Delhi District Court
Cbi vs Mehroz Khan on 29 May, 2013
IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE,
PC ACT, CBIIII, ROHINI COURTS : DELHI.
CBI No.76/11
RC No.ACI/2005/A0006/SPE/ACUI/CBI/New Delhi
under Section 7 r/w 13 (2) R/w 13 (1) (d) P.C. Act, 1988.
CBI
Versus
Mehroz Khan
S/o. Late Sh. Noor Ahmed Khan
R/o 183/B, Street No.9,
Zakir Nagar,
New Delhi25. ... Accused
Date of institution of case : 15.12.2005
File received on transfer on : 10.05.2011
Date of reserving judgment : 10.05.2013
Date of pronouncement of judgment : 29.05.2013
JUDGMENT :
I. CASE OF THE PROSECUTION :
1. The case of the CBI, in brief, is that the case RC/ACI/ 2005, A 0006 was registered in CBI, Delhi branch on 12.09.2005 against the accused Mehroz Khan on the basis of written complaint received from Sh. Daya Ram Tyagi.
CBI Vs. Mehroz Khan Page 1 / 50
2. Shri Daya Ram Tyagi was working as a Civil Contractor with Delhi Development Authority (hereinafter referred to as the 'DDA'). In December, 2004, he was awarded a civil contract by South Eastern DivisionIX (hereinafter referred to as the 'SEDIX') of DDA for providing and fixing railing and arches outside water fountain, covering an open well etc. as part of development of Millenium Park located on the ring road between ISBT Sarai Kale Khan and Bhairon Marg. The value of the contract was Rs.1,47,000/ and the work was to be completed in one month. Till MarchApril, 2005, the complainant/contractor had completed part of the work worth Rs.50,000/ approximately.
3. The investigation revealed that a contract of value of over Rs.5,000/ monthly running bills were supposed to be passed and paid as per Clause 7 of Conditions of Contract. As per Clause 8 of the contract, engineers were responsible to prepare and pass the running bills if the contractor was unable to place the bill himself. However, the Sh. Daya Ram Tyagi was not made any part payment of work he had completed and the accused Mehroz Khan, the Junior Engineer, SEDIX, Khelgaon, DDA started showing reluctance in providing cement. It is alleged that the accused Mehroz Khan asked the complainant to get the bill prepared and passed for the entire work without completing it in lieu of payment of Rs.80,000/ as illegal CBI Vs. Mehroz Khan Page 2 / 50 gratification out of which Rs.50,000/ was to be paid in advance and remaining Rs.30,000/ after receiving the payment against the bills. Shri Daya Ram Tyagi made repeated requests to the accused to prepare his bills for the actual work done by him but in vain.
4. It is further alleged that subsequently on 29.8.2005 when Shri Daya Ram Tyagi again requested the accused Mehroz Khan to prepare his bill, the latter told him that Shri K. Maini, the Executive Engineer, had asked him to record the entire work in the Works Measurement Book for which Shri Daya Ram Tyagi would have to give Rs.50,000/ as illegal gratification including Rs.17,000/ as a share of Shri K. Maini. Since the complainant neither had the bribe amount nor was he willing to pay any illegal gratification, he met and requested Shri Maini on 30.08.2005 to instruct the accused Mehroz Khan to prepare bill without paying the bribe money. Complainant also recorded this conversation with Shri Maini on a hidden tape recorder. During the meeting, Shri K. Maini agreed to instruct the accused Mehroz Khan to prepare the bill. On 31.08.2005 the complainant again met the accused Mehroz Khan but the later persisted with the demand of payment of Rs.50,000/ as illegal gratification to be paid before the bill could be prepared. The complainant secretly recorded this conversation also between him and the accused Mehroz Khan. Thereafter, Shri Daya Ram Tyagi filed the CBI Vs. Mehroz Khan Page 3 / 50 aforesaid complaint dated 12.09.2005 with CBI. Shri Daya Ram Tyagi also produced the audio cassette containing the aforementioned conversations with Shri K. Maini and the accused Mehroz Khan which were scrutinized and a criminal case was registered on 12.09.2005 and was entrusted to Shri Surender Malik, Inspector, CBI for investigation.
5. It is further case of the prosecution that after registration of the case, a trap laying team consisting of CBI officers and two independent witnesses namely Sh. Y.S. Shiva and Shri Harish Kumar was constituted. Shri Daya Ram Tyagi arranged a sum of Rs.25,000/ consisting of 50 GC notes of Rs.500/ denomination each. The said GC notes were smeared with phenolphthalein powder. Shri Daya Ram Tyagi was directed to hand over the bribe money to the accused only on specific demand. A Digital Voice Recorder (in short 'DVR') was arranged to secretly record the conversation likely to take place between the complainant and the accused at the time of transaction of bribe. After completing some other pretrap formalities, the trap team proceeded to the spot i.e office of SED IX, DDA, Khelgaon, New Delhi at 4:20 p.m on 12.09.2005.
6. It is further stated that after reaching the aforementioned office Shri Daya Ram Tyagi was allowed to approach the accused Mehroz Khan alone. The trap laying team members along with both the witnesses took suitable positions outside the said office. For about CBI Vs. Mehroz Khan Page 4 / 50 half an hour Shri Daya Ram Tyagi and the accused Mehroz Khan remained together in and around the said office. Eventually, in front of branch of Vijaya Bank located in the same office premises, Shri Daya Ram Tyagi took out the tainted amount from his left side shirt pocket and handed it over to the accused Mehroz Khan who accepted the same with his left hand. At about 5:20 p.m Shri Daya Ram Tyagi came out of the room of the accused Mehroz Khan and flashed the pre arranged signal to the trap team. On receipt of the signal, the team of the CBI officers along with the witnesses rushed into the room of the accused Mehroz Khan and caught him red handed. The bribe amount of Rs.25,000/ was recovered from his left side trouser pocket. The said tainted amount of Rs.25,000/ was seized by Shri Surender Malik, Inspector. Thereafter, other formalities like taking washes of both the hands of the accused Mehroz Khan, seizure of trouser of the accused Mehroz Khan etc were conducted. The DVR was also taken from Shri Daya Ram Tyagi. The sanction of competent authority under Section 19 of Prevention of Corruption Act, 1988 (hereinafter referred to as the 'P.C. Act') against the accused was also accorded by competent authority. After competing the investigation and other necessary formalities, the chargesheet was filed in the Court of Special Judge, CBI, Delhi whereupon the accused was summoned and the copies of documents were supplied to the accused.
