Delhi District Court
Cbi vs Harbir on 30 September, 2024
IN THE COURT OF SHRI ATUL KRISHNA AGRAWAL,
SPECIAL JUDGE, CBI-19 (PC ACT), RADC, NEW DELHI
CC No. 28/20
FIR No. RC-DAI-2019-A-0028
PS CBI/ACB, New Delhi
U/s 7 of PC Act, 1988 (as amended)
CBI ...... Prosecution
Versus
Harbir
S/o Sh. Sumwari
R/o 249/A, Ground Floor
Valmiki Mandir Wali Gali
Dasgara, Near Todarpur, Pusa Road
New Delhi-110049. ...... Accused
CBI No. : 12/20
CNR No. : DLCT11-000041-2020
Date of institution : 13.01.2020
Date of transfer of case to this court : 10.01.2020
Date of conclusion of arguments : 30.09.2024
Date of judgment : 30.09.2024
Final Order : Acquitted
Ld. PP for CBI:- Sh. Tajwinder Singh
Ld. Defence Counsel for accused :- Sh. Sandeep Sharma
JUDGMENT
CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 1 of 81 Table of contents Sl. Particulars Page No. No. 1 Introductory facts 2 2 Detailed prosecution case 3 3 Prosecution Evidence 12 4 List of Exhibited/ Marked Documents 32 5 Statement of accused u/S 313 Cr.PC 36 6 Final Arguments 40 7 Legal Position 47 8 Appreciation of Evidence 52 9 Decision 80 1. Introductory facts 1.1 The present case FIR was registered on the basis of
written complaint of one Sh. Sanjay, against accused Harbir, Sanitary Supervisor, SDMC, Kotla Mubarakpur, New Delhi, for the commission of offence punishable under Section 7 of Prevention of Corruption Act, 1988 (as amended) (hereinafter to be referred as the "PC Act"), on 07.08.2019, pursuant to the verification of complaint on date 06.08.2019, by CBI officials. After registration of FIR, a trap was set up by CBI on 07.08.2019 and the accused was caught red handed, having accepted the bribe amount (trap money) of Rs.10,000/- from complainant Sh. Sanjay. The accused was arrested. Further investigation, such as recording of statement of witnesses, obtaining of CFSL reports qua the seized exhibits and collection of documents was conducted. The accused was granted bail in the meanwhile. Sanction for prosecution u/S 19 of PC Act was also obtained CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 2 of 81 from the competent authority and ultimately, the CBI filed a charge-sheet against accused Harbir, before the court of Ld. District & Sessions Judge, Rouse Avenue, Delhi, on 10.01.2020. The same was assigned to Ld. Predecessor of this court vide order dated 10.01.2020 of Ld. District & Sessions Judge, Rouse Avenue. The accused was then summoned vide order dated 13.01.2020 and upon his appearance on 22.01.2020, he was supplied with the copies of the charge sheet alongwith the relied upon documents u/S 207 Cr.PC.
1.2 Charge was framed against the accused vide order dated 06.02.2020 by the Ld. Predecessor, for the offence punishable u/S 7 of PC Act. The accused pleaded not guilty to the charges and claimed trial. The matter was thereafter listed for prosecution evidence. After closure of prosecution evidence, statement of accused u/S 313 CrPC was recorded. Since the accused did not want to lead defence evidence, final arguments were heard from both sides and accordingly, now the present judgment is being passed.
2. Detailed Prosecution case 2.1 The case of the prosecution is that on 06.08.2019, the complainant Sh. Sanjay s/o Sh. Kanchi Ram, approached the office of CBI. He made a written complaint dated 06.08.2019 to CBI stating that he was doing the cleaning work at INA Market. Accused Harbir who was working as Sanitary Supervisor at SDMC, used to threaten him not to drop the garbage in dustbins installed at the market or else his (complainant's) rickshaw would CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 3 of 81 be taken away by accused. On 06.08.2019, in the morning, accused demanded a bribe of Rs.15,000/- from complainant for the said month and to continue making payment of bribe of Rs.10,000/- from next month onwards, for allowing the complainant to drop the garbage in the dustbins of SDMC. As per the complainant Sh. Sanjay, as he did not wanted to pay the bribe amount demanded by accused Harbir and desired legal action to be taken against the accused, so, he approached CBI.
2.2 It is further the case of prosecution that on receipt of a written complaint on 06.08.2019 from complainant Sh. Sanjay, a verification of his complaint was conducted by Inspector N. C. Nawal, CBI, ACB, in the presence of independent witness Sh. Parveen Kumar (who was posted as Administrative Officer, at the Oriental Insurance Company Ltd., Barakhamba Road, New Delhi-110001), to find out whether there was an actual demand of bribe on the part of accused Harbir or not. The purpose of his assembly, was also explained to the independent witness and the the handwritten complaint of complainant was read over and explained to him.
2.3 During the verification proceedings, the complainant was asked to make a call from his mobile phone no. 8178760841 to the mobile phone no. 9810276312 of the accused (then suspect officer). The first call made at about 4.30pm was not picked by the accused however, the subsequent call made by complainant at about 5.15pm was picked by the accused and the same was recorded in a memory card fitted in a DVR. In the said phone CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 4 of 81 call, which was also heard by Inspector N.C. Nawal and independent witness Sh. Parveen Kumar, as the mobile of complainant was on loud speaker mode, the accused asked the complainant to make payment of Rs.15,000/-. The accused also agreed to meet the complainant at INA Market, on 07.08.2019 between 2.15 pm to 2.30pm to receive the above amount. A memo was prepared of the verification proceedings. The DVR and CBI seal were handed over to Sh. Parveen Kumar, independent witness, for safe custody. Thereafter, since the demand of bribe, was verified , the instant case was registered u/S 7 of PC Act against accused and it was decided to lay a trap upon him.
2.4 It is further the case of prosecution that thereafter, Inspector H.V. Atri, CBI, ACB was deputed as Trap Laying Officer (TLO) and a trap team was constituted by him comprising of Inspector N.C. Nawal, Inspector Harnam Singh, Inspector Sunil Kumar, Inspector Ajay Kumar, Inspector Shyam Rai and Sub Inspector Satyavir. Besides them, two independent witnesses i.e. Sh.Parveen Kumar and one another independent witness namely Sh. Bharat Bhushan (who was then posted as Senior Assistant, Oriental Insurance Comapny, Laxmi Nagar, Delhi), were also joined in the trap proceedings alongwith complainant.
2.5 It is further the case of prosecution that the trap team assembled at CBI office on 07.08.2019, at about 12.15pm, with the object of laying a trap upon accused. The independent CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 5 of 81 witness Sh. Parveen also handed over the CBI brass seal and DVR to the TLO. The complainant produced Rs.10,000/- (Twenty GC notes in the denomination of Rs.500/- each) to be used as trap money. The currency numbers of those GC notes were noted down and made part of handing over memo. Thereafter, the said GC notes were treated with phenolphthalein powder. A demonstration was given by Inspector Shyam Rai to all the trap team members to show the reaction of phenolphthalein powder, in a solution of sodium carbonate and water that the solution turned pink.
2.6 It is further the case of prosecution that thereafter, personal search of complainant was conducted by Sh. Parveen Kumar, independent witness and the complainant was not allowed to carry anything incriminating with him, except his mobile phone. The tainted bribe amount (trap money) of Rs.10,000/- was put by Sh. Bharat Bhushan, independent witness, in the right side front pocket of the lower (trouser) worn by the complainant. The complainant was directed not to touch the said tainted amount and to hand over the said tainted amount to the accused, on his specific demand and not otherwise. Sh. Parveen Kumar, independent witness was directed to remain close to the complainant and act as a shadow witness to overhear the conversation and see the transaction of bribe money, which may take place between the complainant and accused. The shadow witness as well as the complainant were further directed to give a signal by giving a missed call on the mobile phone of TLO/ Inspector H.V. Atri or/and by rubbing their both hands on CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 6 of 81 their face, after the transaction of the bribe was over.
2.7 It is further the case of prosecution that thereafter, two new blank memory cards were arranged from the care taker. One memory card was opened in the presence of independent witnesses and complainant and was inserted in the DVR. The introductory voices of both the independent witnesses were recorded therein. The same DVR alongwith a memory card was to be given to the complainant on reaching the spot, in a switched on mode, to record the likely conversation which may take place between him and the accused. All these proceedings got concluded at 1.30pm.
2.8 It is further the case of prosecution that the trap team alongwith independent witnesses and complainant left the CBI office at about 2pm and reached near INA Market, at about 2.15 pm. After parking the vehicle on service lane, a call was made by complainant on the mobile phone of accused but he did not pick the call. However, after few seconds, a call was received from accused on the mobile number of complainant wherein the accused informed that he would be reaching the spot, within 5-7 minutes after which the complainant told the accused that they would meet at Sonu Chowminwala Shop (also known as Super Chinese Food). The DVR was kept in the left side shirt pocket of complainant in the recording mode and both the complainant and independent witness reached near the said shop. The other trap team members and another independent witness Sh. Bharat Bhushan, followed them in a discreet manner.
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 7 of 81
2.9 It is further the case of prosecution that after some
time, the accused came and met the complainant and all three of them i.e. complainant Sanjay, independent witness Sh. Parveen, and the accused, went inside the shop of Super Chinese Food and sat on a table and started having conversation. It is alleged by the prosecution that during the conversation, the accused demanded bribe amount from complainant by way of gesture of his hand, after which the complainant took out the tainted bribe amount (trap money) of Rs.10,000/- and handed it over to the accused.
2.10 It is further the case of prosecution that after the transaction of bribe amount was over, the shadow witness Sh. Parveen gave a missed call on the mobile number of TLO and thereafter, all the trap team members rushed to the shop of Super Chinese Food. In the meantime, the complainant, shadow witness and accused were seen coming out of the shop and accused was holding the bribe amount in his right hand. After introducing himself, the TLO challenged the accused for demanding and accepting bribe, on which the accused got perplexed and accepted that he had taken Rs.10,000/- from the complainant. The accused kept the bribe amount in his right side pant pocket stating that the said amount was given for rent. The accused was caught hold by wrists of both his hands. All the conversation between the accused and the complainant had got recorded in the memory card of DVR, which was kept in the pocket of complainant. The DVR was taken back from the complainant and was switched off.
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 8 of 81
2.11 It is further the case of prosecution that the
complainant narrated the conversation which took place between him and the accused and the demand of bribe by accused, by gesture. The independent witness Sh. Bharat Bhushan recovered the bribe amount from the right side pant pocket of accused. The details of GC notes recovered from accused were found tallying with the details of GC notes mentioned in the handing over memo, by the independent witnesses. Thereafter, washes of right hand fingers and left hand fingers of accused were taken separately, in freshly prepared separate colourless solutions of sodium carbonate and water and those solutions turned pink showing the presence of phenolphthalein powder. Those pink colour washes were transferred in two separate clean glass bottles, which were then sealed with the CBI seal and signed by the witnesses. Inspector Sunil Kumar prepared a rough site plan depicting the position of trap team members, the complainant, the two independent witnesses as well as the accused, during trap proceedings.
2.12 It is further the case of prosecution that since the trap was laid in a crowded INA Market and after the trap, public persons also started gathering, so it was decided to carry out further proceedings at a nearby Police Facilitation Kiosk of Delhi Police, infront of Delhi Haat and just opposite to INA Market. At the kiosk, the wash of pant pocket of accused was taken separately, in a freshly prepared separate colourless solution of sodium carbonate and water and the said solution turned pink CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 9 of 81 showing the presence of phenolphthalein powder. The pink colour wash was similarly transferred in a separate clean glass bottle, which was then sealed with the CBI seal and signed by the witnesses. The accused was arrested.
2.13 It is further the case of prosecution that during investigation, the memory card which contained the conversation recorded during trap proceedings between the accused and complainant, was seized and sealed. Inspector Sandeep Punia was deputed to conduct the house search of accused. The trap money recovered from accused was also seized and sealed. A recovery memo of all the aforesaid proceedings was prepared at the Police Kiosk itself.
