the police for their living or liberty or for any other matter, it cannot be said that those are not independent persons. If the police in order to carry out official duties, have sought the help of any other person he would not forfeit his independent character by giving help to police action. The requirement to have independent witness to corroborate the evidence of the police is to be viewed from a realistic angle. Every citizen of India must be presumed to be an independent person until it is proved that he was a dependent of the police or other officials for any purpose whatsoever. Hazari Lal Vs. Delhi Administration, (1980) 2 SCR 1033 (AIR 1980 SC 873)."
7.6 Ld. Counsel has also assailed the testimony of PW9 Inspr. Pramod Kumar on the ground that he being Trap Laying Officer is an interested witness and would always ensure to see success of his case. I consider that there is no force in this argument also. Inspr. Pramod Kumar has no interest against the respondent. Of course, he would be interested in CBI Vs. Mangal Singh Arya CC No. 21/11 Page 34 of 4 the success of his trap but it would not mean that he had any animosity against the accused. The ground on which the testimony of Inspr. Pramod Kumar has been assailed are flippant grounds and does not merit any consideration.
7.7 The defence has also challenged the case of the prosecution on the ground that there is no evidence regarding the demand of bribe. This argument of the defence is also misconceived and misplaced. I consider that there is sufficient evidence to prove the demand on behalf of the accused. In the complaint, Ex.PW2/A itself, the complainant has specifically stated that he met accused on 02.02.2009 and on that day , accused demanded Rs. 50,000/ and also threatened that if bribe is not paid, the security would not be released. Thereafter, during the telephonic conversation as indicated in the verification memo, Ex.PW1/A and the transcription Ex.PW2/B, there is a specific demand of bribe on the part of the accused. The defence has challenged that this part of the evidence cannot be read as the same has not been proved in accordance with the law. The defence has relied upon the judgment of Nilesh Dinkar Paradkar Vs. State of Maharashtra, III (2011) SLT 35. In Nilesh Dinkar Paradkar's case, there was a question regarding the voice identification of the accused persons. In this case, the telephonic conversation amongst the accused persons were intercepted and recorded. This conversation revealed a conspiracy to spread a terror in Dawood group CBI Vs. Mangal Singh Arya CC No. 21/11 Page 35 of 4 in Mumbai. The trial court as well as the High Court discarded the voice of accused No.1 and 2 and the Apex Court inter alia held that the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than the 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. The Apex Court reiterated the several judgments wherein the importance of the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification was emphasized. Reference was made to Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra & Ors., (1976) 2 SCC 17 and Ram Singh & Ors. Vs. Col. Ram Singh, 1985 (suppl.) SCC 611. There cannot be any dispute with the settled proposition laid down by the Apex court and this court is bound to follow the law in its letter and spirit. However, every case has to be taken in view of its peculiar facts and circumstances. The judgments cited by the Ld. Counsel for the accused are respectfully distinguished on the facts and circumstances of this case. 7.8 In the present case, prosecution has successfully proved the transcription cum voice identification memo, Ex.PW1/F by way of consistent and corroborative statement. The complainant has also duly CBI Vs. Mangal Singh Arya CC No. 21/11 Page 36 of 4 identified his voice and the voice of the accused. The transcriptions have also been proved in accordance with law. The court also made a specific observation that the quality of voice is good and the conversation was quite audible. The accused did not raise any dispute about his voice, rather, the complainant identified the voice of accused. In the transcription, Ex.PW2/B, the demand being made on behalf of accused is quite clear. The CFSL report, Ex.PW12/A has also been duly proved. In the report, it has been specifically stated that the examination of the CD did not reveal any pause, discontinuity of speed etc. nor the same was detected in the recorded conversation and the same might not have been tampered. It is also pertinent to mention here that the court is conscious of the fact that substantive evidence is only the evidence recorded by the court. The taperecorded conversation is only a corroborative piece of evidence. The complainant in his testimony has specifically made a statement regarding the demand of bribe. The tape recorded conversation is merely a corroborative piece of evidence. I do not see any reason to reject this piece of evidence.