CBI Vs. Mehroz Khan Page 5 / 50
II. CHARGES FRAMED :
7. On the above allegations, charges were framed vide order dated 31.07.2007 passed by Ms. Indermeet Kaur Kochhar, Ld. Special Judge, CBI (as her Ladyship then was) against the accused Mehroz Khan for having committed offences punishable under Sections 7 & 13 (2) r/w 13 (1) (d) of the P.C. Act, 1988. Accused pleaded not guilty and claimed trial. He was accordingly put to trial.
III. PROSECUTION WITNESSES :
8. Trial proceeded and in the course of trial, the prosecution, in order to substantiate its case against the accused, examined twenty two witnesses in all who may be clubbed in five groups for convenience. The five groups are as here under :
(1) Raid Team Members - Prime Witnesses
(i) PW2 Daya Ram Tyagi (complainant)
(ii) PW3 Harish Kumar (independent witness)
(iii) PW4 Y.S. Shiva (independent witness)
(iv) PW17 Surender Malik (TLO)
(v) PW19 Vipin Kumar (CBI Official)
9. PW2 Sh. Daya Ram Tyagi is the complainant. He deposed that he was working as a government contractor in DDA and MCD. In the month of December 2004, he was awarded a civil contract at Millenium Park for fixing grill etc. The work was for an CBI Vs. Mehroz Khan Page 6 / 50 amount of Rs. 1,47,677/. He had completed part of the work to the tune of Rs. 45,000/. Accused Mehroz Khan told him that there is no need to complete the remaining work and he would pass the bill of the total amount for which he demanded Rs. 1 Lac as bribe. He refused to give money to the accused Mehroz Khan and met the executive engineer Sh. K. Maini. Since the accused Mehroz Khan insisted to pay the bribe, he recorded the conversation between him and the accused Mehroz Khan. He continued to contact the accused Mehroz Khan for getting his bill cleared but the accused was not ready to do the same without payment of bribe. Ultimately, the amount of bribe was settled as Rs.50,000/ and he (complainant) told him that he had only Rs. 25,000/ with him. After settlement of bribe amount, he lodged a complaint with CBI. He further deposed that on his complaint, the CBI officers requisitioned two independent witnesses who were made to hear the conversation recorded by him earlier which had taken place between him and the accused Mehroz Khan. He produced Rs.25,000/ before CBI Officers and phenolphthalein powder was applied to those currency notes. The said powder treated notes were kept in his pocket and he was directed to hand over those notes to the accused Mehroz Khan on his demand. Thereafter, they left for Khel Gaon where he was to meet the accused Mehroz Khan. He met the accused Mehroz Khan and told him that he has brought Rs.25,000/, as directed. Accused CBI Vs. Mehroz Khan Page 7 / 50 Mehroz Khan came outside of his office and they moved towards a nearby bank. He handed over the powder treated currency notes amounting to Rs.25,000/ to the accused Mehroz Khan on his demand and the accused Mehroz Khan after accepting the same, kept the currency notes in his right hand side pocket of his pant. He flagged a signal to other trap team members including the independent witnesses. Accused was apprehended by CBI officers. He was searched and money was recovered from the trouser pocket of the accused in the presence of independent witnesses. PW2 further deposed that the right hand fingers of the accused Mehroz Khan were put in a glass containing some solution. The solution turned into pink colour and the same was sealed in a bottle. Similarly washes of left hand were also taken which also turned into pink colour and it was kept in a separate sealed bottle. The trouser pocket wash was also taken which turned into pink colour and the same was kept in a sealed bottle.
PW2 was crossexamined by the Ld. PP for CBI on the ground that the witness was resiling from his previous statement. In his crossexamination by Ld. PP, PW2 admitted that the accused Mehroz Khan had demanded Rs.80,000/ as bribe without actually completing the work. He further admitted that the accused Mehroz Khan had demanded that the entire bribe of Rs.50,000/ be paid in CBI Vs. Mehroz Khan Page 8 / 50 advance but he (complainant) requested him to accept Rs.25,000/ in advance and the balance after receipt of payment. PW2 further testified that complaint Ex. PW2/A was written by Surender Malik, Inspector CBI on his dictation and, thereafter, it was read over to him and found to be correctly written. PW2 proved the letter by which he was allotted the work/contract as Ex. PW2/B; handing over memo in which number of GC Notes were recorded as Ex. PW2/D; tape recorder handing over memo as Ex. PW2/E; recovery memo as Ex.PW2/F and currency notes as Ex. P1 to Ex. P50. The cassettes were played in the Court and the PW2 identified his voice as well as voice of the accused in those cassettes.
During his crossexamination by accused, PW2 deposed that he cannot read English. He admitted that arches visible in photographs Ex.PW2/D2 & Ex.PW2/D3 were not fabricated by him. As per this witness, the arches were only installed by him and he was not aware as to who got those arches fabricated. He further testified that executive engineer had told him that he would get four arches fabricated which might cost about Rs.25,000/. PW2 further admitted that he was asked to pay for the amount of arches which would be adjusted against the actual cost. As per PW2, in the bill raised by him, fabrication cost of the arches were also added. He categorically denied that he had not made payment to the accused on the instruction of CBI Vs. Mehroz Khan Page 9 / 50 executive engineer towards fabrication cost of arches prior to the incident. He further categorically denied that on the day of trap, an amount of Rs.25,000/ paid to the accused was towards the fabrication cost of arches. He admitted that he had not stated before Investigating Officer (in short 'I.O.') that he had made payment of fabrication cost of arches to the accused at the instruction of executive engineer. PW2 admitted that cement was to be provided by the accused from DDA godown. However, he had not got any bag of cement issued from DDA through the accused for the purpose of using the same for installation of those arches. As per PW2, CBI officials were told that Rs.25,000/ was to be paid to the fabricator of the arches. However, he admitted that the fact of Rs.25,000/ payable to arch fabricator is not mentioned in his complaint Ex. PW2/A. PW2 denied the suggestion that he had not met the accused between 01.09.2005 to 11.09.2005. However, he admitted that during the said period the accused had been asking him to bring money payable to arch fabricator.
