Delhi District Court
C.B.I. vs . Rajender Kumar Gupta on 4 June, 2014
IN THE COURT OF DINESH KUMAR SHARMA
SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI
CC No.01/12
Unique Case ID No.02403R0176472009
C.B.I. Vs. Rajender Kumar Gupta
S/o. Sh. RP Gupta
R/o. 10/2, Jai Dev Park,
East Punjabi Bagh, New Delhi
RC No. : DAI2009A005
u/Ss : u/S.7 & u/S.13(2) r/w S.13(1)(d) of PC, Act 1988
Date of Institution : 30.06.2009
Received by transfer on : 06.03.2012
Arguments Concluded on : 12.05.2014
Date of Decision : 27.05.2014
Appearances:
Sh. S. Krishna Kumar, Ld. PP for CBI.
Sh. Jugal Wadhwa, Ld. Counsel for the accused.
JUDGMENT
1.0 Accused Rajender Kumar Gupta, Branch Manager, Bank of CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 1 of 78 Baroda, District Centre, Janak Puri Branch, New Delhi, has been tried for the offence u/S.7 and S.13(1)(d) r/w S.13(2) of The Prevention of Corruption Act, 1988 (in short "POC Act"), for having demanded bribe amount in the sum of Rs.2.50 lakhs and accepted Rs.1.50 lakhs from complainant Sh. Yogesh Talan, Managing Director of M/s. Startech Enggcon Pvt. Ltd.
FACTS 1.1 Briefly stated, the facts as alleged by the prosecution are that SME Loan Factory, Bank of Baroda, New Delhi vide letter No.SMEND/200809 dated 08.09.2008 sanctioned the bank guarantee (BG) limit of Rs.2.27 crores in favour of M/s. Startech Enggcon Pvt. Ltd. The BGs were to be released by Bank of Baroda, District Centre, Janak Puri Branch, New Delhi. Accused Rajender Kumar Gupta was posted as Branch Manager of this branch. The first BG in the sum of Rs.5.53 lacs was released on 28.11.2008 and second BG in the sum of Rs.24.77 lacs was released on 22.12.2008 after completion of all the formalities. However, accused demanded bribe on both the occasions and directed the complainant to pay the bribe amount at the time of issue of third BG. The complainant requested the accused to release the third BG for an amount of Rs.88.61 lacs in favour of M/s. Reliance Infrastructure Ltd. However, accused refused to issue the BG unless the bribe is paid. Accused vide letter dated 10.01.09 Ex.PW2/D14 to CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 2 of 78 AGM, Bank of Baroda informed about the request to issue another BG for Rs. 88.61 lacs. It was further informed that all other terms and conditions of the sanction have been fully complied except carrying out the site visit in Madhya Pradesh. Accused further informed that though site visit has already been arranged by Anpara Branch in UP, who had given the satisfactory report in the progress of the contractual work by the complainant but yet he would visit the place of contract any time in the next week latest by 17.01.2009. Accused sought permission to issue the BG in the sum of Rs.88.61 lacs. Vide an endorsement the accused was authorized to issue a BG with instructions to carry out inspection immediately and in any case before 17.01.2009. The perusal of the endorsement would indicate that accused himself had informed the Regional Office that BG shall be handed over to beneficiary only after site visit. However, despite this accused handed over the BG to the complainant on 17.01.2009 with a stipulation that it be not handed over to the beneficiary till the bribe amount is paid. Accused also threatened that he would not sent confirmation to the Reliance and will inform them that the BG had been stolen from the bank and a FIR would be lodged in this regard. The complainant was in desperate need of BG for handing over the same to RIL, thus, he submitted the BG to the Reliance Office. The accused persisted with demand of bribe, upon which the complainant filed a written complaint with CBI on 19.01.2009, Ex.PW3/C wherein he alleged that upon sanctioning of CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 3 of 78 BG of Rs.2.27 crores, the accused had already released 03 BG's and for releasing the BG for the remaining amount, the accused has demanded a bribe of Rs.2.50 lacs for the three BG's already released with a threat that if bribe is not paid, the BG's which have been released would be canceled and a FIR would be lodged for having lost the three BG's. The complaint was marked to PW18 Insp. NVN Krishnan for verification. Independent witness PW7 Moti Lal was joined and a digital recorder after ensuring its emptiness was handed over to the complainant. While on the way to bank, the complainant received repeated calls from the accused demanding bribe.The complainant stated that the accused being a shrewd person will not entertain if he is accompanied by the stranger. During verification proceedings, the complainant went alongwith accused in his vehicle at around 5:30 pm for the office of M/s. Reliance Infrastructure Ltd., beneficiary of third BG at Noida for the purpose of taking it back at the persistent demand of accused. During the journey, the conversation between the accused and the complainant revealed demand of bribe. The accused and the complainant terminated their journey half way as the concerned person Sh. Rajat Mehndiratta (PW4) informed that he would not be available. The complainant informed that accused wanted to inspect the site on 20.01.2009. He further informed that he would require at least two days to mobilize the demanded bribe amount. The verification memo Ex.PW3/D was prepared and the matter rested till 28.01.2009 when the CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 4 of 78 complainant visited CBI office and in his presence, the transcription cum voice identification memo of the conversation recorded on 19.01.2009, Ex.PW3/B was prepared. The recorded conversation in the digital recorder dated 19.01.2009 was transferred to a blank CD (Q1). CBI also registered a case bearing RC No.DAI2009A005, Ex.PW3/E. After registration of the case, a trap team was constituted comprising of independent witnesses PW7 Moti Lal, PW8 Harish Kumar Rajpal and CBI officials. PW8 Harish Kumar Rajpal was appointed as shadow witness. The meeting between the accused and the complainant for the transaction of bribe was fixed for 29.01.2009. The trap team reassembled at CBI office on 29.01.2009. The complainant brought Rs.1.50 lacs as trap money. The money was treated with phenolphthalein powder and a detailed handing over memo Ex.PW3/F was prepared. Thereafter, the trap team reached District Centre, Janak Puri at about 11:55 hrs and the complainant contacted the accused from his mobile No.9312037565 on to mobile phone of accused 9350716668 to inform that money has been arranged. After around 5 minutes, accused called the complainant from his office landline No. 25593313 and informed the complainant that he was preoccupied with work and would contact him as soon as possible. At about 1 pm, accused again contacted the complainant from the above said landline number on the mobile phone of the complainant and directed him to come at parking site towards CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 5 of 78 Najafgarh Road. The trap team took suitable positions. After sometime, accused reached the spot in his car and gestured the complainant to get inside after opening the front left side door of the car. Inside the car of the accused, the accused was seen extending his left hand on which the complainant took out the envelope containing the bribe amount and extended towards the accused, which the accused received by his both hands. The complainant came out of the car and gave a preappointed signal by scratching his head and while the accused was keeping the envelope on the front left side seat of his car. The trap team rushed towards the car and after introducing themselves caught hold of accused through his wrists. Initially, the accused kept mum, however, later on, admitted his guilt for having demanding and accepting the bribe. Left hand wash and right hand wash of the accused were taken. PW7 Moti Lal was directed to recover the envelope containing bribe amount and after taking out the bribe amount, the numbers of the GC notes were tallied with the handing over memo and were found to be the same. The wash of car seat cover from where the white envelope containing tainted GC notes was recovered, was taken. The conversation recorded in the digital recorder was transferred into a blank CD (Q2). Another copy was also prepared for the purpose of investigation. The specimen voice of accused was also recorded and CD (S1) was prepared. The detailed recovery memo Ex.PW3/G and rough site plan Ex.PW18/D were prepared. It is pertinent to CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 6 of 78 mention here that the beneficiary of the third BG, RIL wrote a letter dated 20.01.2009 to Bank of Baroda for seeking confirmation of the BG issued on 10.01.2009 and this letter was recovered from the office of accused on 29.01.2009.
Investigation revealed that accused demanded and accepted the bribe from the complainant, which was also duly recovered.After investigation, charge sheet u/S.7 and S.13(1)(d) r/w S.13(2) of POC Act, 1988 was filed.
CHARGE 2.0 Upon taking of the cognizance and supply of copies, being a prima facie case, charge u/S.7 and S.13(1)(d) r/w S.13(2) of POC Act, 1988 was framed against the accused on 03.04.2010, to which accused abjured his guilt and claimed trial.
EVIDENCE 3.0 Prosecution examined 19 witnesses in support of its case. The star witness in this case is PW3 Sh. Yogesh Talan (Complainant). He made a detailed statement reaffirming the demand of bribe by accused at several instances against release of BGs as well as the threat extended by him for this. The complainant also deposed in detail on oath regarding the acceptance of CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 7 of 78 bribe by the accused.
3.1 The independent witnesses have been examined as PW7 Moti Lal and PW8 Harish Kumar Rajpal. Both the witnesses made consistent and corroborative statement on oath. The depositions made by them were natural and cross examination did not bring anything material against the prosecution.
3.2 The prosecution examined bank officials, PW2 Sandeep Chopra regarding procedure of issue of Bank Guarantee, PW12 Sh. SK Gupta, who took over from the accused after the trap, PW13 Sh. Kishore the then AGM in SME Loan Factory, Bank of Baroda regarding sanction of the loan proposal. PW14 Sh. Rajeev Lochan who proved the BG's and PW17 Sh. Shripal, Branch Manager, Bank of Baroda who proved the documents regarding predisbursement inspection report regarding M/s. Star Tech Engineering Pvt. Ltd., letter dated 27.10.2008 written by Branch Manager i.e. accused RK Gupta, terms and conditions of sanction of the bank guarantee and work order of Shashank Power Ltd.
3.3 Sanction u/S.19 has been proved by PW1 Kishore Chander CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 8 of 78 Pati. The witness made a detailed statement on oath that the competent person accorded the sanction after due application of mind. The defense cross examined the witness regarding competence of the authority, who granted the sanction as well on the nonapplication of mind.
3.4 Sh. Rajat Mehndiratta and Sh. Rajive from Reliance Infrastructure Ltd. i.e. beneficiary of the third BG have been examined as PW4 and PW5. PW 4 deposed in detail regarding submission of BG by the complainant as well a communication dated 20/01/2009 sent by them to the bank for confirmation. The witness also deposed that he received 2/3 calls of Mr. Gupta from bank for return of the BG.
3.5 In the category of expert witnesses, the prosecution examined PW5 Dr. Rajinder Singh and PW16 Dr. NM Hashmi, who respectively proved the report regarding recording and hand washes. PW5 Dr. Rajinder Singh examined the questioned voice of accused Rajender Kumar Gupta with his specimen voice by their linguistics and other spectrographic parameters and proved his report Ex.PW5/A. PW16 Dr. N.M Hashmi proved his report Ex.PW16/A as per which on examination of chemical test, the presence of phenolphthalein and sodium carbonate was found in CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 9 of 78 all the exhibits.
3.6 In respect of the call details record, the prosecution has examined PW6 Sh. Raj Kumar, Nodal Officer from Reliance and PW11 Sh. Rajneesh Mohindra from MTNL. PW6 proved the call details record of mobile number 9312037565 and 9350716668 as Ex.PW6/B (colly) and Ex.PW6/C (Colly.), respectively. He also proved the application forms of respective mobile numbers as Ex.PW6/D and Ex.PW6/E, respectively. Similarly, PW11 proved the record relating to telephone No.25593313, Ex.PW11/B, installed in the name of Bank of Baroda, Ground Floor, Jeevan Pravah, District Centre, Janak Puri.
3.7 PW10 Sh. Ajay Bhandari was working as Field Officer in the company of the complainant i.e. M/s. Startech Enggcon Pvt. Ltd. and he had handed over certain documents to CBI.
3.8 The prosecution has also examined PW9 SI Rohit Kumar member of the trap team, PW18 Insp. NVN Krishnan (TLO) and PW19 Inspl Kailash Sahu (IO).
CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 10 of 78
PW9 SI Rohit Kumar, member of the raiding party deposed that on 19.01.2009 PW18 Insp. NVN Krishnan informed him to assist him in a trap alongwith PW7 Moti Lal. Thereafter, complaint dated 19.01.2009 was shown to both of them. The witness stated that after explaining complaint, a digital voice recorder SONY make was arranged and after explaining the functioning of the said recorder, the formal voice of witness Moti Lal was recorded. Thereafter, the CBI team left for the spot at Janak Puri at 15.4550 hrs in complainant's vehicle. The CBI team reached the spot at 16.25 hrs. As the complainant informed that the suspect officer will neither entertain nor speak about the same in front of anyone, then it was decided not to send the independent witness alongwith the complainant. The DVR was switched on and handed over to the complainant who kept the same in his left side shirt pocket and proceeded to the bank. The witness further stated that he himself, Inspt. NVN Krishnan and independent witness Moti Lal took suitable positions in the passage from where both the complainant and the suspect official were visible. After about half an hour, the complainant came out and gestured them to wait. At about 17.30 hrs. the complainant and the suspect officer came out of the bank and went towards the car parking where they boarded a Maruti 800 which was of suspect officer RK Gupta. Before boarding the car, the complainant gestured his driver to follow them. The CBI team and independent witness got in the vehicle of the complainant and CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 11 of 78 discretely followed the Maruti 800. After reaching the petrol pump situated opposite Hyatt Hotel, the complainant got down and went towards the rear side of the petrol pump. In the meantime, a call was received from complainant's mobile no. on to his driver's mobile. The complainant informed to follow him. The witness further stated that they immediately rushed to the rear side of the Petrol Pump. The complainant handedover the DVR in switched off condition and informed that the demand has been recorded. The CBI team waited for the complainant in his vehicle. At about 19.30 hrs. the complainant was seen getting down from an auto rickshaw. On joining the CBI team, the complainant informed that the suspect officer had demanded the bribe of 2.5 lacs and that on 20th January, he had to go to Madhya Pradesh for site inspection. The complainant also informed the CBI team that he needed at least 23 days for mobilising the said amount. On the request of the complainant, further proceedings were not carried out and proceedings concluded at 22.00 hrs. PW9 stated that the DVR was kept by Inspt. NVN Krishnan. The witness further stated that on 28.01.2009, the complainant came to CBI office and in the presence of PW7 Moti Lal the DVR was played and transcription cum voice identification memo was prepared and the said recording was also transferred into a blank CD (Q1). Thereafter, case was registered. PW9 stated that trap team was constituted by PW18 Insp. NVN Krishnan and another independent witness Sh. Harish Rajpal was also joined. CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 12 of 78 PW9 proved the pre trap proceedings conducted in CBI office. The complainant was directed to make a call from his mobile phone on to the mobile phone of accused RK Gupta. In the said telephonic conversation, the accused RK Gupta directed the complainant to come at 11 O'clock on 29.01.2009. On 29.01.09, the complainant produced Rs. 1.5 lacs in the form of 80 GC notes of Rs. 1000/, 100 GC notes of Rs. 500/ and 200 GC notes of Rs. 100/ as part of the bribe amount, the numbers of the said currency notes were noted down, demonstration of phenolphthalein powder and sodium carbonate and its reaction was given. The phenolphthalein powder was smeared on all the notes. The said notes were kept in white envelop and the phenolphthalein powder was smeared on white envelope also with the directions to hand it over to the accused on a specific demand. PW9 explained the functioning of the DVR and the said recorder was handedover to the complainant who kept the same in his left side blazer pocket with the direction to switch on the same before contacting the accused. Thereafter, the CBI team reached the spot at 11.55 hrs. The complainant was instructed to make a call from his mobile on to the mobile phone of accused. The accused informed that he will get back in 5 minutes. The said telephonic conversation was also recorded in DVR. After about 5 min., a call was received on to the complainant's mobile no. from a landline number. The accused informed that he is busy and will get back to him later. At about 13.00 hrs. a call was CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 13 of 78 received from the accused on to the mobile of the complainant who directed him to come to the parking on Nazafgarh Road. Thereafter, CBI team alongwith independent witnesses and the complainant immediately rushed to the spot. The complainant and witness Harish Rajpal stood nearby to each other. After few minutes, the accused came to the spot where the complainant was standing in Maruti 800 car. The accused opened the left side front door and gestured the complainant to sit outside. After a while, the accused was seen extending his left hand towards the complainant. Thereupon, the complainant took out white envelop and extended towards the accused which he received by both of his hands. The complainant got off the car and gave the predecided signal by scratching his head with the mobile phone. Immediately, CBI team rushed towards the car and caught hold of both the hands of the accused. As a huge gathering had assembled, it was decided to go a bit ahead into the parking. On reaching the parking, the hand washes of the accused were taken. PW7 Moti Lal was directed to recover the bribe amount from the current car seat, number of the same were tallied with the handing over memo and were found to be same. Thereafter, the CBI team came to the office of the complainant to carry out the remaining proceedings. In the cross examination, PW9 denied the suggestion that the introductory voice of PW7 Moti Lal was not recorded in DVR either in his presence or otherwise. Witness also denied the suggestion that the complaint was CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 14 of 78 produced by the complainant on that day nor was it shown to the witness and no proceedings were conducted in the CBI office on the said date. The witness was also confronted with his statement recorded u/S.161 Cr.P.C. on various aspects. The witness was cross examined at length by the defence. However, the lengthy cross examination could not shatter the evidence of the witness.
PW18 Insp. NVN Krishnan, Trap Laying Officer formally proved the trap proceedings conducted by him. PW18 stated that after the complaint Ex.PW3/C was endorsed to him by the then SP, a trap team was constituted including two independent witnesses namely PW7 Moti Lal and PW8 Harish Rajpal. PW18 also proved the proceedings conducted on 19.01.2009 and 29.01.2009. In the cross examination, no material came out which could shatter the case of the CBI.
PW19 Insp. Kailash Sahu (IO), conducted the further investigation of the case after received the same from TLO PW18 Insp. NVN Krishnan on 11.02.2009. He prepared the transcription of CD (Q2), Ex.PW3/J and proved the transcription cum voice identification memo dated 17.04.2009 as Ex.PW19/A. He seized various documents from the complainant, Bank of Baroda, Janak Puri Branch and Reliance Infrastructure Ltd. He also collected the information from MTNL and Reliance Telecommunication Ltd. He forwarded the exhibits of the case to CFSL for examination and collected the CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 15 of 78 report from Chemistry Division of CFSL and Physics Division of CFSL, Ex.PW16/A and Ex.PW5/A, respectively. He formally proved the investigation conducted by him. In the cross examination, PW19 stated that on 04.04.09, only the complainant had come and the transcription was prepared on that day with his assistance and the independent witness came on 17.04.2009 and he took his assistance for confirmation of the same transcription. The witness denied the suggestion that independent witnesses never confirmed the aspect of demand and acceptance of bribe. However, PW19 admitted that no car search memo was filed on the record. STATEMENT OF ACCUSED 4.0 In his statement u/S.313 Cr.P.C., accused stated that the sanction granted for prosecution is illegal and bad in law. The accused further stated that the full fledged credit department was operational in the branch for issuing bank guarantee and therefore, it was not his job at all. Accused denied to have demanded any bribe at the time when the first BG was released. Accused stated that the same was issued by PW2 Sandeep Chopra directly. In respect of 2nd BG also, accused stated that the complainant had approached the credit department for the said purpose and did not meet him for taking Bank guarantee. Accused denied that he told the complainant that he would have to spend 23% and the complainant should have no concern that how and CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 16 of 78 in what manner this money would be spent. Accused stated that the complainant was directly in contact with credit department and PW2 Sh. Sandeep Chopra, Head of the Department was directly dealing with him and there was no question for him to tell all this. Accused admitted that the Regional Office informed the branch that the third BG can be issued but it shall be delivered to the beneficiary only after site visit by the Branch Head. Accused specifically denied the he handed over the third BG to the complainant on 17.01.2009 and thereafter, demanded bribe of Rs.2.5 lakhs. Accused stated that PW2 had brought the original BG, Ex.P2 to show it to the complainant on his instructions and took it back. Accused denied that he told the complainant to not to submit the BG with Reliance. However, he admitted that the complainant was told to arrange the site visit on 19.01.2009. Accused stated that the complainant removed the BG illegally. Accused stated that letter dated 20.01.2009 from Reliance Infrastructure Ltd. for confirmation of BG was received by the Branch on 29.01.2009. Accused admitted that he had called PW4 Sh. Rajat Mehndiratta on 19.01.2009 stating that vendor had unauthorizedly submitted the bank guarantee violating the preconditions. Accused refused to have made any call on 18.01.2009 regarding demand of bribe. Accused stated that BG was taken by the complainant before site visit in violation of the instructions of regional office and he i.e. complainant was also delaying the site inspection. Accused denied to have traveled with the CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 17 of 78 complainant on 19.01.2009 and also denied that he told the complainant to accompany him to the office of Reliance to take the BG back. Accused stated that this entire story has been concocted by the complainant. Accused stated that he went to the site on 20.01.2009 alongwith complainant and returned back on 21.01.2009. Accused stated that the transcript Ex.PW3/A of CD (Q1), Ex.PY1 is not a true transcription of the conversation. Accused further stated in his statement that after the site visit on 21.01.2009 neither the complainant nor he called each other. The complainant first time called him on 28.01.2009 and informed that he had got stuck at the site and discussed about the documents pertaining to site visit and regretted for the delay and assured to deliver them on 29.01.2009.
In respect of telephone call made by the complainant on 29.01.2009, the accused stated that he rang up to talk about his availability to deliver the documents. In respect of the telephone call made by him to the complainant on 29.01.2009, the accused stated that he talked for 220 seconds about the documents relating to site inspection on 21.01.09 and about meeting point of its delivery. Accused stated that as he was in a hurry to attend a family function, he agreed to meet the complainant on 29.01.2009 at the parking lot of District Centre at Najafgarh Road to collect the documents. Accused stated that there was no demand of money and the complainant had come to deliver the documents. It was stated that the complainant only gave CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 18 of 78 him an envelope containing documents of site inspection. Accused stated that he is innocent and has been implicated falsely. Accused stated that the conversation has been tampered with and certain words in the voice of the complainant has been added in the voice of the complainant subsequently. The prosecution has also concealed certain conversation between him and the accused.
Accused also challenged the CFSL report. Accused stated that the complainant was inimical towards him because he i.e. accused was not acting to the whims and fancies of the complainant. The complainant was also fearful as he had illegally removed the third bank guarantee without the consent of the bank authorities before the site visit by the Branch Head. The independent witnesses agreed to depose for CBI being public servants and CBI officials have deposed being interested in the success of their case. Accused also stated that the complainant is a person of perverse mentality who has implicated several people in the similar fashion. The complainant had earlier falsely implicated Vice Chancellor and Registrar of Awadh University under PC Act, and the proceedings against them were quashed by the High court of Allahabad vide order dated 13.01.2011 in Cri. Misc. Case No. 1781/2007. Accused also stated that he has been implicated falsely and money has also been planted falsely. Accused stated that he has an immaculate service record as an officer of Bank and had won several awards. CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 19 of 78 DEFENCE EVIDENCE 5.0 Accused examined two witnesses in his defence.
5.1 DW1 Rajeev Sharda, Nodal Officer from Reliance Communication Ltd. DW1 produced the call details record of mobile No. 9312037565 of complainant and 9350716668 of accused for the period 10.01.2009 to 30.01.2009 as Ex.DW1/A and Ex.DW1/B. The defence witness stated that the call details record reflected physical location of the mobile when any call is made or received from the said phone.
DW2 Vijay Kumar Grover, Sr. Manager, Bank Of Baroda proved the certified copy of lease deed so as to prove that the branch is located at ground floor + upper ground floor. Witness stated that branch has always operated from ground floor since the inception and there is no part or branch / section situated on any other floor except ground floor and upper ground floor.