In respect of the demand, the Hon'ble High Court in O.P Chhabra Vs. State, 2011 (1) CRJ 600, inter alia held that a perusal of Section 7 & 13 of PC Act, 1988 makes it clear that Sections do not talk about demand of bribe. They only talk about acceptance of bribe. There can be no acceptance unless there is demand that is why, the courts have always considered demand and acceptance together. It was further inter alia held CBI Vs. Mangal Singh Arya CC No. 21/11 Page 37 of 4 that there is no such requirement of law that this demand and acceptance of bribe has to be at the same time or demand must be made by spoken words at the time of trap laid by CBI or any investigating agency. Ld. Counsel for the accused has pleaded that in the recorded conversation of the time of trap there is no indication of demand of bribe by the accused. Since there is earlier demand of bribe, it is not necessary that at the time of trap also, prosecution is required to prove the demand on behalf of accused. In OP Chhabra's case (supra), it was further inter alia held that laying trap is in furtherance of investigation and trap is laid only when demand is already there. If no demand for bribe has been made, no trap can be laid. It is also pertinent to mention here that it has also been repeatedly held that no person who approaches CBI making complaint against a corrupt official about demand of bribe, can be branded as accomplice. Reference can be made to State Vs. PK Jain, 2007 Cri.L.J. 4137. In view of the discussion made herein above and material on record, I consider that prosecution has successfully proved that there was demand on behalf of the accused. 7.9 Ld. Defence counsel also assailed the case of the prosecution on the ground that call details record of the telephone of the accused and the complainant has not been proved in accordance with law. I have gone through the testimony of PW7 Capt. Anuj Bhatia who has proved the call details record. Similarly, PW11 Rakesh Soni also produced the call details record of Mobile No.9868135100 of the accused. It is an admitted case that CBI Vs. Mangal Singh Arya CC No. 21/11 Page 38 of 4 no certificate u/S.65B of The Indian Evidence Act is produced. However, at the same time, nothing has come in the evidence which can suggest that the call details record produced by the prosecution is forged and fabricated. It is also pertinent to mention here that in his statement u/S.313 Cr.P.C. accused has not denied the factum of the telephone calls being made. He merely submitted that the same has not been proved in accordance with law. I consider that there is no force in this argument of the defence. Even otherwise, as I have discussed above, there is substantive evidence on the record so as to prove the demand on behalf of the accused. The complainant in his testimony has specifically stated that he went to the room of accused Mangal Singh Arya and wished him. The accused asked for money and he i.e. complainant handed over the money to him. In the cross examination, the complainant reiterated that money was demanded by gesture by the accused and only thereafter, he had handed over the same to accused. It has also been proved on record that complainant informed CBI officials that accused had demanded bribe. The handwash of the accused were taken and chemical examination duly proved the presence of phenolphthalein powder. In the trap cases, the currency notes are smeared with phenolphthalein powder to ensure that accused had infact received the bribe and not that currency notes were just thrust in the pocket of an unwilling officer. The chemical report reaffirms the conscientious suggestion that prosecution was proceeding against a real bribe taker and that a public servant is not harassed unnecessarily.