2.14 It is further the case of prosecution that thereafter, the specimen voices of both the accused and the complainant were recorded separately in a blank memory card, in the presence of two independent witnesses. Thereafter, the concluding voices of both independent witnesses were recorded in the said blank memory card. The memory card was kept in separate brown envelope and sealed and was also signed by TLO and other witnesses. The specimen voice proceedings started at 9.45pm and got concluded at 10.15 pm. The DVR used in the case was also seized and sealed. The CBI brass seal was handed over to Sh. Bharat Bhushan, independent witness to keep the same in safe custody and to produce it before the court as and when directed.
2.15 It is further the case of prosecution that during
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 10 of 81
investigation, the exhibits i.e. bottles containing washes of right hand, left hand and right side pant pocket of the accused were sent to CFSL, New Delhi for chemical analysis and upon examination, CFSL expert gave positive opinion regarding presence of phenolphthalein powder in the above washes, vide his report dated 29.08.2019. During investigation, it was also established from the Customer Application Forms (CAFs) that the mobile numbers 9810276312 and 8178760841 were in the name of accused Harbir and complainant Sh. Sanjay respectively. Further, the CDRs of the above numbers, also corroborated the location and timing of the call between complainant and accused.
2.16 It is further the case of prosecution that during investigation, transcription of conversations recorded in the memory cards were prepared. Voice of accused Harbir was also identified by Sanitary Inspector Sukhbir Singh, Central Zone, SDMC as well as by the complainant. The memory cards were sent to CFSL alongwith copy of transcriptions for voice analysis and CFSL expert opinion, which was awaited at the time of filing of charge sheet. However, since the above facts disclosed commission of offence u/S 7 of PC Act on the part of accused Harbir, hence, charge sheet was filed against him for the aforesaid offence. Subsequently, FSL report dated 03.09.2019 was received as per which it was opined that the questioned voice recorded in the memory cards was the probable voice of accused Harbir, upon comparison with his specimen voice. It was also opined that the Digital Voice Recorder (DVR) was compatible with the aforesaid memory cards.
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 11 of 81
3. Prosecution Evidence
3.1 Prosecution has examined 16 witnesses in order to
prove its case. PW1 is Sh. Ramesh Verma, Additional Commissioner from South Delhi Municipal Corporation ("SDMC" for short), who accorded sanction vide order dated 25.11.2019, to prosecute accused Harbir, who was then working as Sanitary Guide with MCD.
During cross-examination by Ld. Defence Counsel, the witness stated that he had not made any separate enquiry apart from perusal of record, which was received by him from Vigilance Department. He further stated that he had perused the record and granted sanction on the same day, when he had received the record, on 08.11.2019.
3.2 PW2 is Sh. Satya Prakash, Sanitary Superintendent, in SDMC, Lajpat Nagar, Delhi, who deposed that the area of INA Market and Prem Nagar, was under the supervision of Harbir, who used to take attendance of Safai Karamcharis, allot cleaning work to them and sent them to their respective places. The dustbins kept in the area were of DDSIL and were maintained by DDSIL and if the same were not properly maintained and were found dirty, accused Harbir used to report about the same to Sanitary Inspector. The employees of DDSIL used to collect garbage and put it in Dhalavs (place of collecting garbage) under the supervision of Sanitary Guide of SDMC.
During cross-examination by Ld. Defence Counsel, the witness stated that there are rules which define duties of the CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 12 of 81 officers/ staff of SDMC. He further stated that the CBI did not enquire from him as to who used to allocate duties to accused Harbir.
3.3 PW3 is Inspector N. C. Nawal, then posted as Inspector, CBI, ACB, New Delhi. He is the verification officer of the present case and verified the complaint of complainant Sh. Sanjay, which was marked to him on 06.08.2019. He joined one independent witness Sh. Pradeep Kumar, Administrative Officer, Oriental Insurance Company, in the verification proceedings. During verification proceedings, he found that accused and complainant had negotiated about bribe, for putting garbage and it had been decided that both of them shall meet on 07.08.2019 between 2.15pm to 2. 30pm, for payment of bribe money. Since the complaint was verified, accordingly the present FIR was lodged on 07.08.2019 u/S 7 of PC Act and investigation was then marked to Inspector H.V. Atri, CBI, ACB. PW3 also joined in the trap proceedings.
During cross-examination by Ld. Defence Counsel, the witness stated that he did not verify the fact whether complainant actually had any rickshaw which could have been seized by accused and he relied upon the statement of complainant. He further admitted that in the malkhana of CBI, the articles having MR Number, when called needs to be duly entered in a register. He further admitted that memory card Q-1 (containing audio recording of conversation between complainant and accused) was not deposited in the malkhana on the same day i.e. 06.08.2019 but stated that the FIR was not CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 13 of 81 registered at that time. He denied the suggestion that voice recording Q-1 was manipulated by Sound Organizer Software and certain portions of the conversation containing exculpatory conversation was deleted. He further admitted that the owner of Sonu Chowminwala Shop (trap spot) and other people present in the shop, were not made witnesses.
3.4 PW4 is Sh. Pankaj Kumar Jain, who was then posted as Executive Engineer, Building Central Zone, SDMC, New Delhi. He deposed that in the year 2019, SDMC had given contract of collecting of garbage to M/s DDSIL. He was supervising the transportation of garbage from Dhalavs to Okhla Land Filling Site and Waste to Energy Site, Okhla. On the query of CBI officials, he had told them that the Dhalavs could be used for dumping waste material/ garbage by any public person including the employees of M/s DDSIL and SDMC & no officer was authorized to take money from any person for dumping garbage in the Dhalavs.
During cross-examination by Ld. Defence Counsel, the witness stated that the dustbins in dhalavs in the INA Market were of M/s DDSIL and there was no dustbin of SDMC in the said dhalavs. He further stated that the maintenance of the dustbins in the said dhalavs, was made by the officers/ employees of SDMC and if any dustbin was broken or not properly maintained, as per required standard, the officers/ employees of SDMC made complaint telephonically, directly to officers/ employees of M/s DDSIL.
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 14 of 81
3.5 PW5 is Sh. Surender Kumar, Nodal Officer, Bharti
Airtel, Okhla Phase-III, New Delhi. He deposed that on receipt of notice u/S 91 CrPC from CBI, he had provided the CDRs, CAFs, Tower Location Charts of mobile phone no.9810276312, which was issued in the name of Harbir, for the period 06.08.2019 to 07.08.2019, alongwith certificate u/S 65B of Indian Evidence Act.
In his cross-examination by Ld. Defence Counsel, the witness admitted that he did not have any personal knowledge of the case and whatever he had deposed, was on the basis of documents generated / maintained by Bharti Airtel Ltd.
3.6 PW6 is Sh. Rajiv Kumar, who was working since February 2017 as Supervisor in SHIFA, a sister concern of M/s DDSIL. His duty was to supervise the area of INA Market, Prem Nagar, South Extension, in the area of Kotla Mubarakpur. He deposed that he had been called at CBI office in September 2019, wherein he told the CBI officer that the dustbins installed in the area were of M/s DDSIL and he had never taken any charge from any person for dumping / transportation of the garbage in the dustbins. He further told the CBI officer that he had never demanded any money from accused Harbir or asked Harbir to take money from complainant for dumping garbage in the dustbins.
During cross-examination by Ld. Defence Counsel, the witness stated that he used to follow instructions of accused Harbir and Choudhary (who was above sanitary worker), for cleaning / transportation of garbage in the area as accused was CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 15 of 81 the sanitary guide. He further stated that he was not aware whether complainant had taken loan of any amount from accused Harbir and denied the suggestion that complainant had taken loan of Rs.1,000/- from accused and paid the same to him (PW6), in presence of one Gulfam, during hot exchanges. He further denied the suggestion that accused Harbir had been falsely implicated by CBI on his (PW6's) instance as accused used to pass many instructions to him, for cleanliness in the area.
3.7 PW7 is Sh. Kamal Kumar, Nodal Officer, Reliance Jio Infocom Ltd. He proved the CDR, CAF, Tower Location Chart of mobile no.8178760841, which was in the name of Sh. Sanjay (complainant) for the period 06.08.2019 to 07.08.2019.
In his cross-examination by Ld. Defence Counsel, the witness admitted that he did not have any personal knowledge of the case and whatever he had deposed, was on the basis of record maintained by the company.
3.8 PW8 is Inspector H. V. Atri, the then Inspector at CBI, ACB, having deputed from Delhi Police, since August 2015. The present case was marked to him for investigation after registration of FIR, in view of verification of the complaint of complainant Sh. Sanjay, by Inspector N.C. Nawal. PW8 laid a trap to apprehend the accused red handed in view of demand of bribe of Rs.15,000/- made by him. He joined two independent witnesses namely Sh. Parveen Kumar, Administrative Officer and Sh. Bharat Bhushan, both from Oriental Insurance of India and constituted a trap team consisting of himself, Inspector N.C. CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 16 of 81 Nawal, Inspector Harnam Singh, Inspector Sunil Kumar, Inspector A.K. Singh, Inspector Shyam Rai and SI Satyaveer.
The trap team members assembled in his chamber at about 12.15pm on 07.08.2019 and the purpose of laying trap was explained to them. The complainant had produced 20 GC notes of denomination of Rs.500/- totaling Rs.10,000/- which was to be used as trap money and it was smeared with phenolphthalein powder and the tainted money was kept in the right side of lower worn by complainant. Two new memory cards make Sandisk 8GB were also arranged and one of them was put in the DVR. Sh. Parveen Kumar, independent witness was asked to act as a shadow witness and remain present near the complainant to see and hear the conversation between complainant and accused, when the bribe amount was likely to be exchanged. Both were also directed to give signal to the trap team after completion of the bribe transaction.
After completion of pre-trap proceedings at about 1.30pm on 07.08.2019, the trap team left for INA Market and reached INA Market at about 2pm. After a phone call, the complainant and accused decided to meet at the shop of Sonu Chowminwala. During the conversation at the shop and in presence of shadow witness, complainant took out the tainted money and handed over to the accused, which was received by accused with his right hand. The shadow witness gave a missed call on the mobile phone of PW8, which was a pre decided signal and accordingly, the trap team members proceeded to the shop where accused was found coming out of the shop with bribe money in his hand. The accused was challenged upon which, he CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 17 of 81 put the bribe amount in his right side pocket of his pant and took the plea that the money was for rent. The accused was apprehended.
Thereafter, proceedings such as taking of right hand wash, left hand wash of the accused and sealing with the CBI brass seal was done. The tainted money was recovered by independent witness Sh. Bharat Bhushan from the right side pant pocket of accused and tallied with the denomination and numbers already mentioned in the handing over memo. The bribe money was seized and sealed. Inspector Sunil Kumar prepared a rough site plan of the spot. The accused was taken to a nearby Police Facilitation Kiosk infront of Delhi Haat opposite to INA Market, where the remaining proceedings were conducted. A copy of contents of the memory card was made with the help of write Blocker and the original memory card was seized and sealed. The accused was arrested at around 6pm. Other investigation work such as recording of introductory voices and concluding voice of witnesses, signing of the memos and exhibits etc. were also conducted and the CBI brass seal was handed over to independent witness Sh. Bharat Bhushan with direction to produce the same as and when required by the legal authorities. Various documents and material objects were exhibited during his testimony.
In his cross-examination by Ld. Defence Counsel, the witness stated that during his enquiry from complainant in pre-trap proceedings, complainant did not inform him regarding making any previous complaint against the accused, with CBI. He further admitted that he had not asked complainant regarding CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 18 of 81 there being any history of financial transactions between them. He further stated that he did not recollect in whose possession, the DVR was when the accused had stated at the time of his apprehension that "ye rent ke paise hain". He volunteered that earlier the DVR was with complainant and during apprehension of accused, it was taken from complainant by Insp. N.C. Nawal. He further did not recollect whether there was any recording in the DVR regarding of the accused being challenged by the CBI officers and the explanation given by accused regarding the money given to him. He denied the suggestion that the explanation of accused regarding it being a committee money, was also recorded in the DVR but the same was removed from it by using the Sound Organizer Software.