ARGUMENTS 6.0 Sh. S. Krishna Kumar, Ld. PP for CBI submitted that the prosecution has successfully proved its case against the accused beyond reasonable doubt. Ld. PP submitted that after sanction of the BG by SME CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 20 of 78 department, the disbursal being with the branch, there was direct relation between the complainant and the accused, being the Manager of the Branch. The accused started demanding bribe since inception and later on the demand turned into threat. Initially, two BGs were released without any difficulty, however thereafter, the accused started openly demanding the bribe and extending threats to the complainant. Sh. S. Krishna Kumar, Ld. PP submitted that the complainant has duly supported the case of the prosecution. The complainant has made a detailed statement regarding the demand and acceptance of bribe. This has also been corroborated by the testimony of PW7 Moti Lal and PW8 Harish Kumar Rajpal. The prosecution has also successfully proved the corroborative evidence in the form of PW5 Dr. Rajinder Singh and PW16 Dr. NM Hashmi. Ld. PP submitted that PW7 Moti Lal and PW8 Harish Rajpal who are independent witnesses have deposed in a natural way and the variations which have come in their testimony reflect that they are not tutored or planted witnesses. These witnesses have given truthful account of the entire transaction. It was submitted that PW9 SI Rohit Kumar, member of the trap team has also duly proved the transaction of bribe. Ld. PP submitted that there was no reason for the independent witnesses to speak lie. 6.1 Sh. Jugal Wadhwa, Ld. Counsel for the accused submitted that the prosecution has made a false and frivolous case. The prosecution CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 21 of 78 witnesses have made inherent contradictory statements and on account of such contradictions, their testimony cannot be believed. There was no motive or reason for the accused to demand bribe as BG once issued cannot be canceled. The highlight of the case is that the accused has not disputed the fact that on 29.01.2009 the envelope was handed over by the complainant to accused. The dispute revolves around the circumstances in which the said envelope was handed over and the contents of the envelope. The plea of the prosecution is that this envelope contained the bribe amount, whereas, the plea of the defence is that this envelope was containing certain documents relating to site inspection. Ld. counsel submitted that the prosecution has miserably failed to prove the sanction accorded against the accused. He submitted that sanction is not merely a formality as it directly effects on liberty of an individual and therefore, has a sacrosanct effect. Ld. counsel submitted that testimony of PW1 shows sanctioning authority in the present case merely delegated an authority to grant sanction, which is not permissible in the law. Ld. counsel submitted that authority to grant sanction could not have been delegated and therefore, sanction accorded in this case is invalid. As well there was no application of mind as appear from the testimony of the witness itself. Ld. Defence counsel submitted that PW1 himself deposed on oath that he put up the request alongwith material received from CBI before Late Sh. Dipanker Mukherjee the then General Manager (HR). Late Sh. CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 22 of 78 Dipanker Mukherjee after going through the record asked PW1 to prepare the order of sanction on which Sh. Dipanker Mukherjee put his signatures. Ld. Defence counsel further submitted that if sanction Ex.PW1/C is compared with the report u/S.173 Cr.P.C., one would find that the same are verbatim and identical. Ld. Defence counsel submitted that the complainant did not approach the bank for issuance of any BG after arrest of the accused which shows that the sole purpose of the complainant was to falsely implicate the accused. Ld. Counsel submitted that CBI has failed to follow their own instructions and guidelines as contained in documents Ex.PW18/DA and therefore, investigation in this case at the outset is faulty and is liable to be rejected outrightly. Ld. Defence counsel submitted that the accused herein was admittedly a Middle Management Grade in Bank of Baroda which is a nationalized bank and therefore, Joint Director and Special Inspector General of Police were authorized to take any decision regarding the registration of the case. However, in this case, no such permission was taken by the IO and therefore, the case of the prosecution is liable to be rejected. Sh. Jugal Wadhwa, Ld. counsel submitted that if the statement of the complainant in court is read as a whole, it would be clear that he had made substantial improvements regarding demand of bribe. The complainant in his complaint, Ex.PW3/C has only stated demand of bribe after three BGs were released whereas, in his testimony the complainant had stated that accused had CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 23 of 78 demanded bribe at every instance. Ld. Defence counsel pointed out that the accused during the cross examination on 20.07.2011 admitted that he had not mentioned in his complaint, Ex.PW3/C regarding demand of bribe by the accused at the time when the first BG was issued. The complainant was confronted with the allegation of demand of bribe at the time of issuance of second BG. These facts were also not mentioned in the complaint Ex.PW3/C or statements recorded u/S.161 Cr.P.C., Ex.PW3/DA and DB.
Sh. Jugal Wadhwa, Ld. counsel submitted that verification memo dated 19.01.2009 is a fabricated document. It has been submitted that PW7 Moti Lal in his testimony made before this court on 19.04.2012 stated that when he reached the CBI office, there was one SI namely Rohit Kumar (PW9) who was hearing conversation which was between SI Rohit Kumar and Rajender Kumar Gupta and on the other hand, between Rohit Kumar and Yogesh Talan. Ld. Defence counsel submitted that this shows that the verification memo Ex.PW3/D which prosecution has claimed to have been prepared on 19.01.2009 at around 10pm, is false and frivolous. It has also been submitted that as per location of complainant in CDR proved as Ex.DW1/A, he was no where close to the office of CBI at the relevant time which also indicates that the verification memo Ex.PW3/D is anti dated and anti time. It was also submitted that the conversation recorded in cassette Q1 is a fabricated document. Ld. Defence counsel invited the attention of the court CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 24 of 78 towards the testimony of PW18 Insp. NVN Krishnan (TLO) and stated that his testimony is full of contradictions. The attention of the court was drawn towards the cross examination conducted on 05.08.2013 wherein the TLO stated that the complainant was with him approximately between 1430 hrs to 1530 hrs in CBI office on 19.01.2009. Even TLO stated that he had no knowledge whether the CDR of mobile of the complainant (9312037565) is a relied upon document or not. Sh. Jugal Wadhwa, Ld. counsel submitted that infact no verification as claimed to have been conducted by the CBI on 19.01.2009 were conducted and verification memo Ex.PW3/D was prepared in the morning itself on 19.01.2009. Sh. Jugal Wadhwa, Ld. counsel also seriously challenged the bonafide of CBI on the point of selective recording of telephonic conversation between accused and the complainant with an ulterior motive. Even TLO Insp. NVN Krishnan and other witnesses have admitted that the phone calls which the complainant received from the accused during the process of verification and subsequently on 28.01.2009 and 29.01.2009 were not recorded. Ld. Defence counsel submitted that CBI has taken a false plea that the telephone calls being received from landline number 25593313 of the accused branch could not be recorded as complainant could not identify the number of the accused. It was submitted that the duration of the calls itself falsify this plea of the prosecution as these calls were of sufficiently long duration and particularly in view of the fact that CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 25 of 78 there were repeated calls and therefore, it does not appeal to the reason that the complainant or TLO would not be able to identify the telephone number of the accused. Sh. Jugal Wadhwa, Ld. defence counsel submitted that infact the entire conversation was available with CBI but they withheld this as it did not favour the case of the prosecution.
Sh. Jugal Wadhwa, Ld. counsel for accused challenged the testimony of PW3 Sh. Yogesh Talan and submitted that PW3 is a false witness. His statement cannot be relied upon. The complainant made a false and frivolous statement against the accused, as the accused refused to go by the whims and fancies of the complainant. Sh. Jugal Wadhwa, Ld. counsel pointed out that in the cross examination conducted on 21.02.2012, the complainant was confronted with the CDR which reflected that he had made two calls to the accused on 18.01.2009 at 8:11 pm and 09.35 pm having time duration of 607.8 seconds and 245 seconds, respectively. Ld. Defence counsel submitted that there were as many as 14 calls on 18.01.2009 between the accused and complainant. However, the complainant did not mention this in his complaint. This fact of concealment in his complaint makes him totally unreliable and untrustworthy. In his complaint Ex.PW3/C, the complainant has not made any allegation of any demand being raised by the accused on 18.01.2009. It was submitted that if a person had demanded a bribe then it would not appeal to the reason that during such long conversation, there CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 26 of 78 would be no mention regarding such demand. Ld. Defence counsel pointed out that during the cross examination on 21.02.2012, the complainant had duly admitted that CBI had not recorded any of the phone calls between him and accused on 19.01.2009. In this regard, Ld. Defence counsel also pointed out that PW18 Insp. NVN Krishnan also in his testimony recorded on 01.08.2013 did not state anything about recording of telephonic conversation between accused and the complainant. It was submitted that PW18 Insp. NVN Krishnan in his cross examination conducted on 04.09.2013 admitted that he did not remember the route which was followed by them by which they reached Janak Puri from CBI office. Ld. Defence counsel submitted that infact TLO did not visit the branch on 19.01.2009. Ld. Defence counsel submitted that the prosecution case is that the complainant joined back the CBI team at 7:30 pm on 19.01.2009 whereas as per Ex.DW1/A the location was entirely different.
Sh. Wadhwa, Ld. counsel submitted that as per the case of the prosecution itself, the DVR remained with the TLO from 19.01.2009 to 28.01.2009 and the same was neither kept in malkhana nor it was handed over to any senior officer. The DVR was also not even sealed or seized. This has been admitted by the TLO in his cross examination conducted on 10.10.2013. Insp. NVN Krishnan admitted that DVR was neither sealed by him or by any other CBI official either on 19.01.2009 or on any other date in between till CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 27 of 78 28.01.2009. PW18 also admitted that during this period, the DVR remained in his possession.
Ld. defence counsel submitted that the transcript Ex.PW3/A is not true account of the conversation recorded in the same. The attention was drawn to the statement of PW3 Sh. Yogesh Talan recorded on 09.03.2011 wherein the court has observed that there was no transcript of file No. 090118_01 and 02 and the transcript Ex.PW3/A is part of file No.090118_03. It was further observed by the court that this file is of 34.20 minutes duration whereas the transcript is from 21.02 minutes onwards. In this regard, the attention was also invited to the cross examination of PW18 recorded on 10.10.2013 wherein TLO admitted that he cannot say whether the entire conversation from DVR relating to 19.01.2009 was transcripted in Ex.PW3/A or not. Ld. Defence counsel pointed out several contradictions appearing in the testimony of the complainant. It is worth to mention here that Ld. Defence counsel conducted a very detailed cross examination of the complainant and other witnesses and during arguments also he painstakingly took the court to such entire cross examination.
Ld. Defence counsel submitted that the case of the prosecution also stands falsify on account of the fact that after 19.01.2009 the complainant remained silent till 28.01.2009 and the reason behind this was that he got the site inspection conducted from the accused and since accused did not agree to CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 28 of 78 his illegal demand, he got the case revived and implicated him falsely on 29.01.2009. Ld. Defence counsel submitted that it is a matter of record that till 28.01.2009 accused did not call the complainant even once. Sh. Jugal Wadhwa, Ld. counsel submitted that rather as per CDR Ex.DW1/A the complainant made a call to accused on 28.01.2009 which was of 3 minutes 20 seconds duration. It was submitted that even this call was not recorded by the CBI which shows its malafide. Ld. defence counsel submitted that the complainant in his testimony on 25.04.2011 only stated about a white colour envelope which was smeared with phenolphthalein powder. However, the envelope which was seized was containing all details of the complainant's company. Sh. Jugal Wadhwa, Ld. Counsel also submitted that PW7 Moti Lal recovery witness has not stated anything regarding the demonstration of phenolphthalein powder, handing over memo or pretrap proceedings. Similarly, PW8 Harish Rajpal in his testimony also has not deposed anything regarding pretrap proceedings. It has been submitted that there are glaring contradictions in the testimonies of PW3 Yogesh Talan, complainant, PW7 Moti Lal, recovery witness and PW8 Harish Rajpal, shadow witness regarding the pretrap proceedings. It has been submitted that though PW3 Yogesh Talan in his statement recorded on 25.04.2011 stated that the introductory voice of independent witnesses were recorded. However, the independent witnesses PW7 Moti Lal and PW8 Harish Rajpal did not say anything on this. CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 29 of 78 Ld. Defence counsel submitted that car search memo which is a material piece of evidence has neither been produced nor proved and there is no explanation forthcoming that why it has not been produced. It has been submitted that car search memo was withheld by the prosecution. Ld. Defence counsel submitted that in CD (Q2) regarding conversation dated 29.01.2009 there is reference of 03 calls but recording of only one call has been produced. It has been submitted that the calls made between accused and the complainant on 29.01.2009 were very material piece of evidence and the prosecution has intentionally withheld the same. Similarly, the third call has not been completely recorded. It was submitted that PW3 and PW18, both have admitted that there was no mention of demand in the recording on 29.01.2009. However, both the witnesses tried to cover up the same by saying that demand was by way of gesture. Ld. Defence counsel submitted that the envelope which was allegedly recovered from the accused was not seized or sealed.