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 39 of 4 7.10 The defence has argued at length and pointed out the contradictions in respect of the alleged recovery of bribe money. Sh. Yogesh Verma, Ld. Counsel during arguments invited the attention of the court that as per the case of the prosecution recovery was effected by PW3 Ramesh Chand. However, PW3 Ramesh Chand did not say so and complainant stated that recovery was effected by CBI officials. There cannot be any dispute to the fact that there are certain contradictions in this regard. However, it has repeatedly been held that minor contradictions which do not go to the root of the case, cannot be held fatal for the case of the prosecution. It is also pertinent to mention here that in this case Hon'ble Supreme Court relying upon and Abdul Nawaz Vs. State of Bengal 2012 SCC 581 held that the discrepancy would be minor if it did not affect the substratum of the prosecution case and impact on the core issue. In such an event, the minor discrepancy could be ignored. The prosecution by way of its witnesses has consistently proved the recovery of bribe money from the accused. There are certain contradictions as to the place that whether it was effected from the files or the books or from drawer of the table. I consider that these contradictions does not go to the substratum of the case of the prosecution. PW2 RK Choudhary, complainant in his testimony specifically stated that money was recovered by CBI officials from the files / books lying on the table. Complainant also proved the recovery memo Ex.PW1/C. PW9 Inspr. Pramod Kumar in his testimony sated that when accused was challenged, he CBI Vs. Mangal Singh Arya CC No. 21/11 Page 40 of 4 got panic and started sweating. In the trap cases, the conduct of the accused is relevant u/S. 8 of the Evidence Act. The complainant in his testimony stated that the accused had demanded the bribe by gesture and it has also come on record that on being challenged, the accused got panic and started sweating. Reference can be made to Maha Singh Vs. State (Delhi Administration) (1976) 1 SCC 644. Complainant specifically denied the suggestion that money was planted while accused had gone to wash his hands. Similarly, PW1 Pranav Jha also made a consistent and corroborative statement on oath that PW3 Ramesh Chand recovered the money from the drawer of the table on being informed by the complainant. PW3 Ramesh Chand in this testimony also stated that accused was present in the room and after he was caught hold by the CBI officials, GM was called and hand wash of the accused was taken. PW3 stated that money was found in book "Jeevan Jeene Ki Kala" lying under the drawer. PW3 proved the site plan Ex.PW1/D. The testimony of PW3 has been urged to be discarded on the ground that this witness admitted in the cross examination that he cannot read and write English. Ld. Counsel stated that when this witness did not know English language at all, how could he sign the papers which are written in English. It is not necessary that a witness must know the language of the memo or the language in which the memo has been written. Normally, such memos are read over to the witnesses before it is being signed.
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 41 of 4
PW9 Inspr. Pramod Kumar TLO also stated that accused told that he had kept the money in the drawer and Ramesh Kumar recovered the same. It also came in the testimony of PW10 Rohit Kumar that the denominations of currency notes recovered were compared with the handing over memo Ex.PW1/B and were found to be the same. PW10 Inspr. Rohit Kumar also made a corroborative statement that PW3 Ramesh Chand was asked to recover the money lying in the book from the shelf. The chemical examination report has also corroborated the version of the prosecution regarding acceptance and recovery of the bribe money. 7.11 The defence has also tried to demolish the case of the prosecution in regard to the presence of Vinay Kumar. PW2 RK Choudhary in his evidence has admitted that Vinay Kumar met him when he went to CBI office. However, it is a matter of record that Vinay Kumar has not been made witness anywhere by the IO for the reasons best known to him. This is apparently a defect in the investigation. However, the question is that for the defect / default in the investigation, whether the premium can be given to the accused. This question has come up for discussion before the superior courts and it has been held in the catena of cases that illegal investigation do not per se result in the rejection of the case of the prosecution. Reference can be made to HN Rishbud Vs. State of Delhi, AIR 1955 SC 196.
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 42 of 4
In Leela Ram Vs. State of Haryana, AIR 1999 SC 3717, in reference to lapse in investigation, it was held as under:
"It is now a well settled principle that any irregularity or even an illegality during investigation ought not to be treated as a ground to reject the prosecution case and we need not dilate on the issue excepting referring a decision of this Court [vide State of Rajasthan V. Kishore, AIR 1996 SC 3035]."
Reference can also be made to Kishore Chand V. State of HP, 1990 CrLJ 2290 (SC), State of Rajasthan Vs. Kishore, AIR 1996 SC 3035, Ram Bihari Yadav Vs. State of Bihar & Ors 1998 (4) SCC 517, Amar Singh Vs. Balwinder Singh & Ors. 2003 (2) SCC 518 and Ram Bali Vs State of UP, AIR 2004 SC 2329.