3.9 PW9 is Smt. Deepti Bhargava, Sr. Scientific Officer, Grade-II, CFSL, New Delhi. Vide letter dated 22.08.2019, the Left Hand Wash (LHW), the Right Hand Wash (RHW) and Right Pant Pocket Wash (RPPW) of the accused were forwarded to her for laboratory examination and expert opinion, through Director, CFSL. She examined the above exhibits by Physio Chemical Method, Chemical Tests, UV-VIS spectophotometry and thin layer chromatographic techniques and found the presence of phenolphthalein and sodium carbonate in the above exhibits and accordingly, prepared her report.
In her cross-examination by Ld. Defence Counsel, the witness stated that she cannot say whether phenolphthalein powder and Sodium carbonate were easily available in open market.
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 19 of 81
3.10 PW10 is Sh. Sanjay, the complainant, who was
working as Private Safai Worker in the area of INA Market, New Delhi and used to collect garbage and dump the same in dustbins installed in the INA Markets. He was not employed with any govt. or any private agency as Safai Karamchari and so, he used to charge the shopkeepers of the INA Market, for cleaning the area. He deposed that accused (correctly identified) was asking for a sum of Rs.15,000/- from him in advance and Rs.10,000/-pm thereafter, for permitting him to put garbage in the dustbins installed at the back side of fish market in INA Market, New Delhi. The accused was demanding money saying that private persons were not permitted to put garbage in the said dustbins as they were only for the use of workers/employees of MCD. Since he did not want to pay the amount to accused, therefore, on 06.08.2019, he went to CBI office, CGO Complex, New Delhi and made a complaint to CBI against the accused, which he was asked to write down on a paper. Thereafter, he deposed about verification proceedings conducted by Inspector Nawal on 06.08.2019 and the trap proceedings conducted by Inspector H.V. Atri on 07.08.2019. He had also brought the amount of Rs.10,000/- which was used as trap money, after tainting it with phenolphthalein powder, by CBI officials.
Besides, the verification proceedings and trap proceedings, this witness also stated that when he alongwith independent witness Sh. Parveen Kumar was sitting inside the shop of Sonu Chowminwala alongwith accused, he told the accused that could arrange only Rs.10,000/- upon which the CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 20 of 81 accused asked him to arrange Rs.15,000/- as the accused would not be able to manage with Rs.10,000/-. PW10 assured accused that he will arrange the remaining amount either tomorrow or day after tomorrow after which the accused asked him to swear by him which he did accordingly. The accused then orally asked him to pay the bribe money by speaking the words "la de" and then he gave Rs.10,000/- to him. The accused was thereafter apprehended by CBI team after missed call (pre-decided signal) was made by shadow witness Sh. Parveen. He also deposed about the manner in which, the verification proceedings & trap proceedings were conducted and various exhibits and documents were prepared by the CBI officials.
Lastly, he stated that he knew Rajiv (PW6) and Gulfam (PW13) who were both working as Supervisors in INA Market. He alleged that both the aforesaid Supervisors alongwith accused Harbir, used to raise objections when he was trying to dispose off the garbage in the dustbins placed in the INA Market. He further stated that except accused, no other person demanded any money / bribe from him for allowing him to throw garbage in the dustbins.
In his cross-examination by Ld. Defence Counsel, the witness stated that he never had any bank A/c in ICICI Bank situated at Greater Kailash, though, there were talks about opening a bank A/c in ICICI Bank. He further stated that he used to be member of committee in INA Market, where 10-20 people contributed money for mutual saving. He further stated that he was part/ member of a committee lastly, about 10-15 years ago. He further volunteered that in the year 2013, he had approached CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 21 of 81 CBI against accused Harbir, with a complaint about similar facts as that of present case, however, no action was taken by CBI people stating that they do not take action on safai karamcharis.
He denied the suggestion of Ld. Defence Counsel that he was part of a committee for Rs.1,20,000/- in March 2019, from which he withdrew Rs.1,00,000/- in cash from accused Harbir, at a loss of Rs.20,000/-. He further denied the suggestion that on the repeated asking of accused as well as other persons, he gave a security cheque in the sum of Rs.1,20,000/- to accused, with an assurance that he will initially pay Rs.15-20,000/-pm, so that the balance due amount of previous months of the committee, may be covered and thereafter, will pay Rs.10,000/- pm as per the terms of the committee. PW10 was confronted with one cheque Ex. PW10/D1, wherein he admitted his signatures but also stated that he cannot say if the said cheque pertained to his bank A/c. He further stated that the name of drawee and amount in figures, words, in the cheque, were not in his handwriting. He denied that the said cheque was handed over by him to the accused and volunteered that he did not know as to how the accused came in possession of the said cheque.
He further stated that he had not told CBI that he went to lodge a similar complaint like the present one, in year 2013 as well. He further admitted that prior to 06.08.2019, the accused had not asked for any bribe from him. He further admitted that during conversation, the accused had stated " tu unka hisab karde" but he could not say accused was asking him to clear whose A/c. He further admitted that during conversation, he had stated that "mujhe achha nahi lagta ki koi karj ke paison CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 22 of 81 ke liye mujhe phone kare". He further admitted that during the conversation, accused had responded to him that he had never raised any objection upon him in putting the garbage in dustbins. He however, volunteered that the accused had said so, as the deal with respect to giving and taking of bribe was already struck.
In his further cross-examination, PW10 stated that he did not know any other person who had given any kind of bribe to accused. He further stated that after accused Harbir had taken the bribe amount, it was accused who left the shop first. He further stated that he did not remember as to what kind of enquiry was conducted by CBI official from accused or the conversation which took place between them. He also did not remember whether the DVR was with him when accused said to CBI officials that he had received money from him (PW10) as rent amount.
The witness was re-examined by Ld. PP, CBI wherein he stated that the cheque Ex.PW10/D1 was never handed over to the accused. He, in his re-cross examination, denied the suggestion that cheque Ex.PW10/D1 was handed over by him to accused as security, towards the committee amount taken by him from accused.
3.11 PW11 is Sh. Sukhbir, who was working as Sanitary Inspector at Ward No.60, Central Zone, MCD, Lajpat Nagar, New Delhi. The accused was working under him as Sanitary Guide and he was having talking terms with the accused. As per PW11, he was called by CBI and made to hear a voice on a laptop in the CBI office. He identified the voice of accused CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 23 of 81 Harbir among the voices of two people who were talking. He also identified the voice of accused which was recorded during the verification proceedings and trap proceedings, in the court.
This witness was not cross examined by Ld. Defence Counsel despite opportunity being given.
3.12 PW12 is Dr. Subrat Kumar Chowdhary, who was working as Sr. Scientific Officer, Grade-II in Physics Division. As per PW12, four sealed parcels, certificate of authority, transcriptions and specimen signatures were received in CFSL alongwith forwarding letter dated 03.09.2019. The sealed parcels contained questioned voice and specimen voice of accused Harbir and one DVR. On auditory and spectrographic examination, he found the specimen voice of accused Harbir tallying with the questioned voices and gave a report dated 20.03.2020 regarding the same.
The witness in his cross-examination by Ld. Defence Counsel, admitted that CFSL, CBI, New Delhi was not notified u/S 79 (A) of IT Act, 2000. He further stated that since there was no query for examination of tampering of voice data recorded in the memory cards Q-1, Q-2 & S-1, he did not check for tampering of their data however, no kind of abnormalities were noticed by him during examination. In reply to question of Ld. Defence Counsel, the witness stated that in case a portion is deleted either from the starting or at the end or both, then the digital recording should begin abruptly or end abruptly or both. By cutting a portion digitally either from the starting or at the ending of an audio recording, examination of wave form and CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 24 of 81 spectrograph will also reveal that some changes had been made at the beginning or at the end or at both.
He further stated that the DVR sent to him contained a software by name Sound Organizer, in it. He volunteered that the software was incorporated in the DVR by the manufacturer for the purpose of playback of the audio recordings made by the DVR, in a computer. Further, through the Sound Organizer Software, portion of audio recording can be deleted as well. Though, he denied that the DVR used in the present case can be used for editing of voice recording in any manner. He further stated that the DVR had internal storage.
3.13 PW13 is Sh. Gulfam, who was Supervisor in Pitambar Transport Services, which company was engaged in collection and transportation of garbage / waste. He deposed that neither M/s DDSIL nor Pitambar Transport Services used to charge money from anyone, who collected and put the garbage in the dustbins placed in INA Market. He also stated that he had never asked and demanded any money from anyone including complainant Sh. Sanjay, towards collection and disposal of waste or had authorized accused Harbir to do so.
The witness in his cross-examination by Ld. Defence Counsel stated that accused Harbir had started a committee in INA Market area in the year 2019 and he (PW13), complainant Sh. Sanjay, one Sheela, Sh. Kehar Singh, etc., were members in the said committee, which was of 12 members. He further stated that there was a dispute regarding money between complainant and accused. The money of first committee was that CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 25 of 81 of accused Harbir, the money of second committee was that of complainant Sh. Sanjay but thereafter, complainant stopped paying money in the committee, which he was liable to pay. He (PW13) had also asked complainant why he was not making the due payments in the committee on which complainant told him that he had talked with accused Harbir and had also given a cheque to accused, as a guarantee.
He further stated that he had made four payments in the committee i.e. Rs.8,000/- in June 2019, Rs.7,800/- in July 2019, Rs.9,000/- in August 2019 & Rs.8,000/- in September, in cash to accused Harbir but had not taken any receipt regarding the same. He admitted that he had not told the fact regarding committee and payments made by him, to the IO.
He was re-examined by Ld. PP, CBI wherein he stated that in the year 2019, his salary was Rs.12,000/-pm. Initially, he stated that he had withdrawn Rs.80,000/- from the committee but again said that he had not withdrawn any amount from the committee. He denied the suggestion that if any committee was started, a fixed contribution/payment was to be made every month and not different amount by the members of the committee. In his re-cross-examination, he admitted that whatever installments of payment in the committee were made by him (PW13), were made before the arrest of the accused.
The witness was again recalled for his re-
examination in view of order dated 03.02.2024, wherein he stated that the IO had merely asked him about his name, his father's name and where he did his job and also whether he took money to pick garbage. The witness was declared hostile by prosecution, CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 26 of 81 as he was denying some part of his statement u/s 161 Cr.P.C.
In his cross-examination by Ld. PP CBI, he denied that he was informed by the IO at CBI office, that he had been called for enquiry as accused Harbir had been arrested for demand and acceptance of bribe. However, when he was read over his statement u/s 161 Cr.P..C., the witness admitted that the IO had asked him about complainant Sanjay as well as accused Harbir and he also admitted the contents of statement u/s 161 Cr.P.C. as correct. He denied the suggestion that if any committee is started, then a register is maintained in which the names of all the committee members and the details of committee members are mentioned, along with their signatures in token of attending proceedings of the committee.
He further admitted that if any person takes the committee (money), he also produces one guarantor, who promises every other member of the committee to make the payment on behalf of that person/ member in case that person/ member failed to makes the re-payment of the committee. He denied the suggestion that he had not asked for return of the money invested in committee, as there was no such alleged committee. He further stated that he never asked accused Harbir for refund/ return of his money. On court query, witness stated that he does not have any document regarding the running of the committee or the fact that he had made payment in the committee. He denied the suggestion that he was deposing falsely or was giving evasive reply, in order to help accused Harbir.
Thereafter, the witness was again cross-examined by CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 27 of 81 Ld. Defence counsel, wherein he stated that no receipt or record is maintained of the committees of the nature, which was being run by accused Harbir.
3.14 PW14 is Sh. Parveen Kumar, the independent witness. He was sent to CBI office by the Vigilance Officer of his company, upon a telephonic message received from CBI on 05.08.2019. He had joined the investigation of the present case on 06.08.2019 at 10am. He had witnessed both the verification proceedings conducted by Insp. N.K. Nawal on 06.08.2019 and trap proceedings conducted by Insp. H. V. Atri on 07.08.2019. He was the shadow witness who was present with complainant at the shop of Sonu Chowminwala, wherein the transaction of bribe amount took place. His testimony is on the same lines as that of verification officer Insp. N. K. Nawal and TLO Insp. H. V. Atri.