Sh. Jugal Wadhwa, Ld. counsel for accused also filed detailed written synopsis on the various points. It was submitted that the prosecution has miserably failed to prove its case. Ld. Defence counsel has also cited the following judgments in support of his contentions :
1) Mansukhlal Vithalda Chauhan Vs. State of Gujarat, AIR 1997 SC 3400 CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 30 of 78
2) S ailendranath Bose vs. State of Bihar, AIR SC 1292 (V 55 C248)
3) Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh (1979) 4 SCC 172
4) Om Prakash Vs. State of Ors., 2009 (2) JCC 1210
5) Anirudhsinji Karansinhji Vs. State of Gujarat, AIR 1995 SC 2390
6) Manpreet Singh and Anr. Vs. State, 2004 (1) CC Cases (HC) 74
7) Radha Kishan Vs. State 87 (2000) DLT 106
8) State Vs. Ravi alias Munna, 2000 Cri. L.J. 1125
9) Ram Singh and Others Vs. Col. Ram Singh, AIR 1986 SC 3
10) Prashant Bharti Vs. State of NCT of Delhi, (2013) CCR 453 (SC)
11) Man Singh Vs. Delhi Administration, AIR 1970 SC 1455
12) A Subair Vs. State of Kerala, 2009 Cri.L.J. 3450
13) Meena (Smt.) W/o Balwant Hemke Vs. State of Maharashtra (2000) 5 SCC 21.
14)Suraj Mal Vs. The State (Delhi Administration) ILR (1974) 2 Delhi 400
15)Subash Parbat Sonvane Vs. Sate of Gujarat, AIR 2003 SC 2169
16)State (Govt. of NCT of Delhi) Vs. Girdharilal Verma, 2011 (3) CC Cases (HC) 17.
17)T. Subramanian Vs. State of Tamil Nadu, AIR 2006 SC 836.
18)Khilli Ram Vs. State of Rajasthan, AIR 1985 SC 79.
19)Vikramjit Singh Alias Vicky Vs. State of Punjab (2006) 12 SCC 306.
20)CM Girish Babu Vs. CBI, Cochin, High court of Kerala, (2009) 3 SCC 779.
21)G.V. Nanjundiah Vs. State (Delhi Administration), AIR 1987 SC 2402
22)Subhash Chand Chauhan Vs. CBI, 117 (2005) DLT 187
23)Panchan Rout Vs. State of Orissa, 1191 Cri.L.J. 2442
24)LK Jain Vs. State Through CBI, 124 (2005) DLT 371
25)State Vs. Kuldeep Kumar, 2011 (3) JCC 1924 CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 31 of 78
26)Prem Singh Yadav Vs. CBI, 178 (2011) DLT 529
27)PK Gupta Vs. CBI, 181 (2011) DLT 706
28)Sunil Kumar Sharma Vs. State (CBI) 139 (2007) DLT 407
29)Mehar Singh Vs. State of Himachal Pradesh, 2011 Cri.L.J. 499
30)Mehar Chand Vs. State of Haryana, 2004 (3) CC Cases (HC) 261.
FINDINGS 7.0 Accused Rajender Kumar Gupta the then Branch Manager, Bank of Baroda, Janak Puri Branch, has been tried for the offence under Section 7 and Section 13(1)(d) r/w S.13(2) of POC Act, 1988 for having demanded and accepted the bribe from PW3 Sh. Yogesh Talan for having released the BG.
Before proceeding further, it may be useful to see the ingredients of Section 7 and Section 13(1)(d) r/w S.13(2) of POC Act, 1988 which reads as under :
The essential ingredients of Section 7 are:
i) that the person accepting the gratification should be a public servant;
ii) that he should accept the gratification for himself and the gratification should be 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 function, favour or disfavour to any person.
The essential ingredients of Section 13(1) (d) of the Act are:
(i) that he should have been a public servant;CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 32 of 78
(ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant; and
(iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.
7.1 In the present case, there is no dispute that the accused was a public servant at the relevant time. The question for determination would be that whether accused had demanded and accepted the illegal gratification for showing favour to the complainant in exercise of his official function or that he has used illegal means or otherwise abused his position as such public servant or obtained valuable thing or pecuniary advantage.
The bare perusal of S.7 and S.13(1)(d) r/w S.13(2) of POC Act would indicate that there is a material difference between two. It is also pertinent to mention here that Section 20 of the POC Act also provides presumption in regard to an offence punishable u/S.7, 11 or clause (a) or (b) of subsection (1) of Section 13.
Section 20 provides that if an accused person has accepted or obtained or has agreed to accept any gratification other than legal remuneration it shall be presumed that accused has accepted such gratification for a motive or reward. However, such presumption is rebuttable CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 33 of 78 and the onus would be on the accused to rebut this presumption. It may be mentioned that onus on the accused is not heavy as on the prosecution. Whereas, the prosecution is bound to prove its case against the accused beyond reasonable doubt. However, the accused is only required to create a sufficient and reasonable suspicion in the case of the prosecution to rebut the presumption. It may also be noted that presumption is not available for the offence u/S.13(1)(d) of POC Act.
In T. Shankar Prasad Vs. State of Andhra Pradesh, 2004 (3) SCC 753, it has been inter alia held as under :
"Before proceeding further, we may point out that the expressions "may presume" and "shall presume" are defined in Section 4 of the Indian Evidence Act, 1872 (in short the 'Evidence Act'). The presumptions falling under the former category are compendiously known as "factual presumptions"
or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". When the expression "shall be presumed" is employed in Section 4(1) of the Act, it must have the same import of compulsion. When the subsection deals with legal presumption, it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 34 of 78 presumption under Section 4 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.
Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911 (1) KB 988) observed as follows:
"Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion".
In Dhanvantrai Vs. State of Maharashtra, AIR 1964 SC 575 it was observed that in order to raise the presumption under Section 4(1) of the Act what the prosecution has to prove is that the accused person has received 'gratification other than legal remuneration' and when it is shown that he has received a certain sum of money which was not a legal remuneration, then, the condition prescribed by this section is satisfied and the presumption thereunder must be raised. In Jhangan v. State of U.P. (1968 (3) SCR 766) CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 35 of 78 the above decisions were approved and it is observed that mere receipt of money is sufficient to raise the presumption under Section 4(1) of the Act. In C.I. Emden Vs. State of Uttar Pradesh, AIR 1960 SC 548 and V.D. Jhangan Vs. State of Uttar Pradesh (1966 (3) SCR 736) it was observed that if any money is received and no convincing, credible and acceptable explanation is offered by the accused as to how it came to be received by him, the presumption under Section 4 of the Act is available. When the receipt is admitted it is for the accused to prove as to how the presumption is not available as perforce the presumption arises and becomes operative.
If we peruse Section 7 of POC Act it would be clear that the initiative rests with the giver of the bribe and the offence would be completed if the accused has accepted or agreed to accept such gratification which is other than remuneration in respect of official act. Whereas for an offence u/S. 13(1)(d) of POC Act it will be required to prove that some initiative was taken by the person who received and in that context demand will be prerequisite.
There is no dispute that the appellant was a public servant at the relevant time. The question for determination would be as to whether he had accepted the gratification for doing some favour to complainant in exercise of his official function or that he has used illegal means or otherwise abused his position as such public servant and obtained valuable thing or pecuniary CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 36 of 78 advantage. In the case of C.K. Damodaran Nair Vs. Govt. of India 1997 Crl.L.J. 739, the Supreme Court considered the word "obtain" used in Section 5(1)(d) and held as under:
"The position will, however, be different so far as an offence under Section 5(1)(d) read with Section 5(2) of the Act is concerned. For such an offence, prosecution has to prove that the accused "obtained the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b)and not under Section 5(1)(c), (d) or (e) of the Act, "Obtain" means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC, which as noticed above Crl. Appeal No.90/2002 Page 9 of 21 can be, established by proof of either "acceptance" or "obtainment".
In the case of M.W. Mohiuddin v State of Maharashtra 1995 (2) SCR 864, the Supreme Court referring to the case of Ram Krishan and another v State of Delhi (1956) SCR 183 as well as dictionary meaning of the word "obtain" observed as under:
"...whether there was an acceptance of what is given as a bribe and whether there was an effort on the part of the receiver to obtain the pecuniary advantage by way of acceptance of the bribe depends on the facts and circumstances of each case". In that case, the Court held that it was proved that accused made a demand and also got the affirmation from the complainant that he had brought the demanded money and at his instance, the complainant wrapped the money in the handkerchief given by the accused and placed the same in the bag which was brought by the accused and as asked by him, these steps have been taken into consideration in CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 37 of 78 arriving at the conclusion that the accused had in fact "obtained" the pecuniary advantage, namely, that he received the illegal gratification. Therefore, the Court upheld the conviction under Section 13(1)(d).
14. In A. Subair v State of Kerala, (2009) 6 SCC 587, the Supreme Court held as under:
"The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established."
It is also a settled proposition that mere recovery of bribe money divorced from the circumstances under which it is paid is not sufficient to convict the accused if the substantial evidence of demand and acceptance in the case is not reliable. Therefore, in order to convict the accused in the present case, it is necessary for the prosecution to prove that there was demand emanating from accused and he accepted the tainted money. This would be a prerequisite for establishing the guilt u/S.7 or S.13(1)(d) of POC Act.
SANCTION 7.2 The defence has emphatically challenged the case of the prosecution at the out set on two grounds. Firstly, the sanction accorded for CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 38 of 78 prosecution is invalid and on account of illegal sanction, the cognizance itself taken by the court against the accused is nonest. Section 19 of POC Act provides that no court shall take cognizance of an offence punishable u/S.7, 10, 11, 13 and 15 of POC Act, except with the previous sanction. On the point of sanction, Ld. Counsel has cited following judgments :
i) Mansukhlal Vithalda Chauhan Vs. State of Gujarat, AIR 1997 SC 3400
ii) S ailendranath Bose vs. State of Bihar, AIR SC 1292 (V 55 C248)
iii) Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh (1979) 4 SCC 172
iv) Om Prakash Vs. State of Ors., 2009 (2) JCC 1210
v) Anirudhsinji Karansinhji Vs. State of Gujarat, AIR 1995 SC 2390 In Mohd. Iqbal Ahmed's case (supra), it was inter alia held that it is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways : either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction, or (2) by adducing evidence aliunde to show that the facts were placed before the Sanctioning Authority and the satisfaction arrived at by it. Any case instituted without a proper sanction must fail because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio.
In Shailendranath Bose's case (supra) it was inter alia held that CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 39 of 78 if a person who had accorded the sanction was not competent to remove the accused from service, the sanction such accorded would be invalid.
In Mansukhlal Vithaldas Chauhan's case (supra) it was inter alia held that sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not.
In Anirudhsinhji Karansinhji Jadeja's case (supra) which was a case under TADA, it was inter alia held that if there is lack of proper and due application of mind by the State Govt. while giving consent, the sanction would be invalid.
In Om Prakash's case (supra), our own Hon'ble High Court relying upon the CS Krishnamurthy Vs. State of Karnataka, 2005 (2) JCC 851 and State of Karnataka Vs. Ameer January (2008) Cri.L.J. 347, inter alia held as under :
"We agree that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not.
For the aforementioned purpose, indisputably, application of mind on the part of sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 40 of 78 noticed herein before that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Insepctor General of Police, Karnataka Lokayuktha."
The gist of the challenge of the defence is that in the present case the sanction was accorded by Late Sh. Dipanker Mukherjee the then GM (HR) without any authority and application of mind. The power to grant sanction has illegally been delegated which is not permissible in law. It is a settled proposition that the grant of sanction is not a mere formality. It is a solemn and sacrosanct act. In the various pronouncements made by superior courts it has repeatedly been held that the provisions related to sanction, though it aims at preventive harassment and vexatious prosecution of a public servant, cannot be taken as an umbrella for protection of corrupt or dishonest public servants. It has been a consistent view that such provision should be given a meaningful interpretation in accordance with the spirit of the Act.