In the present case, there is nothing to suggest that there is any miscarriage of justice or the accused has been prejudiced in any manner. I consider that for this lapse, otherwise cogent and creditworthy case of the prosecution cannot be discarded.
7.12 The defence has also argued at length regarding the contradictions in the case of prosecution regarding the trap proceedings. It has been submitted that as per handing over memo Ex.PW1/B, the complainant had told at that time that no shadow witness should accompany him, whereas PW9 Insp. Pramod Kumar stated that complainant told this fact to him in the MTNL office only, and PW1 Pranav Jha deposed that CBI Vs. Mangal Singh Arya CC No. 21/11 Page 43 of 4 complainant told this fact of shadow witness being not sent with him while they were going to MTNL office. The defence argued that this evidence indicates that the handing over memo was not prepared before the raid. I consider that again this contradiction does not go to the root of the case. This is only a contradiction which might have gained importance, had there not been any cogent and consistent statement of the prosecution witness regarding the demand and acceptance of bribe. It has repeatedly been held that in case u/S.7 of PC Act, the heart and soul of the matter is the evidence regarding the demand and acceptance of bribe. If there is specific evidence regarding these things, the contradiction regarding other ancillary circumstances can be ignored. PW2 RK Choudhary has made a specific statement on oath that a P.A. and Peon was attached to the accused and PA room was just attached to the room of the accused. Complainant also stated that when he entered the room of the accused, it was lunch time. However, complaint did not remember whether accused was taking lunch or not. PW1 Pranav Jha proved on record that handwash of the accused and book colour wash was taken. The colour wash was also duly proved in the court. The evidence regarding the hand wash and chemical examination report of presence of phenolphthalein powder is very relevant. It is pertinent to mention here that PW8 VB Ramteke in his cross examination voluntarily stated that pink colour of phenolphthalein powder in sodium carbonate solution has a tendency to fade away with time. The time depends on the volume of phenolphthalein powder and sodium carbonate. The colour fades CBI Vs. Mangal Singh Arya CC No. 21/11 Page 44 of 4 away due to the change in properties of chemicals.
In Bhupinder Singh Sikka Vs. CBI, Crl. A. No. 124/2001 decided on 25.03.2011 by Hon'ble Ms. Justice Mukta Gupta, the conviction was recorded despite the fact that the complainant and the shadow witness had turned hostile. The Hon'ble High Court took into account the fact that after the recovery of money, the hand wash of the appellant was taken and both his hand wash gave pink colour and as per the testimony of PW6, the exhibits gave positive test for phenolphthalein powder. The factum of acceptance of money was taken to be proved by circumstantial evidence. 7.13 The defence has argued at length regarding the fact that accused arrested from outside his room and on that time, he had already washed his hands. However, this plea is also liable to be rejected in view of the specific statement of PW1 Pranav Jha who stated that CBI officials caught hold of the accused from both hands before he could wash his hands. PW1 stated that accused had come outside to wash his hands when he was caught. PW9 Insp. Pramod Kumar also stated that when raiding party entered the room of the accused, accused was sitting on the chair and when the accused was asked that whether he had received any bribe from the complainant accused could not speak anything and became panic and started sweating. Thereafter, GM was called and told that accused has been caught red handed while accepting the bribe by the CBI. Thereafter, wash of the right hand of accused CBI Vs. Mangal Singh Arya CC No. 21/11 Page 45 of 4 was taken in fresh sodium bicarbonate solution and solution turned slightly pink.