In his cross-examination by ld. Defence counsel, PW14 admitted that he did not have personal knowledge regarding the bribe amount of Rs.15,000/- being asked by accused Harbir. Further stated that accused was apprehended by Insp. Atri inside shop of Sonu Chauminwala after he (PW14) made the pre-decided signal. He further stated that when accused Harbir had stated regarding money being that of rent and Insp. Atri had asked rent for which purpose, the DVR was with the complainant. The complainant was standing at the same spot, where accused was interrogated inside the shop. When the accused was apprehended by his both hands by the CBI officials, the DVR was taken from complainant by one CBI official. He further admitted that DVR was taken back by CBI official after CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 28 of 81 interrogation of accused Harbir for half minute.
3.15 PW15 is Sh. Bharat Bhushan, another independent witness, who was working as Senior Assistant in Oriental Insurance Company Ltd., Barakhamba Road, New Delhi. He joined the trap proceedings on 07.08.2019 alongwith other trap team members. He had conducted the personal search of complainant and kept the tainted amount of Rs.10,000/-, in the right pocket of lower of complainant, to be used as trap money. When the accused was apprehended, he was asked by the CBI officials to recover the money from the trouser of accused Harbir, which he did. His other testimony is on the same lines as that of complainant and TLO /Inspector H. V. Atri with respect to the trap proceedings.
During cross-examination, the witness stated that the CBI officials did not ask complainant regarding any other financial transaction with the accused, in his presence. He further admitted that he did not hear the conversation of accused and complainant, inside Sonu Chauminwala shop. He further stated that CBI officials did not ask anyone present at the shop, at the time of incident to become witness.
The witness was re-examined by Ld. PP CBI, wherein he stated that during the entire trap proceedings, he had not heard about the word "committee" from any CBI official or the complainant or in the recorded conversation between complainant and accused. The witness was re-cross-examined by Ld. Defence counsel wherein he stated that in the audio conversation which was played in CBI office, he did not hear CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 29 of 81 accused Harbir saying that he had taken money towards rent.
3.16 PW16 is Inspector Pardeep, the IO of this case. He took over the investigation of this case after seeking permission from the court through his application, on 20.08.2019, as he was Sub Inspector in CBI, at that point of time. An office order was also passed by the then SP, CBI regarding transfer of investigation from Inspector H.V. Atri to him. During investigation he sent exhibits i.e. Hand Wash and Pocket Wash of accused to CFSL for expert opinion regarding presence of phenolphthalein powder and obtained their reports. He also prepared the rough transcript of the conversation between accused and complainant and sent it for expert opinion to CFSL, New Delhi for matching the voice of accused Harbir. He also got recorded the statements of verification officer, TLO, independent witnesses and other witnesses. He also collected the documents regarding the posting, duties and responsibilities of accused, the CAF, CDR and Cell ID Charts of the mobile numbers of complainant and accused. He also obtained sanction for prosecution against accused Harbir from the competent authority of SDMC. After completion of investigation, he filed the charge sheet.
In his cross-examination, PW16 had stated that he had heard recorded conversation during the investigation from the investigation copies of Q-1 and Q-2. He further stated that he got the transcript Ex. PW10/B and Ex. PW10/D typed through a steno. He denied the suggestion that he had prepared the CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 30 of 81 statement of complainant Sanjay and other witnesses, as per the contents mentioned and copying, pasting the contents of verification memo, handing over memo and recovery memo, already prepared by the verification officer and trap laying officer, without examining them.
When the audio conversation recorded in memory card Q-1 contained in yellow colour envelope Ex.PW10/G (colly), in file no. 190806_1721, was played in court during cross-examination of this witness, he admitted that there was reference of some "cheque / check" by accused Harbir at the time stamp at around 1:10 minute and 4:20 minute, though the context in which the word cheque/ check had been mentioned by accused, was not clear from the conversation, as the voice was not clear. Witness denied that he had deliberately concealed those portions of conversation, to falsely charge sheet the accused.
3.17 It is also pertinent to mention that during prosecution evidence, an application u/S 91 CrPC was moved on behalf of accused for summoning of complete bank record of A/c no. 00291528530 pertaining to ICICI Bank, Greater Kailash-I, New Delhi i.e. the A/c opening form alongwith the details of cheques issued or used by A/c holder including one cheque bearing no.396368. The said application was allowed by Ld. Predecessor of this court vide order dated 17.05.2023. The concerned bank official was summoned with the documents, upon which one Sh. Saurabh Kumar, Relationship Manager of the aforesaid bank appeared before the court. He stated that the aforesaid bank A/c no. 00291528530 was never opened in this CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 31 of 81 branch and so, there was no record pertaining to the said bank A/c. He further stated that before opening any bank A/c of any customer, the bank issues an I-Kit (Introductory Kit), which is having the cheque book, A/c number and customer ID, to the prospective customers and it was possible that the said prospective customer may not have taken interest in opening the bank A/c with the bank, later on and so, such customer would remain in possession of cheque/cheque book mentioning the A/c number without having bank A/c in ICICI bank.
3.18 Thereafter, PE was closed.
4. During the prosecution evidence, following documents were exhibited / marked in the testimony of prosecution witnesses.
List of Exhibited/Marked Documents Note : The sorting of the below mentioned documents is in the order as they were produced/referred and marked or exhibited in the testimony of a particular witness for the first time, even though many of those documents have been referred and proved during testimony of other witnesses as well.
S. Witness Exhibited/ Nature of document Remarks
No Marked
1 Ramesh Ex.PW- 1/A Sanction for
Verma prosecution, order
dated 25.11.2019
2 Satya ExPW-2/A Document D-21
Prakash (Colly) containing joining
report of accused
dated 30.01.2019 and
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 32 of 81
one office order
dated 29.01.2019
3 N.C. Ex.PW-3/A Handwritten
Nawal complaint of Sh.
Sanjay
Ex.PW-3/B Verification Memo
dated 06.08.2019
Ex.PW-3/C Handing Over Memo
dated 07.08.2019
Ex.PW-3/D Recovery Memo
dated 07.08.2019
4 Surender Ex.PW-5/A Call Detail Record,
Kumar (Colly) Customer
Application Form
etc. of mobile
number of accused
5 Kamal Ex.PW-7/A Call Detail Record,
Kumar (Colly) Customer
Application Form
etc. of mobile
number of
complainant
6 H.V. Atri Ex.PW-8/A Specimen Voice
Memo dated
07.08.2019
Ex.PW-8/B Rough Site Plan of
the trap spot dated
07.08.2019
Ex.PW-8/C Arrest cum Personal
Search Memo of
accused
Ex.PW-8/D Office Order dated
20.08.2019 regarding
transfer of
investigation
Ex.PW-8/E The wearing pant of
the accused on the
day of trap
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 33 of 81
Ex.PW-8/F The yellow envelope
(Colly) Q-2 containing 8GB
memory card with its
packing
Ex.PW-8/G The yellow envelope
(Colly) S-1 containing 8GB
memory card with its
packing
Ex.PW-8/H The yellow envelope
(Colly) alongwith DVR
Ex.PW-8/I Nokia mobile phone
of accused
7 Deepti Ex.PW-9/A The chemical
Bhargava examination report of
the washes
Ex.PW-9/B The yellow envelope
with seal impression
of CFSL
Ex.PW-9/C Three cloth wrappers
(Colly) with words LHW,
RHW and RPPW
written on them
Ex.PW-9/D Three glass bottles
(Colly) marked RHW, LHW
& RPPW
8 Sanjay Ex.PW- FIR of the present
10/A case
Ex.PW- Transcript of
10/B conversation dated
06.08.2019 between
complainant and
accused
Ex.PW- Voice Identification
10/C cum Transcription
Memo dated
05.09.2019 (D-18)
Ex.PW- Transcript of
10/D conversation dated
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 34 of 81
07.08.2019 between
complainant and
accused
Ex.PW-10/E Voice Identification
cum Transcription
Memo dated
05.09.2019 (D-20)
Ex.PW-10/F The brown envelope
containing the trap
money
Ex.PW- The yellow envelope
10/G Q-1 containing 8GB
memory card with its
packing
Ex.P1 Trap money
amounting to
Rs.10,000/- in the
denomination of
Rs.500/- each
Ex.PW- Cheque for a sum of Document
10/D1 Rs.1,25,000/- produced
by accused
in his cross
examination
9 Sukhbir Ex.PW- Voice Identification
11/A1 Memo of the voice of
accused
10 Dr. Subrat Ex.PW- Letter dated
Kumar 12/A1 03.09.2019 of SP,
Choudhar CBI to CFSL
y Ex.PW- CFSL report
12/A2 regarding voice
examination
Ex.PW- Letter dated
12/A3 04.05.2020 of
(OSR) Director CFSL to SP,
CBI
11 Praveen Ex.PW- The yellow envelope
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 35 of 81
Kumar 14/X containing the pant
of accused on the day
of trap
12 Bharat Ex.PW- CBI brass seal
Bhushan 15/A1 produced by PW15
Ex.PW- The wearing pant of
15/A2 accused which was
re-exhibited
Ex.PW- The white envelope
15/A3 containing three cloth
wrappers used for
wrapping the mouth
of the bottles
13 Inspector Ex. Certified copy of
Pradeep PW16/A order dated
20.08.2019 of Ld.
Predecessor
regarding
authorization of
PW16 to conduct
investigation
Ex. Letter dated
PW16/A1 22.08.2019 of SP,
CBI to Director
CFSL for obtaining
expert opinion qua
hand washes and
pocket washes of
accused
5. Statement of accused u/S 313 Cr.P.C.
5.1 The statement of accused u/s 313 Cr.P.C. was
recorded on 01.06.24, 10.07.24 and 20.07.24. The accused denied the allegations and evidence brought on record by CBI. He alleged that the complainant Sh. Sanjay got a false FIR registered against him with the help of CBI, by concealing true facts.
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 36 of 81
The accused submitted that he and complainant were having friendly and family term since long. He had organized one committee of Rs.1,20,000/- and the complainant was one of the members of the said committee. Complainant was supposed to pay Rs.10,000/- p.m. for about 12 months. However, in March, 2019 after paying one or two installments, complainant withdraw the committee at a loss of Rs.20,000/- and took Rs.1,00,000/- from him (accused). Thereafter, complainant stopped paying further installments of the committee. He and other members of the committee, reprimanded complainant as well as requested him to pay the balance amount of the installments and honour the promise. On their repeated request, complainant promised to clear the balance overdue installments amount by initially paying Rs.15,000/- to Rs.20,000/- p.m. and thereafter, continuing to pay Rs.10,000/- towards monthly installments. On his asking, complainant also handed over a duly filled cheque Ex.PW10/D1 of Rs.1,25,000/- in his (accused) favour as a surety/security.
The accused further alleged that the complainant started bearing grudge against him and he (complainant) lodged a false complaint against him in the CBI office. The accused further contended that during conversation recorded by the CBI, he only talked about the amount of the overdue installments of the committee as promised by complainant but he and CBI misinterpreted the same and lodged a false FIR against him (accused). The accused also alleged that the grudge and motivation of complainant to get him falsely involved in a case of CBI can be deduced from the fact that complainant voluntarily CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 37 of 81 stated in his cross examination that in the year 2013, he had approached CBI with a similar complaint against him (accused) as that of the present case, but no action was taken by the CBI and he further admitted that prior to 06.08.2019, he (accused) never demanded any bribe from him (complainant).
As per the accused, on the day of trap, he accepted his own money towards the outstanding amount of committee and on challenge, he even told the CBI officials that the amount was accepted by him towards the overdue amount of the committee. He also told them about the issuance of the surety/security cheque, but he was threatened that if he disclosed these facts, the CBI will register another case of disproportionate assets against him. One of the members of the committee was Sh. Gulfam (also examined as PW13) besides other members.
The accused however, did not deny that conversations took place between him and complainant Sh. Sanjay and the audio recordings made by CBI contained his voice and that of complainant Sh. Sanjay but contended that the conversation was with respect to installment of the committee amount. He had assured the other members that complainant had promised to pay his share of the committee and assured to clear entire dues. He however, alleged that his disclosure regarding accepting the money from complainant towards installment of the committee, was deleted from the end of the recording in the memory card by the CBI, by using sound organizer software of the DVR.