10. PW3 Harish Kumar deposed that he was working as manager in Punjab National Bank at Connaught Place, New Delhi. On 12.09.2005, he alongwith PW4 Y.S. Shiva visited the CBI office. The complaint Ex. PW2/A was given to them for going through the same. An audio cassette containing conversation of the complainant and the accused was played. A sum of Rs.25,000/ of Rs.500/ denominations CBI Vs. Mehroz Khan Page 10 / 50 each was produced by the complainant and their numbers were noted down. All the currency notes were treated with phenolphthalein powder. A practical demonstration about the reaction was given to them. The said GC Notes smeared with powder were kept in upper left side pocket of the shirt of the complainant. The complainant was directed not to hand over the said money untill the same is specifically demanded by the accused. Sh. Y.S. Shiva, the other independent witness, was asked to remain close to the complainant during the trap proceedings whereas he (PW3) was asked to remain close to trap party. A DVR and an audio recorder with cassette were arranged. His voice as well as voice of Y.S. Shiva were recorded in the audio cassette. The said DVR was handed over to complainant with direction to record his conversation with the accused which was to happen in the DDA office, Khel Gaon, Delhi. On reaching the spot, the complainant apprehended that if witness Y.S. Shiva remained with him, then the accused might suspect and some problem might arise. The complainant went to the office of the accused all alone without accompanying the shadow witness Y.S. Shiva. Both, the complainant and the accused, came out from the office after five minutes. They again entered the office. After sometime they both came out of the office and proceeded towards Mother Dairy Booth near Vijaya Bank. They returned back from the said place to the office of the accused CBI Vs. Mehroz Khan Page 11 / 50 Mehroz Khan and, thereafter, while coming out alone from the office of the accused, complainant gave a predetermined signal to the trap party. On receiving the signal, the entire trap team entered the office and accused Mehroz Khan was caught by inspector Surender Malik from his right wrist whereas his left wrist was caught by inspector Vipin Kumar. The accused got perplexed and lost consciousness and the water was sprinkled on his face. On regaining consciousness, the accused accepted that the bribe money was taken by him from the complainant. The personal search of the accused was taken and bribe amount of Rs.25,000/ was recovered. The right and left hand fingers of the accused were dipped in a solution separately. The solution which was colourless turned into pink colour. The piece of the cloth of left pocket from where the bribe amount was recovered was also taken out and the same was dipped into a colourless solution. On doing so, it turned into pink colour. The trouser of the accused was seized. The DVR which was given to the complainant in the pretrap proceedings was taken back and the conversation recorded in the said DVR was transferred into blank audio cassettes. The witness identified the bottles as Ex.PW4/A to Ex.PW4/C; left side pocket of the trouser of the accused as Ex.PW4/D; a khaki colour envelope in which trouser of grey colour of the accused was seized as Ex.PW4/E; arrest and personal search of the accused as Ex.PW4/F and site plan as CBI Vs. Mehroz Khan Page 12 / 50 Ex.PW4/G. During his crossexamination, PW3 admitted that the complainant had not reported to the CBI that iron arches were got prepared by the accused from one of his known person. He further admitted that the complainant did not report to the CBI that the payment for the said arches is to be made by the complainant to the accused. PW2 denied the suggestion that he was not a witness of raid and his deposition in the Court was based on the briefing received by him from CBI officials.
11. PW4 Y.S. Shiva has corroborated the testimony of PW3 Harish Kumar in his examination in chief.
During his crossexamination, PW4 admitted that the complainant alone had gone to DDA office on the day of incident. He further admitted that neither he nor CBI officials, who were outside the DDA office, knew the details of the persons whom the complainant met after entering the DDA office.
12. PW17 is Surender Malik, inspector CBI to whom the complainant made a complaint on 12.09.05 which was reduced in writing by PW17 and, thereafter, the trap was laid and the accused was apprehended. He has corroborated the testimonies of PW2, PW3, PW4 and PW19.
During his crossexamination, PW17 testified that CBI Vs. Mehroz Khan Page 13 / 50 complainant had told him about the recording of the conversation in the cassette on 30.08.2005 and 31.08.2005. As per PW17, complainant had told him that he did not make the complaint during the intervening period (i.e. period between 30/31.08.2005 and 12.09.2005) as he was not having the money for paying to the accused as bribe. He admitted that the shadow witness did not accompany the complainant to the office of the accused. As per PW17, a case was registered against K. Maini but he was not apprehended as there was no sufficient evidence to arrest him.
13. PW19 Vipin Kumar, a CBI Officer, was a member of the raiding team and he has corroborated the testimonies of PW2, PW3, PW4 and PW17 (TLO).
During his cross examination, PW19 could not tell whether the name of Mr. Maini was mentioned in the complaint Ex.PW2/A or not. He testified that no enquiry was made by him from Mr. Maini at the spot.
(2) Witnesses to Voice Recording
(i) PW6 Vivek Kakkar
(ii) PW13 V.K. Rajora
(iii) PW14 Sanjeev Chopra
(iv) PW16 A. D. Tiwari
14. PW6 is Vivek Kakkar who was called by CBI to be made CBI Vs. Mehroz Khan Page 14 / 50 a witness of the proceedings in this case. He testified that on 09.11.2005 he was posted at Service Tax branch, CGO Complex, Lodhi Road, New Delhi. He was called by the CBI officer and sample voice of K Maini was taken in a blank cassette. The cassette was marked as S1 and was kept in a sealed envelope. In another blank cassette S2, sample voice of the accused was recorded. The cassette S2, thereafter, was sealed in an envelope. Similarly, in third blank cassette S3, the sample voice of Dayaram Tyagi was recorded and the same was sealed in an envelope. PW6 identified the specimen voice of the accused Mehroz Khan in cassette (S2) Ex. PW6X and of complainant Dayaram Tyagi in cassette S3.
During his crossexamination, PW6 testified that he was not told that the accused was informed that his specimen voice could be used against him in the Court of law.
15. PW13 V K Rajora is an independent witness who was working as Inspector at Central Excise Office at the relevant period. He has corroborated the testimony of PW6.
During his crossexamination, PW13 denied the suggestion that no sample voice of the accused was recorded in his presence.
16. PW14 Sanjeev Chopra was posted as junior engineer in Sub Division III of SEDIX of DDA. He testified that the accused was CBI Vs. Mehroz Khan Page 15 / 50 working as Junior Engineer in SEDIX. The complainant Daya Ram Tyagi was a civil contractor who used to take contracts from their department. He identified the voices of the complainant and the accused in the cassette Ex. PX.
During his crossexamination, PW14 testified that he had never heard the tape recorded voices of the complainant and the accused at any point of time. He denied the suggestion that there is a difference in the tape recorded voice and the actual voice of a person.
17. PW16 AD Tiwari has corroborated the testimonies of PW6 Vivek Kakkar and PW9 VK Rajora.
During his crossexamination, PW16 denied the suggestion that no voice of the accused was ever recorded in the cassette or that the cassettes produced in the Court did not contain the voice of the accused.
(3) Scientific Experts
(i) PW15 P. Nath (Chemical Examiner's Report on Washes)
(ii) PW18 Deepak Kumar Tanwar (Voice Expert)
(iii) PW22 Dr. M. A. Ali ( Handwriting Expert)
18. PW15 P. Nath, retired Senior Scientific Officer, deposed that all the three washes gave positive tests for the presence of Phenolphthalein and Sodium Carbonate. He proved his report CBI Vs. Mehroz Khan Page 16 / 50 regarding the washes as Ex. PW 15/B. It is pertinent to mention here that the accused has not disputed recovery of the Phenolphthalein treated money from his trouser pocket during raid.