7.14 The case of the prosecution has also been sought to be demolished on the ground that sanction has not been accorded in accordance with law. In respect of this contention, Ld. Counsel has relied upon the testimony of PW4 Kuldeep Singh who stated that sanction Ex.PW4/A is reproduction of documents. It was also pointed out that in his cross examination, witness has admitted that a draft proforma of sanction was received by him from vigilance department. I consider that merely on this base, it cannot be held that PW4 Kuldeep Singh had merely signed on the draft. It cannot be believed unless and until proved otherwise that sanction was granted on draft. In Prakash Singh Badal & Anr. Vs. State of Punjab and Ors., (2007) 1 SCC 1, it was inter alia held that the effect of Sections 19(3) and (4) of the Act is of considerable significance. In Section 19(3) the stress is on "failure of justice" and that too "in the opinion of the court". In Section 19(4), the stress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is not considered fatal unless, it has resulted in failure of justice or has been occasioned thereby. It was further inter alia held that Section 19(1) is a matter of procedure and does not go to the root of the jurisdiction. In CBI Vs. Mangal Singh Arya CC No. 21/11 Page 46 of 4 regard to the mind, the Apex court also held that the sanctioning authority is not required to separately specify each of the offences against the accused public servants. This is required to be done at the stage of framing of charge. The law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply its mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalized guidelines in that regard. It is also pertinent to mention here that there is no plea of the accused that there has been any failure of justice or miscarriage of justice on this account.
CONCLUSION 8.0 The prosecution witnesses have made a consistent and corroborative statement on oath. The scientific evidence has also corroborated the version of the prosecution witnesses. The defence witnesses examined by the accused are his subordinates and they do not seem to be independent witnesses. Even otherwise, those are the witnesses only regarding the recovery. If these witnesses are put to the comparison with the prosecution witnesses regarding some facts, the story given by the prosecution witnesses seems to be reliable. I have also gone through the judgments cited by Ld. Defence counsel and have taken guidance as to the proposition of law. However, same are respectfully distinguished on the facts and circumstances of the case.
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 47 of 4 8.1 It is an admitted case that accused was public servant. He was posted as AGM, MTNL. The prosecution has duly proved on record by cogent and creditworthy evidence on record that there was demand and acceptance of bribe. In view of the prosecution evidence regarding the demand and acceptance of bribe and the provisions laid down u/S.7 of the PC Act, 1988, it has been proved that the accused has accepted the same. It is a fit case where presumption u/S.20 POC Act can be raised successfully. 8.2 In view of the discussions made herein above, the CBI has been able to establish on the basis of dependable evidence on record that accused Mangal Singh Arya had demanded and received bribe from the complainant and, therefore, accused Mangal Singh Arya held guilty of the offence u/S.7 of Prevention of Corruption Act, 1988 and u/s.13(1)(d) r/w S.13(2) of Prevention of Corruption Act, 1988 in RC No.7(A)/2009 and convicted accordingly.
Announced in Open Court (Dinesh Kumar Sharma )
on 20.12.2012 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 48 of 4
IN THE COURT OF SPECIAL JUDGE (PC ACT) 01, CBI,
SAKET COURTS, NEW DELHI
Presiding Officer : Dinesh Kumar Sharma, Special Judge (PC Act) CC No.21/11 Unique Case ID No. 02401R0276062009 C.B.I. Vs. MANGAL SINGH ARYA S/o. Late Sh. Jaghar Singh R/o. C30/2, Street No.1, Khajuri Khas, Delhi 110094.
RC No. : DAI2009A0007 u/Ss : u/S.7 & u/S.13(2) r/w S.13(1)(d) of PC, Act 1988 Judgment announced on : 20.12.2012 Date of order on sentence : 22.12.2012 ORDER ON SENTENCE Present : Sh. D.K. Singh, Ld. PP for CBI Convict in person with Sh. Yogesh Verma, Advocate Arguments on the point of sentence heard. CBI Vs. Mangal Singh Arya CC No. 21/11 Page 49 of 4 1.0 Sh. Mangal Singh Arya has been convicted for the offence u/S.7
& S.13(1)(d) r/w S.13(2) of PC Act, 1988 for having demanded and accepted illegal gratification from PW2 RK Choudhary.