The accused contended that he was innocent and falsely implicated in this case. He also stated that though he did CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 38 of 81 not want to lead defence evidence, however, he was relying upon the statement dated 18.07.2023 of Sh. Saurabh Kumar, Relationship Manager, ICICI Bank, who was summoned pursuant to his application u/s 91 CrPC.
5.2 A supplementary statement of accused u/S 313 CrPC r/w Section 165 of Indian Evidence Act was also recorded on 12.09.24 wherein the accused stated that there was no document of committee being run by him and he did not use to issue receipt to the members of the committee, when they made their monthly contribution. He further admitted that PW13 had made payment of Rs.30,000/- to Rs.40,000/- in four installments in the committee but the said amount was not returned by him to PW13 and the committee had failed. Though, he further stated that after his release from judicial custody in this case, he had made payment of about Rs.5,000/- to PW13, on his asking. As per the accused, he was the guarantor of the committee and so he was guarantor for every member, whoever would take the committee. He further stated that there was no fixed amount of contribution/ payment by the members of the committee, for every month . He further admitted that no record or register was maintained by him regarding the said committee and the committee members were his known persons. As per the accused, the amount of contribution by each committee member, used to be fixed as per the committee taken by an individual member ( after adjusting the loss or profit made in the committee) and this amount was uniform for all the committee members.
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 39 of 81
5.3 As the accused chose not to lead defence evidence,
hence, DE was closed.
6. Final Arguments
6.1 Ld. PP for CBI has argued that the case against
accused Harbir stands proved beyond reasonable doubt. He has submitted that accused demanded bribe from complainant Sanjay, for permitting him to dump garbage in the MCD dustbins which were installed at INA Market, despite the fact that any public person could dump garbage in those dustbins. He specifically argued that this fact is proved from the evidence of complainant Sh. Sanjay, who was examined as PW10. He further argued that even the recorded conversation between the accused and the complainant, both at the time of verification proceedings and trap proceedings, show that the accused had demanded bribe from complainant. In fact, the accused even admitted the fact of having received the bribe money of Rs.10,000/- from complainant, at the time of trap proceedings. He further argued that the testimonies of PW10 (complainant Sanjay), PW14 (independent shadow witness Praveen Kumar) and PW15 (independent witness Bharat Bhushan) have remained unrebutted on material particulars. He further argued that the verification proceedings and trap proceedings have been duly proved not only from the testimonies from the above witnesses but also from the testimonies of PW3 Insp. N.C. Nawal (verification officer) and PW8 Insp. H.V. Atri (trap laying officer). He further argued that the testimonies of other supporting witnesses have further established that the accused had demanded bribe from CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 40 of 81 complainant Sanjay, for the aforesaid illegal purpose. Accordingly, he has prayed for conviction of the accused in view of the evidence led by the prosecution and the documentary evidence on record.
6.2 On the other hand, Ld. Counsel for accused has vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt. He argued that the accused had been falsely implicated by the complainant in order to settle his personal grudge. He argued that the complainant and accused were having family and friendly term for a long time. The accused had organised a committee of Rs.1,20,000/- in which the complainant was one of the members. In March, 2019, the complainant withdrew the committee at loss of Rs.20,000/-, for an amount of Rs.1,00,000/-, however, he stopped paying the installments of committee after one or two installments, due to which he was regularly reprimanded by the accused. The payment of Rs.10,000/- received by accused from the complainant, on the day of trap, was towards one of the pending installments of the committee. However, the complainant falsely implicated the accused in this case. Despite these facts being brought to the CBI officials on the day of trap, the accused was apprehended and arrested at the behest of complainant.
It was further argued that on repeated asking of accused, the complainant also gave a cheque Ex.PW10/D1 of Rs.1,20,000/- in favour of accused as security. The accused had admitted his signatures on the cheque Ex.PW10/D1. Though, the bank account of ICICI Bank, from which the cheque was issued CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 41 of 81 could not be proved to be that of complainant, however, pursuant to application u/s 91 Cr.PC. moved by accused, one bank officials from ICICI Bank had appeared before the court and stated that the cheque was of their branch itself. He further stated that during the relevant time, whenever a prospective customer used to visit the bank branch, an Introductory Kit, including the cheque book, used to be handed over to those prospective customers and it was quite possible that the cheque book would remain with the prospective customers, even if he later chooses not to open bank account in ICICI Bank. The complainant in his cross-examination had admitted that there were some talks regarding opening bank account with ICICI Bank, though he did not open the same, as per the complainant. Hence, it was argued that the cheque Ex.PW10/D1 was the same cheque, which may have been handed over to the complainant, when he visited ICICI Bank Branch to open his account and the complainant gave the cheque of an unopened bank account, to the accused, to cheat him.
He further argued that the complainant had made a similar complaint against the accused in the year 2013, as admitted by him in his cross-examination on 06.10.2022, despite the fact that he had admitted that prior to 06.08.2019, the accused had not demanded any bribe from him, which shows that the complainant was having enmity with accused.
It is further argued that PW10 as well as other witnesses have admitted that the DVR was with complainant in switched on mode, when accused was challenged by CBI officials regarding Rs.10,000/- received by him, on the day of CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 42 of 81 trap. However, the defence given by the accused, surprisingly did not get recorded in the DVR, which shows tampering made by CBI officials with the audio recording. Accordingly, he prayed that the accused deserves to be acquitted from the charges framed against him.
6.3 In the rebuttal arguments, Ld. PP, CBI has argued that the Ld. defence counsel has failed to show any material discrepancy or contradiction in the testimony of witnesses. As regards the defence taken by accused that he had received Rs.10,000/-, towards pending installments of the committee started by the accused, there is no documentary evidence on record, to prove that any such committee was organized by the accused. He further argued that neither in the verification proceedings nor at the time of trap proceedings, the accused uttered to the complainant that he was accepting the money as installment of committee. In fact, the complainant repeatedly asked the accused to permit him to dump garbage in the dustbins, which shows the reason for giving bribe money to the accused. It is quite unreasonable to expect that an accused will directly again admit the reason for taking bribe money, if he had already made a demand earlier and stuck a deal, before complainant makes a complaint with CBI. In fact the word 'committee' has not been spoken by the accused in the entire verification proceedings and trap proceedings, which in itself, shows that the same is false defence.
He further argued that at the time of hearing on bail application of accused as well as during arguments on charge, no CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 43 of 81 such defence was taken by the accused that the bribe amount received by accused, was towards pending installments of committee. The accused had taken different defences during those times and it shows the falsity of the defence of accused. Moreover, with the change in counsel, this new defence of the bribe amount being installment of committee, had been taken.
As regards the security cheque is concerned, Ld. PP submitted that it is an admitted fact that the bank account mentioned on the cheque does not belong to the accused. It has also not been proved by the defence that the complainant ever visited ICICI Bank to get his account opened and so, the reliance of Ld. Defence counsel on the statement of Sh. Saurabh Kumar (bank official from ICICI Bank), is of no use. He further argued that the complainant being illiterate person, wrongly identified the signatures on cheque Ex.PW10D1 as his own, simply because of the reason that he also signs in Hindi, as 'Sanjay', as can be seen on the cheque Ex.PW10/D1, even though, bare perusal of this signature as compared with the signatures put by the complainant in his complaint Ex.PW3/A and also at the time of his deposition in court, shows that the signatures of complainant is completely different from that made on cheque Ex.PW10/D1.
As regards the allegations of tampering with DVR is concerned, Ld. PP CBI has relied upon the testimony of PW12 Dr. Subrat Kumar Chaudhary, the expert from CFSL, who had examined the voice recording of the complainant and accused, which was recorded at the time of verification proceedings and trap proceedings, stating that no such fact was deposed by PW12 that the audio recordings sent to him, were tampered. He further CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 44 of 81 argued that since the complainant and accused were coming out from the shop of Sonu Chauminwala together, the CBI officials had taken the DVR from complainant and switched it off before challenging the accused for receiving the bribe money, and so, the utterances of accused could not get recorded. He once again prayed for conviction of accused in view of evidence on record.
6.4 Ld. PP for the CBI has relied upon the following judgments in support of his arguments:-
S. Judgment Name On the point of No.
1 Banda Nageshwar Rao Two different explanations of Vs. State, Crl. Appeal the same act, given by accused No.655/2006 passed by was discarded.
Hon'ble Telangana High
Court
2 Faquira Vs. State of UP, Minor discrepancies guarantee
AIR 1976 SC 915 that the witnesses are not
tutored.
3 Sri C. I. Emden Vs. The Hon'ble High Court and
State of UP, AIR 1960 Hon'ble Supreme Court re-
affirmed the rejection of SC 548 explanation of the accused by Ld. Trial Court.
4 State of Maharashtra Vs. Explanation of accused Rashid B. Mulani, 2006 discarded by the Ld. Trial Court AIR SC 825 and also confirmed by Hon'ble Supreme Court.
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 45 of 81
6.5 On the other hand, Ld. Defence Counsel has relied
upon the following judgments in support of his arguments :-
S. Judgment Name On the point of No
1. Anand Ram Chandra Prosecution has to prove its Chogule Vs. Sidarai allegations beyond all Laxman Chogule & ors. reasonable doubt, whereas the Crl. Appeal No. 1006 of accused has only to create a 2010. doubt about the prosecution case and the probability of its defence.
2. T. Subramanium Vs. State - do -
of Tamil Nadu Crl. Appeal No.186/2000.
3. Punjab Rao Vs. State of Explanation given by accused Maharashtra, in his statement u/s 313 Cr.P.C. Manu/SC/1480/ 2001. has also to be considered.
4. Lachman Dass Vs. State Conviction on the sole of Punjab AIR 1970 SC testimony of complainant,
450. having reason to harm the accused, set aside.
5 M. Abbas Vs. State of Prosecution has failed to travel Kerala the distance between "May be true and must be true" to prove its case.
6 Varkey Joseph Vs. State of - do -
Kerala 1993 Crl. LJ 2010, SC.
7 Ouseph Alias Thankachan The accused can change his line Vs. State of Kerala, of defense, during trial and take (2004) 4 SCC 446 alternative defense.
8 Ramjanam Singh Vs. Only the evidence given on oath State of Bihar, (1954) 2 is material during trial.
SCC 655
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 46 of 81
7. Legal Position
7.1 As far as the legal position on the subject in hand is
concerned, it would be appropriate to firstly set out the relevant provisions of Section 7 of P.C. Act 1988.
Section 7 of The Prevention of Corruption Act, 1988 reads as under :
"7. 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 or 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 three years but may extend to seven years and shall also be liable to fine.
(Explanations) --(a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 47 of 81 what he does not intend or is not in a position to do, or has not done, comes within this expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."
7.2 Hence, in order to prove its case herein, qua offence punishable under Section 7 of PC Act 1988, prosecution is required to prove that :-
1) the accused is a public servant,
2) he had obtained, any gratification other than legal remuneration, from complainant;
3) for himself or for any other person ;
4) for the purpose of permitting the complainant to dump garbage in the dustbins of INA market.
7.3 There are catenas of judgment on the aspect that proof of demand of illegal gratification is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder. So, the prosecution is also CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 48 of 81 required to prove both the demand as well as the acceptance to bring home the guilt of accused. (Refer:- P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh (2015) 10 SCC 152) 7.4 In the case titled as A. Subair v. State of Ker- ala (2009) 6 SCC 587, while dwelling on the purport of the statu- tory prescription of Sections 7 and 13(1) (d) of the Act, it was ruled that the prosecution has to prove the charge thereunder be- yond reasonable doubt, like any other criminal offence and that the accused should be considered to be innocent till it is estab- lished otherwise by proper proof of demand and acceptance of il- legal gratification, which are vital ingredients necessary to be proved to record a conviction.
7.5 Further in State of Kerala and Anr. v. C.P. Rao (2011) 6 SCC 450, the Hon'ble Supreme Court, while re- iterating its earlier dictum, vis-a -vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.
7.6 Very recently, the Hon'ble Constitutional bench of Hon'ble Supreme Court of India, clarifying the law on the aspect of Sec 7 and Sec 13 (1) (d) of PC Act, held in Neeraj Dutta Vs State (Government of GCT of Delhi) 2022 SCC Online SC 1724 that :
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 49 of 81
"74. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1) (d)(i) and (ii) of the Act.