As far as the proposition laid down in above noted cases is concerned, there cannot be any doubt in this. However, in a recent judgment of Hon'ble Supreme Court in State of Maharashtra Vs. Mahesh G. Jain, (2013) 8 SCC 119, it was inter alia held that the trial court cannot sit in appeal over the sanction order and it should not be constitute in a hyper technical manner. This case incidentally was also relating to the trap. Ld. Special Judge had acquitted the accused solely on the basis that sanction order was defective CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 41 of 78 and illegal and that went to the very root of jurisdiction of the court. The matter reached upto the Supreme Court. Hon'ble Supreme Court considered the matter threadbare and inter alia held as under :
"Grant of sanction is a sacrosanct act and is intended to provide safeguard to public servant against frivolous and vexatious litigations. Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence. Satisfaction of the sanctioning authority is essential to validate an order granting sanction.
It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out. The sanction order may expressly show that the sanctioning authority has perused the material placed before it and, after consideration of the circumstances, has granted sanction for prosecution. The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and its satisfaction was arrived at upon perusal of the material placed before it. If the sanctioning authority has perused all the materials placed before it and some of them have not been proved that would not vitiate the order of sanction.
The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order. An order of sanction should not be construed in a pedantic manner and there should not be a hyper technical approach to test its validity. When there is an order of sanction by the competent authority indicating application of mind, the same should not be lightly dealt with. Flimsy technicalities cannot be allowed to become tools in the hands of an accused."
It is also pertinent to mention here that the perusal of Section 19 CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 42 of 78 of POC Act as a whole would indicate that real test would be that whether any error, omission or irregularity has resulted in failure of justice. In the present case, the accused has presented a hyper technical approach. I consider that in such like cases, where the prosecution has proved the sanction on record, such a hyper technical approach would not be conducive to the cause of justice. Even the testimony of PW1 also indicate that power to grant sanction was duly conferred upon Late Sh. Dipanker Mukherjee the then GM (HR). PW1 has specifically stated that the amendments were duly made in the statutory regulation and Ex.PW1/B was only a communication of those amendments to all employees of Bank of Baroda. I consider that these trials under POC Act cannot be misdirected towards the minute examination of such powers. It would be suffice if apparently, it has been proved that the person who has granted sanction was competent as per law and the same has been granted with due application of mind. In the circumstances, I consider that first objection raised by the defence regarding sanction is liable to be rejected. Thus, it is held that the sanction u/S.19 of POC Act has duly been accorded against the accused.
TAPE RECORDED CONVERSATION 7.3 The prosecution has relied upon the tape recorded conversation between accused and the complainant on 19.01.2009 during the verification CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 43 of 78 proceedings and 29.01.2009 during the trap. The defence has seriously challenged the tape recorded conversation and has submitted that the tape recorded conversation being placed by the prosecution on record cannot be taken into consideration. The defence has relied upon the landmark judgment of Ram Singh and Ors. Vs. Col. Ram Singh, AIR 1986 SC 3. In this case, the apex court delivering the major view, inter alia laid down the conditions of admissibility of tape recorded conversation as follows :
"The conditions for admissibility of a tape recorded statement are as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognise his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
(2) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial. (3) Every possibility of tampering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. (4) The statement must be relevant according to the rules of Evidence Act. (5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
Where the voices recorded at number of places, were not very clear and CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 44 of 78 there was tremendous noise while the statements were being recorded and there were erasures here and there in the tape and besides the voice recorded was not very clear and the Deputy Commissioner who recorded the statements on tape clearly admitted in his evidence that he did not place the recorded cassette in proper custody, that is to say, in the official record room after duly sealing in the same and instead kept the same with himself without any authority and further admitted that when the transcript of the tape recorded statements was being prepared he was temporarily absent from his office to attend to certain other works and two of the witnesses whose statements were recorded denied the identity of their voice in the cassette and the third denied a good part of his statement and the tape recorded statements did not indicate the polling booth where it was recorded, the name of the person whose statement was recorded, the time of recording etc., the tape recorded statements of the witnesses were wholly inadmissible in evidence and at any rate, they did not have any probative value so as to inspire any confidence."
The prosecution has placed on record CD (Q1), Ex.PY1 relating to the recording conducted on 19.01.2009. The transcript of the same has been proved as Ex.PW3/A. CD was played with the help of laptop and amplifier during the testimony of PW3 on 08.02.2011. The complainant after hearing the conversation recorded in file No.090118_03 of 7.85 MB from 21.2 minutes onwards deposed that this was the conversation between him and accused while traveling in his car from Bank of Baroda, Janak Puri Branch to Noida office of M/s. Reliance for taking the BG. Further, file No.090118_01 of 44 KB size which was duration of 11 seconds and containing introductory voice of independent witness Moti Lal. Similarly, file No.090118_02 was of 8927 CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 45 of 78 KB and total duration of this CD was 38.05 minutes. The defence has raised an objection that this CD has not been proved as per S.65B of Indian Evidence Act and no certificate in terms of S.65 B has been produced by the prosecution. The complainant stated that conversation in file No.090118_03 took place between him and accused on 19.01.2009 in Bank of Baroda. My Ld. Predecessor had duly made a court observation that there was no transcript of file No.090118_01 and 02 and the transcript Ex.PW3/A is part of file No.090118_03. It was also observed that this file is of 34.20 minutes duration whereas transcript is from 21.02 minutes onwards. It has also came on record that DVR remained in possession of the TLO from 19.01.2009 to 28.01.2009. DVR was neither seized nor sealed nor it was kept in safe or official custody. I have also heard the CD during the trial as well as at the time of dictating the judgment and it has been found that the voice of the speaker at many instances is lost or disturbed by other surrounding voices. The sound at many places was not found very clear and there was tremendous noise while the statements were being recorded.
PW5 Dr. Rajinder Singh admitted in the cross examination that in the forwarding letter dated 13.02.2009, there is reference of specimen seal but the mark of seal was not mentioned with which the exhibits were sealed. It was also stated that the specimen seal was not annexed with the report dated 11.06.09, which was despatched by CFSL to SP, CBI. PW5 Dr. Rajinder Singh CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 46 of 78 also admitted in the cross examination conducted on 16.03.2013 that it is mentioned in his report Ex.PW5/A that the total duration in file No. 090118_03 part of CD Q1 is 34 minutes 20 seconds and the relevant conversation as per the transcription provided by the forwarding authority starts after 21 minutes 20 seconds approximately.
I consider that the way in which the CDR in the present case has been handled by the IO, there is a serious doubt on the accuracy of tape recorded conversation. TLO kept DVR with him for long 9 days after the pre trap proceedings and did not choose to seal it and keep in safe custody. The TLO was supposed to have deposited the DVR after completion of the pre trap proceedings in the safe custody. These may be mere lapses or omissions on the part of the TLO. However, this has created a serious doubt in the mind of the court. Another fact which has created a doubt in the mind of the court is selective recording of conversation. It has come on the record that certain telephonic conversations between the accused and the complainant were not recorded by the CBI. The reasons given by the CBI are less than satisfactory. In the circumstances, the corroborative evidence in the form of tape recorded conversation has not inspired the confidence of the court and has to be kept out of consideration for ascertaining the demand and acceptance of bribe on the part of the accused.
It may be pertinent to repeat here that tape recorded conversation CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 47 of 78 is only a corroborative piece of evidence and rejection of such piece of evidence would not per se demolish the case of the prosecution. It has to be seen that dehors the tape recorded conversation, whether the prosecution has been able to prove its case against the accused beyond reasonable doubt. 7.4 The defence has challenged the case of the prosecution on the ground that PW3 Sh. Yogesh Talan i.e. complainant in the present case is not a reliable witness. He has made a complaint with an ulterior motive only to implicate the accused falsely for the reason that accused has refused to dance to the tunes of the complainant. It has further been emphatically argued that independent witnesses i.e. PW7 Moti Lal and PW8 Harish Rajpal have not supported the case of the prosecution. Ld. defence counsel argued in detail that there are major contradictions in the testimony of the prosecution witnesses and therefore, the case of the prosecution cannot be accepted. The case of the prosecution has also been challenged on the ground of defective investigation in the form of keeping the DVR by TLO, recording of selective telephonic conversation and also other lapses and omissions conducted by the IO.
7.5 Ld. Defence counsel has also assailed the case of the prosecution on the ground of defective investigation. In support of his contention, Ld. CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 48 of 78 Defence Counsel relied upon Manpreet Singh and Anr. Vs. State, 2004 (1) CC Cases (HC) 74 and Radha Kishan Vs. State 87 (2000) DLT 106.
In Manpreet Singh's case (supra), which was a case under 302 and 201 IPC and Radha Kishan's case (supra), which was a case under NDPS, an objection was raised regarding the seal and seizure of the weapon of offence and non compliance of mandatory provisions, respectively. I consider that both these judgments are respectfully distinguished on the facts and circumstances of the case.
In respect of defective investigation, the law laid down by the superior courts has been very firm and clear. It has repeatedly been held that premium of defective investigation cannot be given to the accused. A full bench before the Hon'ble Supreme Court in Hema Vs. State, Crl. Appeal No. 31 of 2013, wherein it was reiterated that for certain defects in the investigation, the accused cannot be acquitted. The full bench cited with approval the judgment delivered in C. Muniappan and Ors. Vs. State of Tamil Nadu, 2010 (9) SCC 567, as under:
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 49 of 78 justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
In Dayal Singh and Others vs. State of Uttaranchal, 2012 (8) SCC 263, while reiterating the principles rendered in C. Muniappan (supra), the Supreme Court inter alia held:
"18. ... Merely because PW 3 and PW 6 have failed to perform their duties in accordance with the requirements of law, and there has been some defect in the investigation, it will not be to the benefit of the accused persons to the extent that they would be entitled to an order of acquittal on this ground. ..."
In regard to defective investigation, Apex Court in Dayal Singh v. State of Uttaranchal (supra) while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under:
"27. Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court should be relied CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 50 of 78 upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, held:
'5. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so [pic]would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective."
It is pertinent to mention here that in Hema's case (supra) Hon'ble Supreme Court was pleased to hold that with the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general. Thus, the superior Courts have held time and again that in case of defective investigation, it would not be right to acquit the accused only on this account. Acquittal in such cases would tantamount to playing in the hands of the IO, if the investigation is designedly defective. The duty of a Judge includes discharge of his judicial function objectively and in a correct perspective. If an attempt has been made to misdirect the trial on the basis of designedly defective investigation, the Court should be very cautious and must ensure that the justice delivery system is not subverted. The court of law must make an endeavour to impart justice and protect the interest of the society as CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 51 of 78 a whole.
7.6 Ld. Defence counsel argued in detail that the prosecution has miserably failed to prove its case as there are serious contradictions in the testimony of the prosecution witnesses. Ld. defence counsel has also cited various landmark judgments in support of his pleas, citations of which have been given herein above.
The law regarding contradictions have been dealt with by the Hon'ble Supreme Court in catena of the cases and it has been a consistent view that if on account of contradictions the prosecution case has not been shattered, the testimony of such witnesses can be accepted. Reference can be made to Gurbachan Singh Vs. Satpal Singh, (1990) 1 SCC 445. Similarly, in Sohrab Vs. State of M.P, (1972) 3 SCC 751, it has been inter alia held as under :
"It appears to us that merely because there have been discrepancies and contradictions in the evidence of some or all of the witnesses does not mean, that, the entire evidence of the prosecution has to be discarded. It is only after exercising caution and care and sifting the evidence to separate the truth from untruth, exaggeration, embellishments and improvement, the Court comes. to the conclusion that what can be accepted implicates the appellants it will convict them. This Court has held that falsus in uno falsus in omnibus is not a sound rule for the reason that hardly one comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishments. In most cases, the witnesses when asked about details venture to give some answer, not CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 52 of 78 necessarily true or relevant for fear that their evidence may not be accepted in respect of the main incident which they have witnessed but that is not to say that their evidence as to the salient features of the case after cautious scrutiny cannot be considered though where the substratum of the prosecution case or material part of the evidence is disbelievable it will not 'be permissible for the Court to reconstruct a story of its own out of the rest."
Similarly, in State of UP Vs. Naresh & Ors., (2011) 4 SCC 324. The Apex court inter alia held as under :
"In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be held safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility."
Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 53 of 78 testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287]."