19. PW18 is Deepak Kumar Tanwar who examined the voices of complainant and the accused. According to him, questioned voices of K Maini, accused Mehroz Khan and complainant are the probable voices of these persons when examined with their specimen voices Mark Ex. S1(A), Mark Ex. S2 (A) and Mark Ex. S3 (A) respectively. He proved his detailed report in this regard as Ex. PW18/B. During his crossexamination, PW18 admitted that there is no mention about sending any transcripts of the conversations available in cassettes A, A1, S1, S2, S3 in Ex. PW18/A. He testified that he did not prepare any transcript or copy of the audio cassette as requested in Ex. PW18/C. He admitted that his report Ex. PW1/B does not give details about the name of person who prepared the copy of audio cassette A and A1. He further admitted that Ex. PW18/B is a photocopy of report which is attested by Gautam Roy with date 24.09.2010. He denied the suggestion that the manner in which the attested photocopy report was provided to SP, CBI after 5 years approximately from the date of report, it reflects that the report is a fabricated one.
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PW18 was reexamined by Ld. PP. He testified that two copies of Ex. PW18/B were prepared, their print outs were taken simultaneously and both were signed in original.
20. PW22 M A Ali is the Handwriting Expert. He proved his report as Ex.PW22/A. His testimony could not be shaken during his cross examination.
(4) Witnesses from DDA
(i) PW5 Om Prakash (entries in Works Measurement Book)
(ii) PW7 Lalit Mohan (tendercontract)
(iii) PW8 B. N. Pandey
(iv) PW9 Rajpal Singh
(v) PW10 Ishtaq Lal Ahmad
(vi) PW11 Brijender Singh Pahil
21. PW5 Sh. Om Prakash was working as junior engineer in DDA. He deposed that Works Measurement Book (D18) of DDA was issued to him on 11.09.2000. He identified his handwriting and signatures at page no. 61 of the said book as Ex. PW5/A. He also proved the entries at page no. 62 to 66 in the said book relating to completion certificate. He further proved the format of completion certificate as a part of said book as Ex. PW5/B which was written by him at the request of the accused.
CBI Vs. Mehroz Khan Page 18 / 50
During his crossexamination, PW5 confirmed that the said book pertained to the work of development of Millenium Park on the Ring Road between ISBT, Sarai Kale Khan and Bharion Road.
22. PW7 Lalit Mohan, Executive Engineer of DDA, has deposed regarding the procedure adopted by DDA for awarding the work to any contractor. As per PW7, when any work of the DDA is to be executed, first of all, viability of the work is considered subject to financial sanction to meet that work. Thereafter, estimate of the work is prepared and tenders are called. The work is awarded to the eligible and lowest tender. PW7 also deposed that about the procedure adopted by the DDA while clearing the bills of contractor.
During his crossexamination, the creditability of PW7 could not be shaken. It is pertinent to mention here that contract awarded to complainant has not been disputed by the accused in his statement under Section 313 Cr.P.C.
23. PW8 Sh. B N Pandey, who was working as Mate in DDA and used to look after correspondence work, proved the entry in the Peon Book regarding dispatch of the letter bearing No. 1440 to M/s R.A. Builders on 03.03.2005 as Ex.PW8/A. PW8 deposed that the said letter was received by the representative of M/s R.A. Builders.
During his crossexamination, the creditability of PW8 could not be shaken. It is pertinent to mention here that contract CBI Vs. Mehroz Khan Page 19 / 50 awarded to complainant has not been disputed by the accused in his statement under Section 313 Cr.P.C.
24. PW9 Raj Pal Singh, who was working as Assistant Engineer, proved the file pertaining to development of Millennium Park as Ex.PW9/A; first award letter to Chaudhary Ikpal Singh (contractor) as Ex.PW9/A1. As per PW9, the first contractor did not execute the work and, consequently, tenders were reinvited. PW9 proved the notice reinviting the tenders as Ex.PW9/A2; noting stating six tenders having been received in the file as Ex.PW9/A3; noting by which M/s R. A. Builders was approved for the work being the lowest tender as Ex.PW9/A4. PW9 also proved the letter dated 02.03.2005 issued by Sh. K Maini to M/s R. A. Builders to complete the work as Ex.PW9A5 and another letter dated 06.04.2005 as Ex.PW9/A6. PW9 also proved the seizure memo dated 25.10.2005 as Ex.PW9/A7 vide which original agreement dated 20.12.2004 executed between DDA and M/s R.A. Builders was handed over to CBI.
During his crossexamination, PW9 testified that M/s R.A. Builders was warned in writing if it does not complete the work within 7 days from the issue of the letter, then the work would be got completed by some other agency at its risk and costs. It is pertinent to mention here that contract awarded to complainant has not been disputed by the accused in his statement under Section 313 Cr.P.C. CBI Vs. Mehroz Khan Page 20 / 50
25. PW10 Istaq Lal Ahmad was working as Assistant Supervisor and used to sit on a sit adjacent to that of accused Mehroz Khan at the relevant period. PW10 deposed that contractors of DDA used to visit the office of DDA to meet accused Mehroz Khan and others. On 12.09.2005 Sh. Daya Ram Tyagi came to office and met Mehroz Khan. Thereafter, accused Mehroz Khan and Shri Daya Ram Tyagi went outside the room. After few moments, they came back and remained for sometime in the office. PW10 has corroborated the testimony of PW2 Dayaram Tyagi with respect to recovery of Rs. 25,000/ from accused Mehroz Khan in the trap laid by the CBI. He proved the productioncumseizure memo dated 14.09.2005 of documents as Ex.PW10/A, Ex.PW10/B & Ex.PW10/C respectively; arrestcumpersonal search memo of accused Mehroz Khan as Ex.PW4/F. PW10 after going through the record deposed that no payment was made to the contractor M/s R. A. Builders.
During his crossexamination, PW10 testified that complainant was duty bound to seek release of cement from DDA for the work awarded to him. He, after going through the register Ex.PW10/A, admitted that twenty bags of cement were received by the accused for the purpose of installation of iron grills by the complainant but no cement was issued to the complainant. He further deposed that on the day accused was arrested, complainant came to the CBI Vs. Mehroz Khan Page 21 / 50 office and in his presence told the accused that he wanted to settle and pay the amount payable to Iron Grill Fabricator. The grill was got fabricated from private iron fabricator.
26. PW11 Brijender Singh Pahil who was posted as Assistant Engineer in DDA at the relevant time, handed over files to CBI which were seized by the CBI vide memo Ex.PW10/A. He is a formal witness.