(b) In order to bring home the guilt of accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment.
In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)
(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 50 of 81 would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption."
7.7 Having enunciated the law on the aspect, I shall now proceed to evaluate and appreciate the evidence brought on record by the prosecution.
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 51 of 81
8. Appreciation of Evidence
8.1 As far as the present case is concerned, the
following points arise for consideration of this court :-
A. Whether the accused being a public servant, had demanded Rs.15,000/- and thereafter accepted Rs.10,000/- from the complainant on 07.08.2019 or not?
B. Whether there was a demand of bribe by accused from the complainant for permitting him to dump garbage in the dustbins of DDSIL or not?
C. Whether the accused has been able to set up a probable defence that the amount of Rs.10,000/- was accepted by him towards payment of installment of committee then being run by him?
D. Whether the prosecution has been able to prove its case beyond reasonable doubt or not, while considering the inconsistencies contradictions and infirmities, cited by Ld. Defence counsel?
8.2 Point of consideration:- Point A Whether the accused being a public servant, had demanded Rs.15,000/- and thereafter accepted Rs.10,000/- from the complainant on 07.08.2019 or not?
8.2.1 As far as the above point of consideration is concerned, it has not been disputed by the accused that he is/ was CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 52 of 81 a public servant, at the relevant point of time. He has further not disputed that he had demanded Rs.15,000/- from the complainant Sanjay and he had also not disputed that consequent to his demand, the complainant had handed over a sum of Rs.10,000/- to him on 07.08.2019 at the shop of Sonu Chowminwala. It is also not in dispute that there is any inherent defect in the sanction granted by the Competent Authority i.e. PW1. However, the accused has taken a plea that he had never demanded bribe from the complainant or had received Rs.10,000/- as bribe, from him. These aspects will be dealt with in the forgoing paragraphs.
8.3 Point of consideration:-C Whether the accused has been able to set up a probable defence that the amount of Rs.10,000/- was accepted by him towards payment of installment of committee then being run by him?
8.3.1 It is the defence of the accused that he was running a committee of 10 to 12 members in the year 2019, in which the complainant was a member thereof. The complainant had defaulted in the timely payment of installment of the committee after making 2-3 payments and he had been demanding the complainant to pay his installments as he (accused) was the guarantor in the committee being run by him. Pursuant to his repeated demands, the complainant had handed over Rs.10,000/- to him (though the initial demand was of Rs.15,000/- atleast, with further payment of Rs.10,000/- each to be made in subsequent months), towards the outstanding installments. The complainant CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 53 of 81 had also handed over a cheque Ex.PW10/D1 of Rs.1,20,000/- to the accused, as security towards the committee.
8.3.2 As far as the above contention of accused is concerned, complainant PW10 has totally denied in his cross- examination that he was member of any such committee, in the year 2019, which was being run by accused. He admitted being member of a committee but only 10-15 years ago (from the date of deposition i.e. 06.10.2022). He also denied that he had handed over the cheque Ex.PW10/D1 to the accused at any point of time. Under such circumstances, it was incumbent upon the accused to bring atleast some evidence on record that he was running any such committee in the year 2019 and that complainant was its member thereof. However, when supplementary statement of accused was recorded, he admitted that he did not have any document to support his defence of running a committee in the year 2019 or the complainant being member of such committee. Under such circumstances, the court is only left with statements of the parties regarding the running or non-running of the alleged committee.
8.3.3 Accused had relied upon the testimony of PW13 Sh. Gulfam in support of his contention that committee was being run by him during the relevant time, in which the complainant was also a member. PW13 also deposed in his cross-examination by Ld. Defence counsel that complainant had taken the money of the second committee (out of the chain of committees for 12 months) and thereafter had stopped paying money in the committee, which he was liable to pay. PW13 had also asked CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 54 of 81 complainant to make payment to accused, upon which complainant had told him that he had given one cheque to accused, as guarantee, for making payment of the committee. However, when a court query was put to PW13 when he was being cross-examined by Ld. PP CBI, PW13 stated that he did not have any document regarding the running of the committee or the fact that he had made any payment in the said committee. He further admitted in his examination by Ld. PP CBI that the aforesaid security cheque Ex.PW10/D1 was not handed over by the complainant to the accused, in his presence. Hence, even as per this witness, neither he was having any document of running of committee nor the alleged security cheque Ex.PW10/D1 was handed over in his presence.
8.3.4 Obviously, PW13 was declared hostile by the prosecution and hence he was cross-examined by Ld. PP CBI. However, for the mere fact that the prosecution witness has been declared hostile and was cross-examined by the prosecution, in itself, is not a ground to throw away his testimony as unreliable. However, careful appreciation of the testimony of PW13 shows that the witness is totally unworthy of credit. PW13 was examined two times before the court, firstly on 24.1.2023 and thereafter he was recalled for his re-examination on application of CBI and was again examined on 19.2.2024. A perusal of his testimony dated 19.02.2024 shows that he stated before the court that when the IO had called him for investigation purpose, the IO had merely asked his father's name and where he did job and whether he used to take money to pick garbage. He further stated CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 55 of 81 that he was not told by the IO as to why he was called for investigation. On court query, he further stated that when he was called at CBI office, there was no conversation or enquiry from him with respect to accused Harbir. However, on 24.01.2023, PW13 had deposed that he had never asked or demanded money from any one including complainant Sanjay, in lieu of collection and disposal of garbage and waste nor had he authorised any person including accused Harbir, to demand and collect money on his behalf, from any person, for collection and disposal of garbage. Furthermore, on 19.2.2024, PW13 admitted his statement u/s 161 Cr.PC recorded by IO, to be correct when cross-examined by Ld. PP CBI. So, it is apparent that PW13 wanted to conceal true facts from the court and mislead it.
8.3.5 The testimony of PW13 is also suspicious for the reason that it has come in the audio conversation recorded in memory card Ex.PW8/F (colly), whose transcript Ex.PW10/D is on record, that complainant had raised apprehension at point now X- X1 (points marked during this judgment, for identification purpose) in transcript Ex.PW10/D that " Ab mujhe to har mahine dene hai bhai. Ab aisa na ho kabhi Gulfam tang kare kabhi ye bane", meaning thereby the complainant had some issues/dispute even with PW13 Gulfam, with respect to payment of money. Under such circumstances, PW13 deposing against complainant may not come as a surprise.
8.3.6 Furthermore, in his statement u/s 313 Cr.PC recorded on 20.07.2024, accused had mentioned that the CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 56 of 81 complainant was required to pay Rs.10,000/- per month for about 12 months towards the committee, which was of Rs.1,20,000/-. He further stated in his supplementary examination u/s 313 Cr.PC there was no fixed amount of contributory payment by the members of the committee, for each month. The amount of contribution by each committee members used to be fixed as per the committee taken by an individual member (after adjusting the loss or profit made in the committee). Now PW13 Gulfam stated that he had made payments of Rs.8000/-, Rs.7800/- Rs.9,000/- and Rs.8,000/- in four installments, towards the same committee. However, as per accused Rs.10,000/- (a fixed amount) was payable by the complainant, for each installment, which clearly shows that both PW13 and accused are stating about different amount to be paid by the members towards the committee. Furthermore, accused accepts payment of Rs.30,000-40,000/- by Gulfam, so why was complainant asked to make payment of a fixed amount of Rs.10,000/- per installment. This is unexplained.
8.3.7 The falsity regarding existence of committee is further established from the fact that as per accused, the committee came into existence somewhere in early 2019 since he stated that the complainant had taken the second committee for Rs.1,00,000/- (loss of Rs.20,000/-) in March, 2019. However, PW13 stated that the first installment paid by him towards the same committee for Rs.8,000/-, was in June, 2019. This shows that there was no committee in existence in March, 2019, if PW13 was deposing correctly. Moreover, PW13 claims to have paid Rs.7,800/- in August, 2019 and Rs.9,000/- in September, CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 57 of 81 2019, when the fact is that the accused was in judicial custody in the present case, during the relevant period and no amount was paid by PW13 when the accused went into custody. This shows that both PW13 and accused are lying on the aspect of existence of committee.
8.3.8 One another factor which needs to be highlighted is that PW13 stated that he did not ask the accused for return of the amount of contribution (Rs.30,000-Rs.40,000/) made by him. The accused also admits this fact. The question which arises is that as per accused, he had already taken the amount of Rs.1,20,000/- which was the total committee amount for the first month. So, the accused was already having excess money in his possession, which he received from the first committee but still PW13 did not ask for a proportionate return of money, is quite strange.
8.3.9 In fact, a specific question was also put to the accused as to how he remembered the contribution made by a particular member of the committee, in the absence of any record or register, the accused stated that all the committee members were his known persons. However, it is quite impossible for a person, who is also a layman, to remember the individual contribution made towards a particular committee by a particular member, in the absence of any record. How will he remember as to which member had made what payment and who had not, especially when the committee was supposed to continue for one year.
CBI Vs. Harbir Atul Krishna Agrawal
RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC
Date of Decision:30.09.2024 Page No. 58 of 81
8.3.10 The committee alleged to be run by the accused, was
admittedly an illegal committee. So, it will not be disclosed in any books of account nor the profit earned from it, will be disclosed in the income tax return of any member. Rather it is a known fact that normally a register or a kachha record is maintained of such committees, to know as to how much contribution has been made by a particular member. It is quite implausible to accept that no record or register was maintained by the accused of the alleged committee being run by him. Lastly, the accused being a public servant, cannot lawfully start any such committee and that too, by keeping his department/ office in dark and also not disclosing profit earned from such committee, in his Income Tax Return. Hence the fact that no document pertaining to the committee has been produced by accused, it is difficult to accept this defence.
8.3.11 Coming to the aspect of security cheque Ex.PW10/D1, the accused alleges that the same was given by complainant to him, which the complainant denies. Complainant had admitted his signatures on the cheque Ex.PW10/D1 however, he denies that the same had been handed over by him to accused. Obviously, no date has been mentioned by the accused when the said cheque was handed over by the complainant, to him. One official from ICICI Bank, Greater Kailash-I Branch, summoned by the court pursuant to an application u/s 91 Cr.P.C. moved by accused, stated before the court that cheque Ex.PW10/D1 was issued from a bank account number, which was never opened CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 59 of 81 with the bank. He though further stated that as per the prevalent practice during the relevant period, even before opening any bank account of any customer, the bank issued Introductory Kit, which was having a cheque book, account no. and customer ID and it was possible that cheque Ex.PW10/D1 was one of such cheque, from an unopened bank account. However, this in itself does not prove that complainant had visited ICICI Bank for opening of his account and later decided not to do so.
8.3.12 In fact, the signature on cheque Ex.PW10/D1 also vastly differs from the signature of complainant which he used to make at the relevant time (as apparent from his signature on complaint Ex.PW3/A ) as well as his signatures made at the time of deposition in this court. Moreover, cheque Ex.PW10/D1 has not been filled by the complainant. However, since complainant admits his signature on Ex.PW10/D1 to be his, the court cannot take a different view. Be that as it may, even if one presumes that cheque Ex.PW10/D1 bears the signature of complainant, there is nothing on record to suggest that it was given as a security cheque to the complainant except suggestion being given to PW10, which he had denied. It needs to be re-iterated that accused has failed to prove the alleged committee being run by him.
8.3.13 Even for the sake of arguments, it is presumed that the complainant had made payment of only one or two installments of the committee, the complainant was still liable to pay either Rs. 1,00,000/- or Rs.1,10,000/- only (after deducting the amount of installments paid by complainant which was either CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 60 of 81 Rs.10,000/- or Rs.20,000/- as stated by accused, from the total liability of Rs.1,20,000/-, the maximum amount to be paid by every member of the committee, for twelve months.). So why the complainant handed over a cheque of Rs.1,20,000/- to the accused, has not been explained by the accused. Moreover, if the accused as per practice, used to take security cheque from every member of the committee, then he could have produced the security cheque issued by other members of the committee, but he did not do so. This further belies the claim of existence of any committee.