Thus, it has to be seen that whether contradictions which have appeared in the testimony of prosecution witnesses are sufficient to throw the case of the prosecution or such contradictions are minor in nature and does not go to the root of the case. In order to determine that whether the contradictions strike at the root of the case or substantial part of the case of the prosecution, it has to be seen that whether those contradictions strike at the basic contours of the case. The contours of the case u/S.7 and S.13 would be demand, acceptance and recovery of bribe.
7.7 The case of the prosecution has also been challenged on the ground that the complainant has made improvements while making statement in the court. It has been submitted that in the complaint, Ex.PW3/C, there is allegation of demand of bribe at one instance, however, when the complainant came in the witness box, he made statement regarding the demand of bribe at several instances. I consider that there is no force in this argument as it is a settled proposition that FIR is not an encyclopedia of the entire case. The FIR may not or need not contain all the details. The complainant even being fully CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 54 of 78 acquaintance with the facts may lack to reproduce details of the entire transaction without anything missing from this. Some people may miss even the most important details in the narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. Reference can be made to Rohtash Vs. State of Rajasthan, (2006) 12 SCC 64 and Ranjit Singh Vs. State of M.P., (2011) 4 SCC 336.
The contradictions which have been discussed in detail during the discussion in the arguments of Ld. Defence counsel would indicate that the contradictions do not go to the substratum of the case of the prosecution. I consider that there is nothing on record which could be termed to be contradictions in material particulars. PW7 Moti Lal and PW8 Harish Rajpal who were the independent witnesses have deposed in a natural way. It is not obligatory upon the independent witnesses to depose about each and every minute detail of the case. It would be suffice if they depose generally and truly about the incident. It has to be kept in mind that in criminal trial, the witnesses or complainant are not at trial. The trial is of the accused. It is sufficient for the complainant and witnesses if they made a statement which inspire the confidence of the court. I consider that the contradictions which are referred to by Ld. Defence Counsel are minor in nature and does not go to the root of the case.
CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 55 of 78 8.0 Sh. Jugal Wadhwa, Ld. counsel for the accused submitted that the testimony of the complainant is liable to be rejected as he had a grouse against the accused. The complainant filed a false complaint as accused was not accepting his illegal demands. I consider that if the statement of the complainant in bribe case is rejected merely on the ground that he had a grouse against the accused then, no bribe giver can get away from such stigma in any graft case. In all such cases, the complainant would have been aggrieved by the conduct of the accused. The very fact that complainant lodged a complaint, reflect his grievances. The only rule of caution is that in such like cases evidence of the complainant is required to be scrutinized carefully. However, the same cannot be rejected outrightly at the thresh hold. It has repeatedly been held that such a pedantic approach rejecting the evidence of a complainant simply on the premise that he was aggrieved against the bribe taker will only held corrupt officials being insulated from legal consequences. Reference can be made to State of UP Vs. Zakaullah, AIR 1998 SC 1474.
The defence has also assailed the testimony of the complainant on the ground that there is no independent corroboration to his testimony. It has repeatedly been held in the catena of the judgments that if a witness is otherwise reliable and independent, there is no rule of law that corroboration CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 56 of 78 is essential. It is also a settled proposition that a bribe giver may not be stigmatised as an accomplice in the strict sense of terms particeps criminis.
In regard to the enmity between the accused and the complainant, Hon'ble Supreme Court recently in Syed Ahmed Vs. State of Karnataka (2012) SCC 527 did not give any weight to the arguments of revenge raised by the accused.
Regarding uncorroborated testimony of the complainant, the Apex court recently in Criminal Appeal No. 870 of 2012 Mukut Bihari & Ant. Vs. State of Rajasthan , took into account number of judgments and finally inter alia held as under :
"9. The case of the appellants has no merit as the case is squarely covered by the judgment of this Court in C.M. Sharma Vs. State of A.P. TH. I.P., AIR 2011 SC 608, wherein a similar issue had been raised that the complainant alongwith the shadow witness went to the office of the accused but the accused asked the shadow witness to go out of the chamber. Shadow witness left the chamber. However, the complainant brought the shadow witness in the chamber and explained to the accused that he was his financer. Despite that the accused again asked the shadow witness to leave the chamber and thus, he went out. The accused demanded the money and the complainant paid over the tainted money to him, which he received from his right hand and kept in right side pocket of the trouser. A signal was given, whereupon he was trapped by the team which apprehended the accused and conducted sodium carbonate test on the fingers of the right hand and right trouser pocket of the accused, which turned pink. The tainted notes were lying on the floor of the office, which were recovered.
10. This Court, after considering various judgments of this Court CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 57 of 78 including Panalal Damodar Rathi (supra) and Smt. Meena Balwant Hemke (supra) held that acceptance of the submission of the accused that the complainant's version required corroboration in all circumstances, in abstract would encourage the bribe taker to receive illegal gratification in privacy and then insist for corroboration in case of the prosecution. Law cannot countenance such situation. Thus, it is not necessary that the evidence of a reliable witness is necessary to be corroborated by another witness, as such evidence stands corroborated from the other material on record. The court further distinguished the case of Panalal Danodar Rathi (supra) on the ground that in that case the Panch witness had not supported the prosecution case and therefore, the benefit of doubt was given to the accused. In Meena Balwat Hemke (supra) as the evidence was contradictory, the corroboration was found necessary."
8.1 Now coming to the testimony of PW3 Sh. Yogesh Talan. He has specifically made a detailed statement on oath regarding demand of bribe on part of the accused at the time of releasing the BGs. The part of his testimony regarding grant of sanction has not been discussed as it is not in dispute. The complainant has specifically stated in vernacular language about the demand of bribe on the part of the accused. It is a matter of record that there was mention of demand of bribe on the part of the accused in his earlier statement also.
If the improvements made by the witness in court totally outclass the statement made by him to the police, it would be unjust to accept the statement made before the court as it can very well be an afterthought. In the CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 58 of 78 present case, where there is allegation of demand of bribe and the complainant in his statement made before the police during the course of investigation specifically stated about demand of bribe, however when he came before the court to make statement on oath, he made it more explanatory. It has to be kept in mind that every person has a different mental capabilities. It has also to be considered that a person while making a statement before the police, may be a complainant or an accused, has a different mindset but when he comes to the court there may be an anxiety to tell the things in the court in detail. If the witness has only made an explanatory statement before the court that should not be rejected merely because such explanations were not given in the statement made before the police.
Here it is also pertinent to mention here that it is a matter of record that accused was specifically directed not to issue the BG till the site inspection is conducted. The documents are on record wherein the accused had been sending the communications to the Regional Office seeking permission to visit site for inspection but in contravention of the directions of the Regional Office, the accused choose to release the BG to the complainant. If we peruse the communication dated 10.01.2009, Ex.PW2/D14, it would be clear that the accused had undertaken to visit the site latest by 17.01.2009. He had also communicated to the Regional Office that the BG shall be handed CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 59 of 78 over to beneficiary only after site inspection. It has come on record that this BG was handed over to the complainant on 17.01.2009 before the site inspection. This was a serious violation of the directions issued by the senior officers, on the part of the accused.
8.2 The plea of the accused that BG was handed over by PW2 Sandeep Chopra, Manager (Credit) or it has illegally been taken away by the complainant, does not cut much ice. If the evidence is read in the entirety it would reflect that it was the accused only who handed over the BG to the complainant on 17.01.2009. The complainant in his testimony has specifically stated that on 17.01.2009 after Reliance issued a memo threatening to terminate his contract, he pleaded before the accused to release his BG, upon which the accused handed over the BG to him and demanded bribe of Rs.2.50 lacs from him. The complainant stated that at the time of handing over the BG, the accused also told that he should not submit the BGs to Reliance and also told that he would visit the site. It has also come in the testimony of the complainant that there was persistent demand of bribe from the side of the accused. The complainant stated that accused also threatened that if he would not pay this amount then he would not be able to use this third BG. The complainant told the accused that he will make some arrangements and took the BG from accused and on the same day, the complainant sent the BG CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 60 of 78 through his employee to the Noida office of the Reliance. The complainant deposed in detail regarding the lodging of his complaint on 19.01.2009 and having met PW18 Insp. NVN Krishnan. He stated that PW7 Moti Lal was also joined. It also came in the testimony of the complainant that on that day he alongwith independent witness PW7 Moti Lal and other Inspectors left CBI office at around 3:45pm for Janak Puri Branch. The complainant stated that he met the accused where upon being told that money could not be arranged, accused got furious and illtreated him. Accused stated that since bribe has not been paid, the BG should be returned immediately. Since the complainant stated that BG can only be returned by the Reliance, the accused agreed to accompany the complainant to the office of Reliance to fetch the BG. The complainant stated that during conversation again the accused demanded a bribe of Rs.2.50 lacs.
The complainant has made a detailed statement regarding the pretrap verification proceedings and then regarding visit of accused to the site. The pre trap proceedings have also been proved by the complainant on oath. He stated that on 28.01.2009 he again went to CBI office where independent witness PW7 Moti Lal was called and transcript was prepared. The complainant stated that bribe of Rs.2.50 lacs was demanded by the accused @ 2% of the three BGs released so for amounting to approximately Rs.1.25 crores. The complainant proved his complaint dated 19.01.2009, CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 61 of 78 Ex.PW3/C and verification memo Ex.PW3/D. FIR dated 28.01.2009 has also been proved as Ex.PW3/E. 8.3 Regarding 29.01.2009, the complainant stated that he reached CBI office at about 9:45 am where PW7 Moti Lal and PW9 SI Rohit Kumar were present. He produced Rs.1.50 lacs as trap money. A white envelope and currency notes were also smeared and currency notes were kept in the envelope. The handing over memo Ex.PW3/F was prepared and necessary instructions were given to all. The trap team reached at the spot. Pursuant to the discussion between the complainant and the accused, the accused came in his car from the side of Tilak Nagar and stopped the same near the complainant. The accused rolled down on the window glass of the left side front door of his car and asked the complainant to sit in the car. The complainant stated that after exchange of pleasantries, the complainant told that he was passing through difficult times and with great hardship could arrange the money. The accused said that all these things do happen and in future also he would help the complainant. The complainant opened the briefcase and took out the envelope and showed one bundle of notes to the accused on which accused took the envelope in his hand. The accused also demanded the photographs of the site inspection. The complainant stated that PW8 Harish Rajpal was standing at a distance of about 10 feet. After giving CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 62 of 78 the indication, the trap team rushed towards the accused and surrounded him. The accused was apprehended. Initially he asked to be forgiven and then stated that he has committed a mistake. Since the crowd gathered there, accused was taken to a different place. His hand washes and wash of car was taken. Currency notes were tallied with the handing over memo and were found to be same. Recovery memo Ex.PW3/F was prepared. Envelope was proved as Ex.PW3/H and currency notes were proved as Ex.P4.
It also came in the testimony of the complainant that during the conversation with the accused at the time of transaction, accused asked him to get the date of the letter changed. Said letter, Ex.PW2/F3 dated 20.01.2009 was sent by Reliance to the General Manager, Bank Of Baroda, District Centre, Janak Puri, New Delhi for confirmation of the BG. The complainant stated that accused was holding the said letter without replying the same and at the time of transaction he had asked the complainant to get the date of the letter changed by Reliance after the date of the transaction so that he could reply to the same immediately. It is pertinent to mention here that this letter was recovered from the office of the accused on 29.01.2009. This implies that the accused was holding this letter and did not reply the same even after his site inspection. This indicate towards the criminality on the part of the accused. It is also worth to note here that the defence is not disputing acceptance of envelope from the complainant on 29.01.2009. The plea taken CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 63 of 78 by the defence is that this envelope contained some documents relating to the site inspection. This plea taken by the defence does not inspire any confidence of the court. It does not appeal to the reason that a senior bank manager would go downstairs and ask the customer of the bank to meet him on the road to deliver such papers. In the written arguments, the accused has taken a plea that infact on that day, he had some urgent work at home and had to rush early. However, this plea never appeared during the trial. The accused has also not produced any leave document or any official record that he left the office on that day early for the same personal work. This plea taken by the accused seems to be an afterthought. If the accused had to take the documents relating to the inspection the probable way was to receive the same in the office itself. It is illogical that a Bank Manager would meet the customer on the road to collect such documents.
The complainant was cross examined in great detail. However, such cross examination has not been able to shatter the testimony of the complainant. The first defence was put that accused had annoyed the complainant as he asked for the regular EMI of the carloan of the wife of the complainant.