(5) Others
(i) PW1 Dinesh Ray (sanctioning authority)
(ii) PW12 Rakesh Soni (call details - MTNL)
(iii) PW20 T.P. Singh (Investigating Officer)
(iv) PW21 Virender Mohan Mittal (dropped)
27. PW1 Sh. Dinesh Rai, Vice Chairman of DDA deposed that on 13.12.05 sanction for prosecution of accused Mehroz Khan, the then junior engineer, SEDIX, DDA, New Delhi was accorded by him. He proved the sanction order dated 13.12.2005 against the accused Mehroz Khan as Ex.PW1/A. During his crossexamination, PW1 denied the suggestion that he had not applied his mind or had accorded sanction mechanically. He further denied the suggestion that the draft sanction order was sent to him by the CBI.
28. PW12 Rakesh Soni proved the letter dated 28.11.2005 as CBI Vs. Mehroz Khan Page 22 / 50 Ex.PW12/A and call details of mobile number issued in the name of accused Mehroz Khan for the period w.e.f 10.9.2005 to 12.09.2005 as Ex.PW12/A. He is a formal witness.
29. PW20 T P Singh is the I.O. of the case and has testified in detail the investigation carried out by him. His testimony could not be shaken during his cross examination.
30. PW21 Virender Mohan Mittal was dropped by the prosecution.
IV STAND OF ACCUSED UNDER SECTION 313
CR.PC AND DEFENCE EVIDENCE :
31. The statement of accused Mehroz Khan under Section 313 Cr.PC was recorded when a chance was given to explain the incriminating evidence against him. Accused denied the case of the prosecution in its entirety and claimed that he has been falsely roped in the present case. As per accused Mehroz Khan, a false complaint was lodged by the complainant. He had not demanded any bribe from the complainant. He was falsely apprehended by the raiding team. The money was not received by him as a bribe. Accused claimed it to be a matter of record that M/s R. A. Builder was awarded a contract and the cost of awarded work was Rs.1,47,677/. However, he pleaded that M/s R. A. Builder was informed vide letter dated 06.04.2005 that no extension of time would be granted to complete the work and a CBI Vs. Mehroz Khan Page 23 / 50 warning was also issued if the work was not completed within seven days from the issue of the letter, then the work would be got done from other agency. It is further pleaded that the complainant is an accomplice in the eyes of law. CBI Officials were interested in the success of the case and have deposed due to fear of departmental action.
In his defence, accused has examined Sh. Aas Mohammad as DW1. DW1 testified that the complainant was awarded civil contract by DDA in March, 2005 for constructing four arches. Those four arches were fabricated by him for the complainant. He used to get his payment after the bill was prepared and submitted by the contractor in the DDA. His payment of Rs.25,000/ for the fabrication of four arches was to be made by the complainant through accused after the passing of the bill. He had demanded the said payment on many occasions from complainant but he used to say that payment would be made after the bills were passed.
During his cross examination, DW1 denied the suggestion that he had not fabricated the arches as shown in the Ex.PW2/D2 and Ex.PW2/D3. DW1 admitted that he testified in the Court on the asking of accused and he had no personal knowledge about the present case. He denied the suggestion that he had deposed falsely at the behest of the accused.
CBI Vs. Mehroz Khan Page 24 / 50
32. I have heard Dr. Padmini Singh, Ld. PP for CBI and Sh.Harsh Sharma, Ld. Counsel for the accused. I have perused the case file.
V CONTENTIONS OF THE CBI & THE ACCUSED :
33. Ld. PP for CBI contended that as the accused has admitted receipt of the tainted amount of Rs.25,000/ and recovery thereof from his possession, not much is required to be stated about proceedings conducted by the Trap Team during pretrap stage or the post trap proceedings. Ld. PP, however, took the court through the testimony of the complainant PW2 and submitted that he had supported the case of the prosecution in totality and that his unshaken testimony duly proved the fact that the accused had demanded money from the complainant for preparing his bill to benefit the complainant to get his entire dues without completing the work. It was submitted that the accused was posted as JE in DDA and, as such, accused was in control of preparing the bill of the accused. It was further pointed out that a vain attempt was made by the accused to claim that the amount handed over to him by the complainant was towards the fabrication of iron arches. As per Ld. PP, the recorded conversation as heard in court and the transcripts made it clear that there was no conversation whatsoever between the complainant and the accused regarding the complainant handing over the money for the payment of arch CBI Vs. Mehroz Khan Page 25 / 50 fabrication to the accused. It was submitted that the entire conversation revolved around "preparation of bill" for which accused had demanded an amount of Rs.50,000/ in total and had accepted Rs.25,000/ from the complainant on the day of incident. It was further submitted that as there are no material contradictions in testimonies of the witnesses, the accused is liable to be convicted for the offences charged with. In support of her contentions, Ld. PP for CBI has relied upon judgments - S Pratap Singh Vs. State of Punjab, AIR 1964 SC 72; Yusufalli Esmail Nagree Vs. State of Maharashtra, AIR 1968 SC 147; Ram Singh Vs. Col. Ram Singh, AIR 1968 SC 3 and Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra, AIR 1975 SC 1788.
34. Rebutting, it was contended by Ld counsel for the accused that the recovery of amount of Rs.25,000/ from the possession of accused is not disputed. According to him, the moot question in the present case is whether the aforesaid amount accepted by the accused was for legitimate purpose or for illegitimate purpose. The accused had accepted the amount of Rs.25,000/ from the complainant as he had to pay for the cost of arch fabrication and, as such, it cannot be said that accused has committed an offence. Further, the complainant PW2 Daya Ram Tyagi has resiled from his previous statement which CBI Vs. Mehroz Khan Page 26 / 50 casts a doubt in the story of prosecution. It has come in the testimony of PW2 that he cannot read English. The complaint Ex.PW2/A is in Hindi on the basis of which the FIR was registered. The said complaint was recorded by PW17 Surender Malik (TLO). Thereafter, all other documents were prepared by the I.O. which are in English language. The said documents prepared by the prosecution are, therefore, doubtful. Ld. Counsel for the accused further contended that it has come in evidence that no cement was got issued by the complainant and, as such, the question of preparation of bill does not arise. The complaint Ex.PW2/A bears the signatures of the complainant. The same is hit by Section 162 Cr.P.C and, thus, it cannot be read in evidence. According to Ld. Counsel, there are contradictions in the testimonies of PW2, PW3, PW4 and PW17. There is nothing on record to suggest on what basis transcriptions were prepared after the cassettes were sent to CFSL for examination. The DVR was an important piece of evidence but the same was not produced in the Court. The contents of the DVR were transferred to the cassettes and there is likelihood that its contents were manipulated while transferring to falsely implicate the accused as selected voices of the incident might have been chosen for transferring the same to the cassette. Ld. Counsel further contended that there is no explanation from the side of CBI as to on what basis Mr. K. Maini was left and CBI Vs. Mehroz Khan Page 27 / 50 was not made an accused in the present case. As per PW2, Mr. K.Maini was arrested but the chargesheet mentions that he was not arrested by the CBI. Thus, it is a clear case of faulty investigation by the CBI. Next, Ld. Counsel contended that during trap proceedings it was decided that PW4 Y.S. Shiva would accompany the complainant to meet the accused but at the last moment he was asked to stay back by the complainant. Ld. Counsel further contended that the testimony of PW18 Deepak Kumar Tanwar is not admissible in evidence as he was not an expert in voice spectrography. Lastly, Ld. Counsel contended that the voice expert's report Ex.PW18/B is otherwise not admissible as the original of the same was not produced in the Court. The said report was not filed with the chargesheet in the Court. Later on, an application was moved by the CBI to place the same on record after a lapse of 4 years. There is no explanation from the side of CBI as to why the original report was not produced in the Court. The report Ex.PW18/B being a secondary evidence cannot be considered by the Court. Ld. Counsel contended that the accused has been falsely implicated, he deserves to be acquitted. In support of his contentions, Ld. Counsel has relied upon judgments - M. Abbas Vs State of Kerala, JT 2001(4) SC 92 and Nilesh Dinkar Praradkar Vs. State of Maharashtra, 2011 VII AD (S.C.) 10.