8.3.14 Moving further, as per accused, the cheque Ex. PW10/D1 was the security cheque given by complainant as a guarantee for payment of the committee amount, under such circumstances, why was the said cheque not presented for encashment, by accused, when the complainant stopped making payments of installment amount. As per PW13 Gulfam, the committee had failed after the accused went into custody, however, the record shows that the accused was in judicial custody in this case only for about 15-20 days. So, any ordinary person would have immediately presented the cheque for encashment, instead of suffering loss due to malicious act of another person, especially when he was allegedly framed in a false case, as asserted by the accused.
8.3.15 Ld. Defence counsel urged that in the audio conversation Ex.PW10/G, the accused can be heard speaking the word "cheque" twice, which refers to the aforesaid cheque. As regards this, it can be seen that in the cross-examination of CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 61 of 81 PW16, the audio conversation recorded in memory card Ex.PW10/G was played in court, wherein at two places, the accused can be heard mildly speaking, the word "चेक". Since the word is spoken in Hindi language, it is not clear whether the accused was referring to the word 'cheque' or to the word 'check'. Both the words 'cheque' and 'check' have entirely different meaning. The court had specifically mentioned at that time that the context in which the above word "चेक" was spoken by accused, was not clear from the conversation since the voice was unclear. Moreover, the accused would have mentioned "security cheque" and not merely the word "cheque", since there is no mention of the "committee" by accused or about the amount due towards committee, in the entire conversation Ex.PW10/G and Ex.PW8/H. It is an undisputed fact that the accused had not spoken the word committee in any of his recorded conversations with the complainant, which also makes the defence of accused unbelievable.
8.3.16 Lastly, one more important factor needs to be highlighted here is that when the bail application of accused was moved by his earlier counsel, the plea taken by accused was that the complainant used to take money from him time to time and when the complainant failed to return the money of Rs.30,000/-, some hot arguments occurred and then the complainant in league with his colleagues, falsely roped the accused in the present case, in a pre-planned manner. No defence of there being any committee run by accused, was taken then. Similarly when CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 62 of 81 arguments on charge were heard, when accused was already on bail, the defence taken by his then counsel was that accused had received the amount of Rs.10,000/- as rent, as stated by him, at the time of apprehension by CBI officials. Infact all the trap witnesses examined by prosecution including the complainant and the shadow witness, have deposed the same fact that accused had told at that time, that the money received by him was towards rent, before putting it in his pant pocket. Then, when PW6 was cross-examined by then Ld. Defence counsel, a suggestion was given to PW6 that accused Harbir was falsely implicated by CBI on his (PW6) instance, as accused Harbir used to pass many instructions to him (PW6) for cleanliness in the area, which suggestion PW6 had denied. Even in the cross- examination of PW6, a question was put to him that complainant taken a loan of Rs.1,000/- from accused Harbir. So, three different versions were given, on behalf of accused.
8.3.17 Moreover, when the present counsel took over the matter, the defence of the amount of Rs.10,000/- being received by accused towards installment of committee, cropped up. Had there been any truth in the aforesaid defence of accused, his previous counsel would not have put forth different defences with respect to the amount taken by accused from the complainant. The stand of the accused would have been constant if it was truthful but that is not so.
8.3.18 In the case titled as Sri C. I. Emden vs The State of UP AIR 1960 SC 548, while dismissing the appeal of the CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 63 of 81 appellant/convict had observed that :-
"We are prepared to assume in favour of the appellant that even if the explanation given by him is a reasonably probable one the presumption raised against him can be said to be rebutted. But is the explanation. given by him reasonably probable ? That is the question which must now be considered.
What is his explanation ? He admits that he received Rs. 375 from Shukla but urges that Shukla gave him this amount as a loan in order to enable him to meet the expenses of the clothes for his school-going children. In support of this the appellant gave evidence himself, and examined other witnesses, Kishan Chand and Ram Ratan being the principal ones amongst them. The High Court has examined this evidence and has disbelieved it. It has found that Kishan Chand is an interested witness and that the story deposed to by him is highly improbable. Apart from this conclusion reached by the High Court on appreciating oral evidence adduced in support of the defence plea, the High Court has also examined the probabilities in the case. It has found that at the material time the appellant was in possession of a bank balance of Rs. 1,600 and that his salary was about Rs. 600 per month. Besides his children for whose clothing he claims to have borrowed money had to go to school in March and there was no immediate pressure for preparing their clothes. The appellant sought to overcome this infirmity in his explanation by suggesting that he wanted to reserve his bank balance for the purpose of his daughter's marriage which he was intending to perform in the near future. The High Court was not impressed by this story; and so it thought that the purpose for which the amount was alleged to have been borrowed could not be a true purpose. Besides the High Court has also considered whether it would have been probable that Shukla should have advanced money to the appellant. Having regard to the relations between the appellant and Shukla it was held by the High Court that it was extremely unlikely that Shukla would have offered to advance any loan to the appellant. It is on a consideration of these facts that the High Court came to the conclusion that the explanation CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 64 of 81 given by the accused was improbable and palpably unreasonable."
8.3.19 Ofcourse in the judgment relied upon by the Ld. Defence counsel in case titled as Ouseph Alias Thankachan Vs. State of Kerala, (2004) 4 SCC 446, the Hon'ble Supreme Court had held that the accused can take alternative defences during trial. However there is a divergence of opinion on that aspect in different judgments and hence, in my humble opinion, whether an accused can take alternative defences or not, has to be decided on the basis of facts and circumstances of an individual case. Further the accused is required to prove (though not beyond reasonable doubt) that one of such defence is probable.
8.3.20 In my considered view, the accused has not even prime facie shown that there was a committee being run by him in which complainant was a member and the amount of Rs.10,000/- received by him, was payment towards part installment for the said committee. Accordingly, there is no question of any probable defence being set up by the accused even on the touchstone of preponderance of probabilities. The judgments as relied upon by the Ld. Defence counsel, hence, do not apply to the fact and circumstances of this case. The defence of accused regarding existence of any committee being a false assertion, deserves to be rejected and is accordingly, rejected.
8.4 Points of consideration:- B & D Whether there was a demand of bribe by accused from the complainant for permitting him to dump garbage in the CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 65 of 81 dustbins of DDSIL or not?
Whether the prosecution has been able to prove its case beyond reasonable doubt or not, while considering the inconsistencies contradictions and infirmities, cited by Ld. Defence counsel?
Both the above points of contention are based on same fact and evidence and hence, discussed together.
8.4.1 Though as discussed above, the probable defense of accused that the money received by him was towards payment of installment of committee being run by him, is not at all sustainable, however that in itself, does not lead to the conclusion that the money received by accused was towards bribe. The prosecution is still required to prove beyond reasonable doubt that the amount received by the accused was in the shape of a bribe. However, perusal of the evidence brought on record shows that there are some material infirmities in the prosecution case.
8.4.2 It is the case of the CBI that after the transaction of bribe got over and complainant, accused and shadow witness were coming out of the shop, the DVR was taken from complainant and switched off by one CBI official, which means that till the time the DVR was with the complainant, it was in a switched ON mode. The question is whether the DVR was with the complainant at the time when the accused was challenged about the money received by him? This is an important question for the reasons as discussed hereinafter.
8.4.3 As per recovery memo Ex.PW3/D, when the
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Date of Decision:30.09.2024 Page No. 66 of 81
accused was apprehended by CBI officials after transaction of bribe and was challenged about the amount received by him from the complainant, accused kept the amount in the right side pocket of his pant. As per the charge-sheet and also stressed by the Ld. Defence Counsel, the accused also allegedly stated at that time that the amount was given to him by complainant, towards rent, however, this fact was not got recorded in memory card Ex.PW8/F through the DVR, which was then still lying in the pocket of complainant, in a switched ON mode. This creates suspicion on the authenticity of audio recording and its tampering thereof, cannot be ruled out.
8.4.4 In his examination-in-chief dated 15.02.2020, the verification officer Inspector N. C. Nawal (examined as PW3), had deposed that after the transaction of bribe took place, when the complainant, independent witness and the accused came out of the shop after some time, the accused was having the bribe money in his right hand, openly. When TLO Inspector H.V. Atri (examined as PW8), challenged the accused saying that he had accepted bribe amount from the complainant, the accused told PW8 that the money in his hand was the rent given by complainant and then accused immediately put that money in the right side front pocket of his pant. PW8 and SI Satvir apprehended the accused by his wrists. PW3 took the DVR from the complainant and switched off the same. This shows that the DVR was in a switched on mode, at the time when the accused was challenged about the money received by him.
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8.4.5 This fact is further corroborated from the testimony
of PW8, who deposed that when accused came out from the shop, he was holding the bribe money in his right hand. They intercepted the accused and after introducing the trap team members, they challenged the accused regarding the money accepted by him, upon which the accused got perplexed and accepted having received money from complainant but put the bribe money in his pant pocket stating that it was the money towards rent. Accused was then apprehended by them. In the meantime, Inspector N.C. Nawal (PW3) took the DVR from the complainant and switched it off. So, even as per PW8, the DVR was with the complainant when the accused was challenged and enquired about receiving bribe money.
8.4.6 Even the complainant examined as PW10 stated the same facts that on enquiry by CBI officials, accused told them that he had received the rent amount and kept it in front right side pocket of his pant. Thereafter, one CBI officer had taken out the recording instrument from the pocket of his (PW10's) shirt. Lastly, PW14 the independent witness Sh. Parveen Kumar stated in his cross-examination as under:-
"When the accused Harbir had stated regarding money being that of rent and Inspector Atri had asked rent for which purpose, the DVR was with the complainant Sanjay. The complainant Sanjay was standing at the same spot where the accused Harbir was interrogated inside Sonu Chawminwala shop. When the accused was apprehended by his both hands by the CBI officials at that time the CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 68 of 81 DVR from the complainant Sanjay was taken by CBI official whose name I am unable to recollect."
8.4.7 Hence, from the testimony of above witnesses, who are all material witnesses of the prosecution, it is quite clear that the DVR was in a switched ON mode, in the pocket of complainant when the accused was challenged about receiving the bribe amount. Hence, the said conversation between PW8 and accused or even a part thereof, if not the entire conversation, ought to have been recorded in the memory card Ex.PW8/F. However, when the conversation recorded in the above memory card was played in court, there was no such recording of conversation between PW8 and accused. This shows that the later portion of the audio file containing the aforesaid conversation, had been edited to exclude the challenge made to accused and the explanation given by him.
8.4.8 One can argue that even if the said later portion was deleted from the file, however, the prior conversation recorded in the DVR is not proved to have been tampered with. However, the question is not whether there has been any editing which does not affect the inculpatory conversation between accused and complainant but rather the question is can such tainted evidence, be relied upon in a court of law. The answer is NO. Rather if the portion of enquiry from accused had been included in the recorded conversation, it would have shown fairness in investigation.
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8.4.9 Moreover when the FSL expert PW12 Dr. Subrat
Kumar Chowdhary was cross examined by Ld. Defence Counsel, he stated that since there was no query (from IO) regarding examination of (audio recordings) for tampering, therefore, he did not check it for tampering of the electronic data contained in memory cards Q-1, Q-2 and S-1. Though, he further stated that he had not noticed any kind of abnormality during their examination, however the fact remains that his report Ex.PW12/A2 is still completely silent regarding there being no abnormality or that there was no tampering with data. PW12 further admitted that the DVR contained one software namely "Sound Organizer" (which is incorporated in the DVR by the manufacturer itself) and the said software had the option of editing of audio files and through the use of said software, the portion of an audio recording can be deleted as well. PW12 further admitted that there was no query on the point that the same DVR was used for audio recording Q-1, Q-2 & S-1, which was sent to him for examination, so he had not given any opinion even in that context.
8.4.10 The above facts create a reasonable suspicion on the prosecution case. Even if the conversation between TLO and accused was insignificant, there was no justification for the CBI officials to delete the said conversation from the audio file. An electronic evidence whose credibility and authenticity becomes doubtful, cannot be used against the accused. There are various judgments on this aspect.