2.0 Sh. Yogesh Verma, Ld. Counsel for the convict has submitted that convict is around 58 years of age. His wife Smt. Rekha Rani aged 57 years is suffering from various ailments including spinal disorder, and having undergone surgery last year requires constant attention. The convict has two children. The elder daughter is married and the younger son is pursuing MBA Course at Bangalore. Ld. Counsel submits that convict Mangal Singh Arya is the only person to look after his ailing wife. Besides this, he is also to look after his widowed sister, who also lives with him. Ld. Counsel has prayed for a lenient view.
2.1 Sh. D.K. Singh, Ld. PP for CBI has submitted that appropriate punishment may be awarded to the accused. Ld. PP submits that sentencing is the domain of court, however, the CBI would request for the maximum punishment.
3.0 The common man of this country is suffering the pain and heat caused on account of rising corruption in the society. The corruption either at the highest level or at the lowest level, ultimately affects the common man CBI Vs. Mangal Singh Arya CC No. 21/11 Page 50 of 4 of this country. The public servant represents the government in the eyes of the public and any incident of corruption on the part of the public servant shakes the confidence of the public in the system itself. The loss of confidence in the governance has many ill effects including slow growth rate, bad law and order and over all mismanagement in the society. The people, on account of corruption, start having a perception that some persons are above the law. The society looks upon the court in appropriate cases for a maximum punishment so as to have deterrent effect on the society at large. India as a country could have achieved much more had the incident of corruption would not have been so high. Therefore, the duty of the court in such cases is to award appropriate punishment taking into account the interest of the society as a whole. While dealing with a case of corruption, the Hon'ble Supreme Court in Surain Singh Vs. State of Punjab, 2009 II AD (SC) inter alia held as under :
"Day in and day out the gigantic problem of corruption in the public servants is on the increase. Large scale corruption retards the nation building activities and everyone has to suffer on that count. Corruption is corroding like cancerous lymph nodes, the vital veins of the body politics, social fabrics of efficiency in the public services and demoralizing the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of his post."
4.0 In view of the facts and circumstances, taking into account the circumstances of the convict, convict Mangal Singh Arya is sentenced to CBI Vs. Mangal Singh Arya CC No. 21/11 Page 51 of 4 RI for 3 years and fine of Rs.25,000/ in default SI for 6 months u/S.7 of PC Act, 1988 and RI for 3 years and fine of Rs.25,000/ in default SI for 6 months u/S.13(1)(d) r/w S.13(2) of PC Act, 1988.
Both the sentences shall run concurrently.
Benefit of section 428 Cr.P.C. be given to the convict. 5.0 A copy of judgment and order on sentence be given to the convict free of cost.
6.0 File be consigned to Record Room.
Announced in Open Court (Dinesh Kumar Sharma )
on 22.12.2012 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 52 of 4
CC No.21/11
22.12.2012
Present: Sh. DK Singh, Ld. PP for CBI.
Convict in person with Sh. Yogesh Verma, Advocate
Arguments on the point of sentence heard.
Vide separate order on sentence, convict Mangal Singh Arya is sentenced to RI for 3 years and fine of Rs.25,000/ in default SI for 6 months u/S.7 of PC Act, 1988 and RI for 3 years and fine of Rs.25,000/ in default SI for 6 months u/S.13(1)(d) r/w S.13(2) of PC Act, 1988.
All the sentences shall run concurrently.
Benefit of section 428 Cr.P.C. be given to the convict. A copy of judgment and order on sentence be given to the convict free of cost.
An application u/S 389 Cr.PC has been moved by the convict. Convict Mangal Singh Arya is granted bail on his furnishing a personal bond in the sum of Rs.20,000/ with one surety in the like amount till 21.01.2013.
Rs.50,000/ deposited as fine.
File be consigned to Record Room.
(Dinesh Kumar Sharma ) Spl. Judge (PC Act) : CBI01 Saket Courts : New Delhi.
CBI Vs. Mangal Singh Arya CC No. 21/11 Page 53 of 4