35. In her reply arguments, it was contended by Ld. PP that CBI Vs. Mehroz Khan Page 28 / 50 nothing was brought on record by the accused even to probablise his defence. Further, no plausible explanation has been put forward by the accused as to why the complainant would get him falsely implicated in this case. According to Ld. PP, accused cannot claim that a fair trial has been denied to him because the voice expert's report was misplaced by the prosecution. As per PW18, two copies of report Ex.PW18/B were prepared after the examination of concerned voices and their printout were taken simultaneously and signed in original. According to Ld. PP, an application dated 02.12.2010 filed by the CBI for placing on record Ex.PW8/B was allowed by the Court and a further opportunity was granted to the accused to again cross examine PW18. Ld. PP contended that the said report cannot be said to be manipulated one and, as such, there is no miscarriage of justice.
VI EVALUATION OF EVIDENCE AND FINDINGS :
36. This Court has given consideration to arguments advanced and has also perused the record.
37. The acceptance of tainted amount of Rs.25,000/ has been admitted by the accused and recovery of the said amount is also not in dispute. That being the position, formalities observed during pretrap proceedings like treating the currency notes with Phenolphthalein Powder or the demonstration given in CBI Office and other formalities of trap need not be gone into by this Court. CBI Vs. Mehroz Khan Page 29 / 50
38. It has been held in Gopal Singh Vs. CBI, ILR (2005) II Delhi 35, that presumption under Section 20 of the Prevention of Corruption Act arises as soon as money, which is not legal remuneration, is received by a public servant and shifts the burden upon accused to show that the amount received by him was not illegal gratification.
39. It has been held by our Delhi High Court in Ramesh Vs. State, 1986 Crl. L.J. 1101, that in order to raise the presumption against the accused under Section 7 of P.C. Act, what the prosecution has to prove is that the accused had received a gratification and that amount received was not legal remuneration. It was further held that once the presumption is drawn, it is for the accused to prove that the gratification received by him was not illegal or meant as a motive or reward for any favour shown to the bribe giver. It was observed that the words "unless the contrary is proved" mean that the presumption raised has to be rebutted by proof and not by some explanation which might be merely plausible. It has been held by Apex Court in V.S. Jhingan Vs. Chatur Das, 1966 Crl. L.J. 1357, that the burden which rests on the accused to displace the presumption is to be discharged by bringing on record evidence - circumstantial or direct, which establishes in reasonable probability that the money was accepted by CBI Vs. Mehroz Khan Page 30 / 50 the accused other than as a motive or reward.
40. Section 7 & Section 13 (1) (d) of P.C. Act read as under:
Section 7 Public servant taking gratification other than legal remuneration in respect of any official act. Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Section 13. Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct,
(a) ...
(b) ...
(c) ...
(d) if he
i. by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or ii. by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest;CBI Vs. Mehroz Khan Page 31 / 50
41. Coming back to facts of the case, what was pleaded by the accused was that the amount of Rs.25,000/ received by him from the complainant was infact payment to be made by him (complainant) to the arch fabricator through the accused. This has been the consistent stand of the accused which he took while giving suggestions to prosecution witnesses. However, no such specific plea was taken by him in his statement recorded under Section 313 Cr.P.C. and it has only been claimed that Rs.25,000/ accepted by the accused was not the bribe money.
42. A perusal of the Transcripts and hearing the recorded conversations also reveals that there is nothing on record to show that the accused had demanded the amount of Rs.25,000/ for the arches got fabricated from a private fabricator. In S. Pratap Singh Vs. State of Punjab (supra), a five judges bench of Apex Court has held that the tape recorded talks are admissible in evidence and the simple fact that such type of evidence can easily be tampered with certainly could not be a ground to reject such evidence as inadmissible. In this case the tape record of the conversation was admitted in evidence to corroborate the evidence of witnesses who had stated that such a conversation had taken place. In Yusufalli Esmail Nagree Vs. State of Maharashtra (supra), at the instance of the investigating agency, CBI Vs. Mehroz Khan Page 32 / 50 the conversation between the accused, who wanted to bribe, and the complainant was tape recorded. The Apex Court after examining the entire issue in the light of various pronouncements laid down the following principles - (a) The contemporaneous dialogue, which was tape recorded, formed part of resgestae and is relevant and admissible under Section 8 of Indian Evidence Act; (b) One of the features of magnetic tap recording is the ability to erase and reuse the recording medium. Therefore, the evidence must be received with caution. The Court must be satisfied beyond reasonable doubt that the record has not been tampered with; (c) The contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 7 of the Indian Evidence Act; (d) Such a statement was not in fact a statement made to police during investigation and, therefore, cannot be held to be inadmissible under Section 162 of Cr.P.C. and (e) Such a recorded conversation though procured without the knowledge of the accused but the same is not elicited by duress, coercion or compulsion nor extracted in an oppressive manner or by force or against the wishes of the accused. Therefore, the protection of the Article 20(3) of the Constitution of India was not available. In Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra (supra), the Apex Court considered the value and use of such transcripts and expressed the view that transcripts could be used to show what the CBI Vs. Mehroz Khan Page 33 / 50 transcriber has found recorded there at the time of transcription and the evidence of the makers of the transcripts is certainly corroborative because it goes to confirm what the tape record contained. The Apex Court also made it clear that such transcriptions can be used by a witness to refresh his memory under Section 159 of Indian Evidence Act and their contents can be brought on record by direct oral evidence in the manner prescribed by the Section 160 of Indian Evidence Act. The Apex Court pronounced that the use of tape recorded conversation was not confined to the purpose of corroborating and contradiction only but when duly proved by satisfactory evidence of what was found recorded and in absence of tampering, it could, subject to the provisions of Indian Evidence Act, be used as substantive evidence. Reference be made to judgments Ram Singh (supra) and R. M. Malkani Vs. State of Maharashtra, AIR 1973 SC 157, two most landmarks and often quoted judgments on the subject.