Ld. Defence counsel while pointing out the contradictions / improvements made by the complainant in his testimony made before the court, confronted him with the complaint Ex.PW3/C and the statement CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 64 of 78 recorded u/S.161 Cr.P.C., Ex.PW3/DA and DB. Admittedly, some of the statements made by the complainant in the witness box did not find place in the earlier statements. However, the complainant explained during the cross examination recorded on 20.07.2011 that he had disclosed the same to the IO at the time of recording of his statement when he asked about the sequence of events. It is worth to mention here that my Ld. Predecessor while recording the cross examination of PW3 complainant on 20.07.2011 specifically made an observation that in statement Ex.PW3/DA, the demand of bribe is duly mentioned.
During the cross examination on 20.07.2011, the complainant specifically stated that accused had never demanded the documents relating to site inspection so there was no occasion for him to know that these documents were required by him. The complainant was also cross examined at length regarding the tape recorded conversation and recording of several calls. However, there would be no purpose of discussing that part of cross examination as this court had already held that corroborative evidence regarding the tape recorded conversation has not been taken into consideration having not inspired the confidence of the court. The defence put their entire case by way of suggestion to the complainant which was specifically denied by the complainant.
CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 65 of 78 8.4 Regarding demand of bribe by the accused in the car on 29.01.2009, the complainant was confronted with his previous statement made on 25.03.2009 and 17.06.2009. After going through the same, the complainant confirmed that in the statement dated 25.03.2009 it was recorded that inside the car the accused asked him for the bribe amount and in the statement dated 17.06.2009, it is stated that "it is also clear from the conversation that he demanded bribe from me". It was also stated that in the recovery memo it was mentioned that "accused was seen extending his left hand".
The complainant denied the suggestion that while he was in car with the accused, the envelope did not contain the currency notes and the said envelope which the complainant handed over to the accused contained the photographs of the site inspection which was done by the accused on 20.01.2009 besides copies of ICard and pendrive which the accused was demanding from the complainant to complete the exercise of the site inspection.
I have gone through the lengthy cross examination of the complainant running into around 100 pages but I do not find anything substantial which has the potency to demolish the case of the prosecution. Certain contradictions are there but the same are not sufficient to discard the case of the prosecution. The defence has tried to highlight the fact that certain telephonic calls between the complainant and the accused were not recorded CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 66 of 78 and therefore, the case of the prosecution cannot be believed. I consider that this point has been blown out of the proportion. While appreciating the evidence on record, the duty of the court is to ascertain that evidence placed on record is sufficient to accept the case of the prosecution or not. If this evidence is sufficient, the evidence which has been left out would not effect unless and until the defence is able to show on record that the evidence which was left could displace/discard the evidence which is placed on record. It is also a settled proposition that prosecution is required to prove the case beyond reasonable doubt and not all the doubts. The defence has also not to merely create a doubt, it is required to create a doubt which is sufficient to discard the case of the prosecution. The complainant was also cross examined regarding his earlier complaint made against some other public servants. However, I consider that it would not affect in any manner the present case of the prosecution.
8.5 PW7 Moti Lal has also supported the case of the prosecution, may be in a limited manner. Regarding 29.01.2009, the witness specifically stated that during lunch hours, accused Rajender Kumar Gupta came out of the office under Tilak Nagar Metro Station which was just close to District Centre, Janak Puri. The car of the accused Rajender Kumar Gupta was parked there and they all were also standing there. Witness further stated that the CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 67 of 78 complainant went there with money in his briefcase. Accused Rajender Gupta opened the right hand side gate of his car. The complainant handed over that envelope to Rajender Gupta and came back. The witness further stated that the complainant had hardly come 57 steps and when Rajender Gupta just closed the door of the car, Navneet caught hold the hand of accused. Witness also made a specific statement regarding hand washes being taken of the accused. There is no cross examination of this witness regarding this part of the testimony and thus, this has remained unchallenged.
Similarly, PW8 Harish Rajpal has also made a consistent statement regarding the transaction of bribe on 29.01.2009. PW8 Harish Rajpal stated that on 29.01.2009 after they were told that bribe was to be paid, the complainant produced Rs.1.5 lacs. The witness proved the proceedings regarding demonstration. He further stated that on reaching the spot, the complainant called from his mobile to accused and asked that whether they could meet. During conversation, it was decided that the complainant and accused would meet at the Najafgarh Road, at the Disrict Centre, Janak Puri and thereafter all the members of the trap team including PW8 got scattered. PW8 further stated that the complainant was standing on the road and he was standing at some distance behind the complainant and other members of the trap team took their positions. In the meanwhile, a Maruti 800 Car came there and stopped near the complainant. The complainant opened the front gate of CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 68 of 78 the car and sat on the first seat and closed the gate. Lateron , it was identified that the person who had come in Maruti 800 Car was accused Rajinder Kumar Gupta. Some conversation took place between accused and the complainant. Thereafter the envelope which was given to the complainant was handedover to the accused. The witness stated that since he was standing on the left hand side of the car, he had seen all this happening. The witness further stated that after the accused was caught, the envelope was found on the car seat was found containing currency notes. This witness also deposed about hand washes being taken. In the cross examination, this witness was confronted with certain improvements made by him. However, I consider that such improvements cannot vitiate the testimony of this witness. 8.6 The defence has also challenged the testimony of PW8 Harish Kumar Rajpal. It has been submitted that this witness deposed at the direction of CBI and therefore, his testimony cannot be believed. I consider that this plea of the defence is totally misplaced. PW7 Moti Lal was a DDA employee and PW8 Harish Rajpal was a Bank officer. There was no reason for these witnesses to depose falsely against the accused nor was there any reason for them to work under the pressure of CBI. Rather if any doubt is raised on the integrity of such witnesses, it would be unjust to them. There is absolutely no reason for PW7 and PW8 to have come and depose falsely against the CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 69 of 78 accused. Thus, the demand, acceptance and recovery has duly been proved by PW3 Sh. Yogesh Talan, PW7 Moti Lal and PW8 Harish Rajpal. The presence of phenolphthalein powder immediately after the incident in the hand washes also lends corroboration to the case of the prosecution.
PW18 Insp. NVN Krishnan (TLO) has also made a detailed consistent and corroborative statement right from the handing over of the complaint on 19.01.2009. He gave minute detail about verification proceedings and the pre trap proceedings including constitution of trap team, smearing of phenolphthalein powder on currency notes and envelope as well as briefing to the complainant and other witnesses. In regard to the acceptance of bribe, TLO stated that after the pre trap proceedings, the trap team left the CBI office to the spot in Janak Puri in complainant's vehicle as well as govt. vehicle. After reaching the spot, the complainant contacted accused on his mobile on which accused informed that he will call him back in few minutes. After about 5 minutes, accused called the complainant from the official landline and informed him that he is preoccupied with work and will call him as soon as he is free. After sometime, accused called the complainant on his mobile and directed him to reach near the parking area outside the district centre on the Najafgarh Road. Immediately, the complainant and PW8 Harish Rajpal, who was directed to act as shadow witness, reached near the parking area, Najafgarh Road and waited over there. The other trap party members CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 70 of 78 took their respective positions discretely in a scattered manner. After about 5 minutes, a person in Maruti Car, who was subsequently identified as Rajender Gupta, Branch Manager, Bank of Baroda (accused herein), reached to the complainant and opened the front door of the Maruti Car and directed the complainant to enter inside the vehicle by gesture. Inside the vehicle accused was seen extending his hand on which the complainant took out the envelope containing tainted bribe amount and extended towards accused which he accepted with his both hands. Thereafter, the complainant came out of the vehicle. PW18 Insp. NVN Krishnan stated that the entire proceedings were witnessed by all the trap party including both the independent witnesses. Thereafter, accused was apprehended. Initially, accused reluctantly accepted to have received the bribe amount and thereafter, since the crowd gathered, the accused was taken to a different venue where hand wash of accused were taken and an envelope containing currency notes were recovered from the car. This witness was cross examined at length by the defence. The defence has also tried to demolish the case of the prosecution on the ground that TLO in his evidence stated that the Branch was situated at 8th floor, whereas DW2 has specifically proved on record that the branch was on ground floor. I consider that this also does not go to the root of the case. Firstly, the incident regarding transaction of bribe has not taken place inside the branch. It is also not the case of the prosecution that during verification proceedings, the TLO CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 71 of 78 had visited the branch. It seems that bank being situated in multistory building, there was some confusion in the mind of TLO which led to this contradiction. In the examination in chief, the witness stated the recovery was effected by PW8 Harish Rajpal and the same was corrected by him in the cross examination. Witness stated that recovery of envelope containing currency notes was actually affected by PW7. TLO also reiterated that on 29.01.2009, inside the car, the demand was made by the accused by way of gesture by extending his hand and the same was witnessed by the entire trap team. TLO also specifically stated that they were able to see the person sitting inside the car. The defence put the entire case by way of suggestion which were denied. PW9 SI Rohit Kumar the then SI, CBI was also member of the trap team. He remained associated during verification proceedings and the trap. This witness also made a consistent and corroborative statement on oath. However, he was confronted with his earlier statement to prove that he has made substantial improvements. However, if the testimony is read as a whole it seems that the witness has deposed on oath regarding the acceptance and recovery of bribe by the accused.
It is pertinent to mention here that in the cross examination PW2 Sandeep Chopra deposed that the role of the accused was to ensure that the terms and conditions of the loan have been complied with. The witness specifically stated that he had not handed over the original third BG to Sh. CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 72 of 78 Yogesh Talan. It also came in the evidence of this witness that he had handed over the third BG to the accused. Therefore, the reading of the evidence of this witness would make it clear that the third BG Ex.P2 was in possession of the accused.
PW4 Rajat Mehndiratta, General Manager, RIL also stated that BG of about 88 lacs was submitted by the complainant on 17.01.2009 which was forwarded by him to the finance department for confirmation. PW4 specifically stated that he received 23 phone calls from one Mr. Gupta stating that he was the Bank Manager of Bank of Baroda and he he wanted him to return the said bank guarantee as there was something not correct in the said BG and because of that somebody was going to loose his job. This part of the testimony would make it clear that it was the accused only who had handed over the BG to the complainant in violation of the directions of the senior officer and thereafter, he was also trying desperately to get back the BG. This is in sync with the case of the complainant that initially the BG was given but thereafter, since the demand was not made the accused was trying to take back the BG. It seems that accused had initially under some unholy agreement handed over the BG to the complainant in a clandestine manner and thereafter, since the deal was not getting through he was insisting for calling back the BG. Here the accused and the complainant both were trying to out smart each other and it seems that accused committed one mistake after CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 73 of 78 another.
The defence has assailed the case of the prosecution strongly on the ground that CDR Ex.DW1/A falsifies its case altogether. In support of his contention, Ld. Counsel cited Prashant Bharti Vs. State of NCT of Delhi, (2013) CCR 453 (SC). I have perused this judgment. This judgment is respectfully distinguished on the facts and circumstances of the case. In Prashant Bharti's case (supra), the accused had specifically filed an affidavit regarding his location on the basis of call details record which was found to be corrected by the Investigating Officer on the basis of his mobile phone call details and secondly in the present case, during verification proceedings, ever as per the case of the prosecution, the complainant and the accused were on move.
In the present case, the case of the prosecution is that at around 5 pm, the complainant left with accused from Janak Puri Branch and they reached Hyatt Regency and from there to South Extn. The complainant stated to have joined CBI team at around 7:30 pm at Bikaji Cama Place and from there they went to the CBI office. In the CBI office, the verification memo was prepared till 10 pm. The plea was that as per Ex.DW1/A, the location of the complainant from 14:07:29 (hh:mm:ss) till 10pm were as under :
Charge Call Start Start State Start Calld Party Calling Bill Orig Servi Sector BTS_Add Party No. Direct Date Time Time Time No. Party No. Durati Bts ce ID ress ion Hour Min. Sec on Type 9312037565 Out 18.01.09 18 0 11 9350716668 9312037565 607.8 55 0 1 Sec.7 CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 74 of 78 Call Dwarka 9312037565 In Call 19.01.09 12 18 47 9312037565 1125593313 146.5 23 10 2 Aurangzeb Raod, Tuglak Road, Delhi 9312037565 Out 19.01.09 12 24 16 9350716668 9312037565 204.3 1 0 1 Lodhi Call Road, Andhra Pradesh Assc.