8.4.11 In Yusufalli Esmail Nagree vs The State of
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Maharashtra AIR 1968 SC 147, the Hon'ble Supreme Court had observed that :-
"In R. v. Maqsud Ali (1965 2 AER 464) a tape record of a conversation was admitted in evidence, though the only witness who overheard it was not conversant with the language and could not make out what was said. If a statement is relevant, an accurate tape record of the statement is also relevant and admissible. The time and place and accuracy of the recording must be proved by a competent witness and the voices must be properly identified. One. of the features of magnetic tape recording is the ability to erase and re-use the recording medium. 'Because of this facility of erasure and re-use, the evidence must be received with caution. The court must be satisfied beyond reasonable doubt that the record has not been tampered with."
(emphasis supplied) 8.4.12 Again in the case of R.M. Malkani v. State of Maharashtra [1973] 2 SCR 417, the Hon'ble Supreme Court observed that tape recorded conversation was admissible provided firstly that the conversation was relevant to the matters in issue secondly, there was identification of the voice and thirdly, the accuracy to tape recorded conversation has to be proved by eliminating the possibility of erasing the tape.
8.4.13 In a recent case titled as Rajesh Gupta vs State through Central Bureau of Investigation 2022 SCC Online SC 1107, it has been held as follows :-
12. On the issue of evidentiary value and credibility of the recording in the cases of trap, the law is well settled in the case of Ram Singh vs. Col. Ram Singh 1985 (Suppl) SCC 611, wherein this Court held that tape recorded statement is admissible in evidence if the voice of the speaker is identified by the maker of the record and other persons recognizing his voice. In case, the maker is unable to CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 71 of 81 identify the voice, strict proof would be required to determine whether or not, the said voice is of alleged speaker. The accuracy of the tape recorded statement must be proved by the maker of the record by satisfactory evidence, direct or circumstantial. The possibility of tampering with, or erasure of any part of the tape -
recorded statement must be totally excluded. The voice of the particular speaker must be clearly audible and must not be lost or distorted by other sounds or disturbances, otherwise, the transcript as prepared, is inadmissible in evidence.
(emphasis supplied) 8.4.14 Besides, it is the prosecution's own case that the accused was demanding Rs.15,000/- from complainant to permit him to dump garbage in the dustbins installed at INA Market, however, as per the transcript Ex.PW10/D, when complainant told accused that he would be harassed if the accused prevented him from using the dustbins, upon which, the accused told him that he had not prevented him (complainant) from doing so, after which the complainant acknowledged it and said that the accused was correct. The relevant portion of the said conversation as per the transcript of trap proceedings, is as follows:-
संजय - मुझे तो कु ड़ा कु ड़ेदान में डालना ही है। कु ड़ादान आपका आपने मना करी तो मैं परेशान हो जाऊं गा।
हरबीर - मैंने मना करी तेरे को चुपचाप सुन।
संजय - बात आपकी ठीक है।
8.4.15 The above transcript of conversation does not give an impression that the accused had prevented the complainant from dumping garbage in the dustbins. The fact that the alleged bribe money was being asked by accused for some other purpose and not for dumping garbage, can also be inferred from the CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 72 of 81 further portion of conversation recorded during the verification proceedings wherein, the complainant had stated to accused about repayment of some debt. The relevant later portion of the same transcript is as follows:-
संजय - भाई देख लो 10 नहीं तो............ मैं 15 हो तो 15 भी दे दूँ। मैं तो.............. कौन चाहता है कि कर्ज के लिए फोन आए। मुझे तो आपको देने ही हैं। मेरे कू डा डलवा रहे हो मेरे तो काम ही बंद हो जाएगा।
8.4.16 Though it also needs to be re-iterated that it is not clear from above words of complainant as to whether he was talking about repayment of his own debt or the debt of accused since there was some talk between them that accused had to pay money to some other persons as well, however still the factum of reference to some kind of debt, cannot be lost sight of.
8.4.17 Moreover, the complainant also told the accused during conversation that he (complainant) will give Rs.15,000/-
to him (accused) in the same manner like the previous month, when he (complainant) came alongwith his child. The relevant portion of the transcript of verification proceedings Ex.PW10/B, is as follows:-
संजय - अरे भाई कु छ ही देर तो बाकी है कल जैसे आया था ना पिछले महीने ऐसे ही बच्चों को लेने आऊं गा तुरंत आपको दे दूंगा 15 हजार मना कोई कर रहा हूं।
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8.4.18 In the later portion of the same transcript, the
complainant told the accused that he had given money to the accused even in the previous month. The relevant portion of the same transcript is as follows:-
संजय - भाई कोई बात नहीं। आप अपने पास से ही दे दो जिसको देने है। अब भाई एक बात बताओ कल मैं उस दिन आया था पिछले महीने दिए ना मैंने आपको? बच्चो को ले के आया था स्कू ल से 8.4.19 This shows that the complainant had handed over money to accused even one month prior to the said trap proceedings, whether for dumping garbage or for any other reason. However, when the complainant was cross examined in court by Ld. Defence Counsel, he stated that prior to 06.08.2019, the accused had not asked for any bribe from him. This shows that the complainant had deposed falsely about above fact before the court despite that he had given money to the accused even prior to making CBI complaint (as also impliedly admitted by the complainant in the conversation recorded during the verification proceedings). This creates a doubt on the motive of complainant in making a complaint with CBI, on incorrect facts.
8.4.20 Moreover, the accused can be repeatedly heard telling the complainant that he (complainant) should honour his words. For example at two places, in the transcript of trap proceedings, he can be heard saying:-
हरबीर - जबान की लाज रखा।
......................
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हरबीर - यार जुबान की कीमत होती है, अगर बात
बनी होती तो मैं कल ही ले लेता।
8.4.21 Accused stressed on the word "Zubaan" at various
places in his conversation with complainant and asked him to pay the money to him (accused). Why will a person asking for bribe from another person, will keep on emphasizing that the bribe giver should not retract from his promise to pay, as if there was some previous liability or promise to pay. At none of those times, the complainant told accused that he had not given any such promise to pay to him. This again does not support the allegation of complainant of demand of bribe by accused.
8.4.22 Ld. PP, CBI has vehemently argued that the complainant had repeatedly told the accused both at the time of verification proceedings and in the trap proceedings that he be permitted to dump the garbage in the dustbins of INA Market, to which the accused never responded in clear terms. Had there been no issue of dumping garbage between the complainant and accused, the accused would have immediately stopped the complainant from repeatedly raising the matter of dumping of garbage. However, in my considered opinion, the said argument is not sustainable for the reason that there is no specific conversation of either the complainant stating that the accused had prevented him from dumping the garbage or of the accused acknowledging the same. Moreover, if the accused had demanded bribe for dumping garbage for the first time on 06,08,2019, the prosecution fails to explain as to why the complainant had given money to the accused in previous month, CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 75 of 81 as stated by him in his conversations with the accused.
8.4.23 The complainant in his cross examination has further admitted that he did not know any other person from whom the accused had demanded bribe, besides him. This is also surprising for the reason that if the accused had been in a habit of asking bribe for dumping garbage in the dustbins, he would have asked other such private Safai Karamcharies to pay bribe to him.
The prosecution fails to explain as to why the complainant was singled out by accused, to pay bribe to him.
8.4.24 There is another anomaly in the prosecution case. The complainant volunteered in his cross examination that even in year 2013, he had approached CBI against accused with a complaint about similar facts as that of the present case. However, CBI did not take any action stating that they don't take action on safai karamcharis (cleaners). The complainant did not disclose this fact either to the verification officer or to the TLO. Moreover, he further stated in his cross-examination, as also mentioned above that prior to 06.08.2019, the accused did not ask for any bribe from him. Hence, either the complainant was trying to get a false case registered against the accused in year 2013 for demand of bribe or that what he stated in his cross- examination, was incorrect. Either way, the testimony of PW10 becomes further unreliable, especially when it is compared with the transcripts of the audio recording made during verification proceedings and trap proceedings.
8.4.25 Lastly, as per prosecution's own case, the accused
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had kept the money in his pant pocket, when he was challenged by PW8 for accepting the bribe stating that it was money received towards rent. The said act of keeping the trap money in his pocket by accused despite coming to know that he was being questioned by CBI officials, is quite unusual. Any ordinary person, who had just been caught accepting bribe from another, would be shell-shocked under such circumstances and even though in all probability, he would try to justify the act of taking money but he certainly would not put the trap money in his own pocket, in the presence of CBI officials. This act of accused shows that either he was of a daring nature or that he had received the money from complainant under those circumstances in which the accused felt himself entitled to receive money from complainant.
8.4.26 As already mentioned above, mere acceptance of money by an accused is not sufficient for the prosecution to prove it's case, the prosecution was also required to lead positive and substantial evidence in order to prove the demand of bribe by the accused. Only then, the prosecution case can be considered to be duly proved. There are serious doubts on the prosecution case for the reasons as discussed above. The prosecution case may be true but the evidence on record, is not conclusive in that regard.
8.4.27 In Ghurey Lal v. State of U.P (2008) 10 SCC 450, the Hon'ble Supreme Court had held that :-
"66. In Bhagwan Singh & Others v. State of M.P. (2002) 4 SCC 85, the Court repeated one of the fundamental principles of criminal jurisprudence that if two views are CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 77 of 81 possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court observed as under:-
"7. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate court but a Judge made guidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided."
67. In Harijan Thirupala & Others v. Public Prosecutor, High Court of A.P., Hyderabad (2002) 6 SCC 470, this Court again had an occasion to deal with the settled principles of law restated by several decisions of this Court. Despite a number of judgments, High Courts continue to fail to keep them in mind before reaching a conclusion. The Court observed thus:
"10. The principles to be kept in mind in our system of administration of criminal justice are stated and restated in several decisions of this Court. Yet, sometimes High Courts fail to keep them in mind before reaching a conclusion as to the guilt or otherwise of the accused in a given case. The case on hand is one such case. Hence it is felt necessary to remind about the well-settled principles again. It is desirable and useful to remind and keep in mind these principles in deciding a case.
11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 78 of 81 prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case."
(emphasis supplied) 8.4.28 Then in the case titled as Sujit Biswas vs State Of Assam AIR 2013 SC 3817, it was again held as under:-
6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions.
In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 79 of 81 upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v.
Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U. P., AIR 2012 SC 1979).
(emphasis supplied)
9. Decision 9.1 In view of aforesaid findings and discussions, I am of the considered opinion the prosecution has failed to prove its case beyond reasonable doubt, against the accused. The conspectus of evidence on record and its appreciation thereof, suggests that the complainant had given money to the accused, even previously, but for what purpose, has not been proved on record. The evidence also suggests that the accused had been vehemently seeking payment of money from the complainant both at the time of verification as well as on the trap day, in the same manner in which the complainant had paid money to him earlier. So, this was not the only occasion when money was paid by complainant to the accused. It is quite possible that the accused had restrained the complainant from dumping garbage in the dustbins installed at the INA market till the money was paid to him by the complainant but this restraint was not in order to seek bribe from the complainant but to ensure payment of money from the complainant, as per previous practice, like the CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 80 of 81 complainant had done in the previous month. So, the restraint on complainant from dumping the garbage was due to non-payment of money by complainant (its effect) and was not the cause for asking bribe from complainant.
9.2 Accordingly, the outcome is that the prosecution has not been able to successfully prove its case qua commission of offence punishable U/s 7 of the Prevention of Corruption Act 1988, beyond reasonable doubt against accused Harbir. The accused is given the benefit of doubt and he, is accordingly, acquitted from the aforesaid offence.
File be consigned to Record Room after due compliance.
Announced in open court ATUL Digitally signed by
ATUL KRISHNA
KRISHNA AGRAWAL
on 30.09.2024 Date: 2024.09.30
AGRAWAL 16:43:22 +0530
(Atul Krishna Agrawal)
Special Judge, CBI-19 (PC Act)
RADC/New Delhi/30.09.2024
Certified that this judgment contains 81 pages and each page bears my signatures, at the end. ATUL Digitally signed by ATUL KRISHNA KRISHNA AGRAWAL Date: 2024.09.30 AGRAWAL 16:43:31 +0530 (Atul Krishna Agrawal) Special Judge, CBI-19 (PC Act) RADC/New Delhi/30.09.2024 CBI Vs. Harbir Atul Krishna Agrawal RC No.DAI-2019-A-0028 Spl. Judge, CBI-19, RADC Date of Decision:30.09.2024 Page No. 81 of 81