43. As per the case step up by the CBI, when the complainant had come to the office of CBI on 12.09.2005, pretrap proceedings were completed and PW3 Harish Kumar & PW4 Sh. Y. S. Shiva, both independent witnesses, were made members of raiding party. The complainant was also handed over one DVR so that he could record spot conversation between him and the accused. The CBI Vs. Mehroz Khan Page 34 / 50 conversation, which took place in the office of accused, was recorded by the complainant on said DVR and the recording, as appearing in DVR, was transfered to audio cassette at the spot. Ld. PP has immensely relied upon said tape recorded conversation and contended that said conversation clinches the issue and clearly reveals that accused had indulged in the conversation with the complainant and demanded the bribe for the preparation of the bills and the bribe money was also accepted by him. The transcription of the said conversation in the office of the accused on 12.09.2005 has been proved as Ex.PW14/B. In the beginning, it contains introductory voices of PW3 Harish Kumar & PW4 Y. S. Shiva and, thereafter, there is spot conversation.
44. The conversation, on cassette, was played when the complainant (PW2 Daya Ram Tyagi) graced the witnessbox on 18.09.2008. There is scientific evidence on record which shows that the abovereferred cassette contains the voices of the complainant and the accused. The specimen voices of accused and the complainant were taken and were sent to CFSL and using auditory and voice spectographic technique, Deepak Kumar Tanwar PW18 came to the conclusion that the questioned voices tallied with the specimen voices in respect of their linguistic, phonetics and other general spectrographic parameters and, therefore, conversation appearing in CBI Vs. Mehroz Khan Page 35 / 50 the cassette contain voice of none other than accused and, as such, recorded conversation clearly indicates that the accused had made the demand and had accepted money also.
45. I have gone through the transcriptions Ex.PW14/A and Ex.PW14/B and have heard recorded conversation. There was a demand of bribe amount by the accused. As per transcript Ex.PW14/A Page 4 at point X 29, the complainant Daya Ram Tyagi asked accused "Pachis Hazaar Me Bill Ban Jayega, Fir toh nahi kahoge"
to which accused replied at point A 26 "Ban to Jayega, Bill Jayega Nahi". The specific demand by the accused stands proved as per Ex.PW14/A Page No.6 wherein it is mentioned at point A39 "aap Pacchis De Do Kal", and at point A40 "Fir Reh Jayenge Pacchis"
as the words uttered by the accused. Accused further stated at point A45 on the said exhibit "AE ke de do matlab jo zid me aa jaye uske de ke pichha chhoda lo, baki ke dekhenge baad me". It shows that the accused was reluctant to waive off his illegal demand of bribe to pass the bill of the complainant. The voice of accused was identified in the Court by the complainant PW2 Daya Ram Tyagi as well as by PW14 Sanjeev Chopra. The conversations between accused and complainant were identified by the complainant and PW14 Sanjeev Chopra during their deposition in the Court when the cassettes were played. Thus, the identification of the voices by the complainant of himself and of CBI Vs. Mehroz Khan Page 36 / 50 accused stands corroborated by independent witness PW14 Sanjeev Chopra as well as by CFSL Expert PW18 Deepak Kumar Tanwar.
46. No doubt, PW10 Ishtaq Lal Ahmed in his cross examination has testified that on the day the accused was arrested, the complainant came to accused in his presence and told him that he wanted to settle and pay for the amount payable to iron fabricator. However, there is no such conversation in the cassettes produced by the prosecution. The testimony of PW10 in this respect is not trustworthy and it appears that PW10 has stated so to help his colleague/accused.
47. In that view of matter, the accused has been unable to discharge the onus that was shifted upon him and had failed to rebut the presumption by any plausible explanation what to say about proof. In the present case, as already mentioned hereinabove, acceptance of the tainted amount and recovery thereof is not disputed by the accused. The accused has not alleged anything against complainant or CBI Officials to have falsely implicated him in the present case. No reason has been put forward by the accused as regards his false implication at hand of the complainant. It is highly improbable that without any reason, the complainant or CBI Officials would have falsely implicated the accused in the present case. A pedantic approach rejecting the evidence of a complainant simply on the premise that he CBI Vs. Mehroz Khan Page 37 / 50 was aggrieved by the conduct of the accused in not preparing his bills for the part work done would only help corrupt officials getting insulated from legal consequences.
48. This Court is well aware of the fact that in a recent pronouncement Mukut Bihari Vs. State, AIR 2012 SC 2270, it has been held by Supreme Court of India that demand of illegal gratification is sine qua non for constituting an offence under P.C. Act and that mere recovery of tainted money is not sufficient to effect the accused when the substantive evidence in the case is not reliable unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. It was further observed that while invoking the provisions of Section 20 of the P.C. Act, the Court is required to consider the explanation offered by the accused, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubts. However, as already discussed hereinabove, facts of the present case are on a different pedestal. In this case, nothing exists to doubt the substantive evidence of the complainant and the accused has failed even to probablise his defence. Only a bald explanation has been given by the accused regarding the complainant paying him money towards arch fabrication, but this explanation by itself is neither sufficient nor plausible in the facts and circumstances of the present case. It may be CBI Vs. Mehroz Khan Page 38 / 50 reiterated that sufficient opportunity was granted to the accused to lead his defence and the accused infact has examined one witness in his defence. However, DW1 has testified "mujhe payment contractor se milti thi jo mujhe bill pass hone ke baad Sh. Mehroz Khan dilwate the". As per DW1, he knew complainant as well as accused and had demanded payment from the complainant on many occasions for the arches. It was not suggested to PW2 during his cross examination that arches were to be got fabricated from private fabricator namely DW1 Sh. Aas Mohammad. Thus, it seems that DW1 was later on introduced in this case by the accused to save himself.