9312037565 Out 19.01.09 13 5 29 9350716668 9312037565 73.5 1 0 1 Lodhi
Call Road,
Andhra
Pradesh
Assc.
9312037565 In Call 19.01.09 14 7 29 9312037565 1125593313 390 44 10 2 Kaka
Nagar
9312037565 In Call 19.01.09 14 16 44 9312037565 1125593313 64.6 65 10 3 Nizmmdin
9312037565 In Call 19.01.09 15 26 39 9312037565 1125593313 101.4 43 10 3 Khan
Market
9312037565 In Call 19.01.09 15 28 47 9312037565 1125593313 118.1 44 10 2 Kaka
Nagar
9312037565 In Call 19.01.09 15 55 18 9312037565 1125593313 184.1 15 10 3 Chankya
Puri
9312037565 In Call 19.01.09 16 1 53 9312037565 1125593313 217.4 13 10 1 Shanti
Niketan
9312037565 In Call 19.01.09 17 15 23 9312037565 1125593313 22.4 84 10 3 New
Mahavir
Nagar
9312037565 Out 19.01.09 20 31 57 9350716668 9312037565 174 22 0 3 Chankya
Call Puri
If we see the location of the complainant in the CDR, it is like Kaka Nagar, Nizamuddin, Lodhi Institutional Area, Chanakya Puri, Shanti Niketan, Nangal Rai, Virender Nagar, Jail Road, Janak Puri, New Mahavir Nagar, Uttam Nagar, Bikaji Cama Palace, East of Kailash, Laxmi Bai Nagar, South Extn., Andrews Ganj, Aurangzeb Road, Pandit Ravi Shanker Road, Jai Singh Road, Parliament Street, Yashwant Palace, Bikaji Cama Palace, RK Puram and Anand Niketan.CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 75 of 78
If we analyse the location of the complainant as per Ex.DW1/A, it rather supports the case of the prosecution. From beginning it would show the location of the complainant at Kaka Nagar at around 2 pm, from there towards Janak Puri at around 4 pm and at Bikaji Cama Palace at around 6 pm. It also shows the complainant somewhere near South Extn. at about 6:30 pm and back at Chankya Puri at around 8:30 pm and thereafter somewhere near Bikaji Cama Palace and Anand Niketan. It is a matter of common knowledge that towers of the mobile companies / service providers are fixed at different places and location of a person cannot be definitely fixed as per the location of the towers. The locations which have been given here are of the towers and it is quite possible that while a person is on move, he may shift to come within the radius of different towers.
Here is not the case whether the location of the tower is altogether different from the case of the prosecution. For example, had it been shown the location of towers Gurgaon or Sonepat or in that matter Rohini and Shahdara, the situation would have been different, whereas the location of the tower in the present case is in sync with the case of the prosecution.
I have also considered the remaining judgments cited by Ld. Defence counsel on the prepositions which have been laid down. However, the same are respectfully distinguished on the facts and circumstances of the present case.CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 76 of 78
The duty of the trial court while appreciating the evidence of the prosecution witnesses is an onerous duty. In the criminal trial, evidence of eye witnesses requires a careful assessment and evaluation for credibility. The evidence on record is required to be tested for its inherent consistency or inherent inconsistency and probative value of the evidence has to be put into scales for a cumulative evaluation. It is a settled proposition that degree of proof cannot be stated in mathematical units, but the guiding principle that the evidence must point only towards the guilt and should exclude innocence, must never be lost sight of. In order to record the conviction the evidence must point only towards the guilt of the accused. The simple jerks and jolts in the testimony of the witnesses of the prosecution cannot entitle the accused for acquittal. In the present case, I have considered and appreciated the evidence of PW3 the complainant alongwith testimony of PW7 Moti Lal, PW8 Harish Rajpal and other corroborative evidence and I find that there is a ring of truth in the testimony of these witnesses. This case was regarding demand of bribe by a senior bank officials from customer of the bank and in such like cases, the court has to remain alive to the core issue and appreciation of evidence should be done in a pragmatic manner. In such like cases, minor irregularities or technicalities are not to be given everstine status.
9.0 In view of the above findings, I consider that the prosecution has CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 77 of 78 been able to establish that accused Rajender Kumar Gupta had demanded and received bribe from the complainant. I consider that it is a fit case where presumption u/s.20 POC can also be raised and, therefore, accused Rajender Kumar Gupta is held guilty of the offence u/S.7 of Prevention of Corruption Act, 1988 and u/s.13(1)(d) r/w S.13(2) of Prevention of Corruption Act, 1988 in RC No.5(A)/2009 and convicted accordingly.
Announced in Open Court ( Dinesh Kumar Sharma )
on 27.05.2014 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 78 of 78
CC No.01/12
CBI Vs. Rajender Kumar Gupta
RC No.5(A)/09
27.05.2014
Present : Sh. S. Krishna Kumar, Ld. PP for CBI
Accused Rajender Kumar Gupta on bail is present with Sh. Jugal Wadhwa, Advocate Vide separately announced judgment, accused Rajender Kumar Gupta is convicted for the offence u/S.7 and u/s.13(1)(d) r/w S.13(2) of Prevention of Corruption Act, 1988 in RC No.5(A)/2009 and convicted accordingly.
Now to come up for arguments on the point of sentence on 31.05.2014.
(Dinesh Kumar Sharma) Spl. Judge (PC Act) : CBI01 : 27.05.2014 CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 79 of 78 IN THE COURT OF DINESH KUMAR SHARMA SPECIAL JUDGE (PC ACT), CBI 01, SAKET COURTS, NEW DELHI CC No.01/12 Unique Case ID No.02403R0176472009 C.B.I. Vs. Rajender Kumar Gupta S/o. Sh. RP Gupta R/o. 10/2, Jai Dev Park, East Punjabi Bagh, New Delhi RC No. : DAI2009A005 u/Ss : u/S.7 & u/S.13(2) r/w S.13(1)(d) of PC, Act 1988 Judgment announced on : 27.05.2014 Date of Order on Sentence : 04.06.2014 ORDER ON SENTENCE Present : Sh. S. Krishna Kumar, Ld. PP for CBI Convict in person with Sh. GK Bharti, Advocate on behalf of Sh. Jugal Wadhwa, Ld. counsel for convict CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 80 of 78 Arguments on the point of sentence heard.
Sh. Rajender Kumar Gupta has been convicted for the offence u/S.7 & S.13(1)(d) r/w S.13(2) of PC Act, 1988 for having demanded and accepted illegal gratification from PW3 Yogesh Talan. 2.0 Sh. S. Krishna Kumar, Ld. PP for CBI has prayed for the maximum punishment in this case on the ground that this is a worst case where accused only by virtue of his position as Bank Manager demanded and accepted bribe from PW3 Yogesh Talan. Ld. PP has relied upon State of M.P. Vs. Shambhu Dayal Nagar, 2006 8 SCC 693. In this case it was inter alia held as under :
"It is difficult to accept the prayer of the respondent that a lenient view be taken in this case. The corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Largescale corruption retards the nationbuilding activities and everyone has to suffer on that count. As has been aptly observed in Swatantar Singh v. State of Haryana, (1997) 4 SCC 14, corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and unchaseable clouds around the conduct of the officer and gain notoriety much faster than the smoke.CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 81 of 78
Sh. S. Krishna Kumar, Ld. PP further submitted that in A.B. Bhaskara Rao Vs. Inspector of Police, CBI, Vishakhapatnam, AIR 2011 SC 3845, the Apex court held that long delay in disposal of appeal or any other factor may not be a ground for reduction of sentence particularly if the statute prescribes minimum sentence. Ld. PP further submitted that in A.B. Bhaskara Rao's case (supra), the Apex court also held that in a case of corruption by public servant, quantum of amount is immaterial. Ultimately it depends upon the conduct of the delinquent and the proof regarding demand and acceptance established by the prosecution. Sh. S. Krishna Kumar, Ld. PP submitted that in such like cases, the previous record of convict is immaterial. The court cannot be swayed away by the fact that convict has been awarded for his efficiency in his career. Ld. PP invited the attention of this court towards the fact of this case whereby the convict had almost gone to the extent of extortion from the complainant. A prayer for maximum sentence has been repeated.
2.1 Sh. G.K. Bharti, Ld. Counsel on behalf of Sh. Jugal Wadhwa, Advocate, who is stated to be stuck in some other case, submitted this is a peculiar case where the convict is facing great hardships. It has been submitted that convict Rajender Kumar Gupta himself is suffering from various ailments. He is a serious patient of hypertension, hernia, gall bladder, CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 82 of 78 Gastroauto reflexes. Sh. GK Bharti, Ld. counsel submitted that even during the trial, the convict collapsed in the court and had to be taken to the nearby hospital. It has further been submitted that wife of convict, Mrs. Gaytri Gupta is also not well. She has been diagnosed with tumor in intestine. The convict has two sons. The elder one is an Engineer and in private job and is to be married on 02.07.2014 and the younger son is still studying. The convict is 55 years of age and had an excellent service record. He had been awarded "UTKARSH AWARD" thrice during his career, which is very exceptional in banking sector. He has never faced any departmental inquiry during his job.
Ld. counsel submitted that in these circumstances, a lenient view may be taken against the convict. In support of his contention, Ld. counsel has relied upon Bechaarbhai S. Prajapati Vs. State of Gujarat, 2009 Cri.L.J. 1158 ;
Mahesh Pal Singh Vs. State of NCT of Delhi, 2014 (140) DRJ 386 and Bimal Kishore Pandey Vs. CBI, Crl. Appeal No.36/2006 decided on 30.05.2013.
3.0 I have considered the submission and perused the record carefully.
4.0 The common man of this country is suffering the pain and heat CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 83 of 78 caused on account of rising corruption in the society. Particularly, corruption by a senior Bank official is a matter of concern, as the common man of this country poses great faith in the public sector banks. The banks are the pivot of the entire economy of this country and the corruption in such sector would strike at the root of the things. The convict has been proved to have committed a very serious offence. The conduct of the convict was very serious and it has been substantiated on the record that he persisted with the demand of bribe and accepted the same. However, taking into account the health of the convict and other surrounding circumstances, convict Rajender Kumar Gupta is sentenced to SI for 3 years and fine of Rs.25,000/ in default SI for 6 months u/S.7 of POC Act, 1988 and SI for 3 years and fine of Rs.25,000/ in default SI for 6 months u/S.13(1)(d) r/w S.13(2) of PC Act, 1988.
Both the sentences shall run concurrently.
Benefit of section 428 Cr.P.C. be given to the convict. 5.0 A copy of judgment and order on sentence be given to the convict free of cost.
6.0 File be consigned to Record Room.
CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 84 of 78
Announced in Open Court (Dinesh Kumar Sharma )
on 04.06.2014 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 85 of 78
CC No.01/12 CBI Vs. Rajender Kumar Gupta RC No.5(A)/2009
04.06.2014
Present: Sh. S. Krishna Kumar, Ld. PP for CBI
Convict in person with Sh. GK Bharti, Advocate on behalf of Sh. Jugal Wadhwa, Ld. counsel for convict Arguments on the point of sentence heard.
Vide separate order on sentence, convict Rajender Kumar Gupta is sentenced to SI for 3 years and fine of Rs.25,000/ in default SI for 6 months u/S.7 of POC Act, 1988 and SI for 3 years and fine of Rs.25,000/ in default SI for 6 months u/S.13(1)(d) r/w S.13(2) of POC Act, 1988.
Both the sentences shall run concurrently.
Benefit of section 428 Cr.P.C. be given to the convict. A copy of judgment and order on sentence be given to the convict free of cost.
An application u/S 389 Cr.PC has been moved by the convict. Convict Rajender Kumar Gupta is granted bail on his furnishing a personal bond in the sum of Rs.20,000/ with one surety in the like amount till 04.07.2014.
Fine deposited.
File be consigned to Record Room.
(Dinesh Kumar Sharma ) Spl. Judge (PC Act) : CBI01 :04.06.2014 CBI Vs. Rajender Kumar Gupta CC No.01/12 Page 86 of 78