49. During the course of his arguments, Ld. Counsel for accused has raised certain contentions, as highlighted in para no. 34 hereinabove, which I proceed to decide in seriatim. The contention of Ld. Counsel for accused that PW2 has resiled from his previous statement and there are contradictions in the testimonies of witnesses which cast a serious doubt in the story of the prosecution is without any merit. PW2, on his cross examination by Ld. PP, testified that accused had demanded Rs.80,000/ from him without actually completing the work. PW2 testified that the accused was demanding Rs.1,00,000/ from him for which he lodged a complaint against the accused and for the said stand he was confronted by Ld. PP with his statement Ex.PW2/C wherein the factum of demand of Rs.1,00,000/ CBI Vs. Mehroz Khan Page 39 / 50 was not so recorded. However, the said contradiction is of minor nature and does not go to the root of the case. Though not referred to or relied upon, our Delhi High Court speaking through Hon'ble Mr. Justice Sanjeev Khanna in judgment Ram Chander Singh Vs. CBI, Crl. Appeal No. 82 & 75 of 2002 decided on 02.11.2010 has held in Para 4 as under :
"Even though there may be variance, exaggeration, embellishments or inconsistencies in the statement of the witnesses, rejection in entirety is not justified unless it affects the core of the prosecution case. It has to be examined whether established material and evidence assists the court to act in a reasonable manner to establish the existence of the facts alleged by the prosecution. Whether the said evidence would induce a reasonable man to reach a particular conclusion? The probative value of the proved circumstances must be considered with due regard to ordinary human conduct and on a pragmatic and realistic approach. The entire evidence in totality has to be taken into consideration. Evidence is not to be considered in isolation but total cumulative effect of all proved circumstances has to be considered. If the evidence on the whole is found credible after careful analysis and all the proved circumstances each of which reinforces the conclusion of quilt, the said evidence may be relied upon to form the basis of conviction.
(Emphasis supplied)
50. Merely because PW2 cannot read English, it cannot be assumed that documents prepared in English by PW17 Surender Malik (TLO) are doubtful. The entries in Works Measurement Book CBI Vs. Mehroz Khan Page 40 / 50 have been proved to be made by PW5 Om Prakash Pal showing that the entire work awarded to the complainant had been completed by him. As per PW2, accused was demanding bribe for clearing the bills even without completion of work by the complainant. Thus, the contention of the accused that no cement was got issued by the complainant and, as such, the question of preparation of bill does not arise is without any merit.
51. The signed complaint Ex.PW2/A made to the CBI officer cannot to be said to be hit by Section 162 Cr. P.C. In an anti corruption case when the first information is given for arranging a trap and a case is registered after recording the information, the offence does not take place and, hence, investigation cannot start because investigation involves ascertainment of the offence and offender. Without an offence and the offender, there is no investigation at all. Therefore, statement Ex. PW2/A does not come within the ambit of statement made to the police officer as contemplated in Section 162 Cr.P.C attracting the prohibition against signature.
52. The contradictions in the testimonies of PW2, PW3, PW4 and PW17 are minor in nature. The contents of the DVR were transfered to the cassettes and merely for the said reason it cannot be assumed that its contents were manipulated. Though initially complaint was lodged against Mr. K. Maini but he was neither arrested CBI Vs. Mehroz Khan Page 41 / 50 nor chargesheeted as no primefacie case was found against him. Though PW2 has testified that Mr. K. Maini was arrested but the said fact is contrary to record and such a contraction is of minor nature.
53. It is true that during trap proceedings it was decided that PW4 Y. S. Shiva would accompany the complainant to meet the accused. However, PW4 was asked to stay back at the request of the complainant on the ground that suspicion might arise in the mind of the accused which was accepted by the TLO. The prosecution has given a valid explanation as to why PW4 was asked to stay back. Though not referred to or relied upon, in recent judgment - Mukut Bihari (supra), it has been held by the Apex Court that it is not necessary that evidence of a reliable witness is necessary to be corroborated by another witness, if such evidence stands corroborated from other material on record. The relevant paras 9 & 10 of the judgment are reproduced hereinbelow :
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 v. 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 CBI Vs. Mehroz Khan Page 42 / 50 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 recorded.
10. This Court, after considering various judgments of this Court including Panalal Damodar Rathi (supra) and Smt. Meena Balwant Hemke (supra) held that acceptance of the submission of the accused that the complainant's version required corroboration in all circumstances, in abstract would encourage the bribe taker to receive illegal gratification in privacy and then insist for corroboration in case of the prosecution. Law cannot countenance such situation. Thus, it is not necessary that the evidence of a reliable witness is necessary to be corroborated by another witness, as such evidence stands corroborated from the other material on record. The court further distinguished the case of Panalal Damodar 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 Smt. Meena Balwant Hemke (supra) as the evidence was contradictory, the corroboration was found necessary.
(Emphasis supplied)
54. The last contention of Ld. Counsel that the voice expert report Ex.PW18/B is not admissible as its original was not produced is also without any merit. The original expert report was not filed with the chargesheet and an application dated 02.12.2010 was moved by CBI Vs. Mehroz Khan Page 43 / 50 the CBI for placing on record opinion of forensic expert report which was allowed by this Court. There was a delay of about four years in moving the said application. However, an oversight in the prosecution case cannot be treated as an irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or relevant material was not brought on record due to any inadvertence, the court should be magnanimous in permitting such mistakes to be rectified. Though not referred to are relied upon, for taking this view, this Court is supported with the judgment of Apex Court titled as Rajender Prasad v. Narcotic Cell, 1999 (6) SCC 110.
55. So far as the last contention of Ld. Counsel for accused is concerned, as per PW18, printouts of two copies of Ex.PW18/B were taken simultaneously and signed in original. Ex.PW18/B placed on record was the attested copy of the report and PW18 has identified his signatures thereon. The original of the said report was also produced in the Court. When the original report was produced in the Court, Ex.PW18/B cannot be said to be a secondary evidence.
56. I find the testimony of PW2 Daya Ram Tyagi reliable and trustworthy. Had PW2 Daya Ram Tyagi been trying to falsely implicate the accused, he would have taken the stand that the iron arches were got prepared and installed by him. The conduct of the accused at the time he was apprehended by the CBI is also relevant to CBI Vs. Mehroz Khan Page 44 / 50 be taken note of by the Court. It has come in the evidence of PW3, PW4 and PW17 that accused got perplexed on being apprehended by CBI.
57. A perusal of the recorded conversation and the Transcripts belies the probable defence sought to be taken by the accused. The transcript Ex.PW14/B at page 11 at point X120 makes it clear that after handing over the amount of Rs.25,000/, the complainant told the accused that balance amount of Rs.25,000/ would also be paid. The complainant further sought a reconfirmation from the accused that the bill would be prepared by tomorrow. This would surely not have been the case in case the payment made by the complainant, as is being claimed by the accused, was for arch fabrication by a private contractor. Apparently a false defence is sought to be taken up by the accused and he has miserably failed in that regard.
VII JUDGMENT RELIED UPON BY LD. COUNSEL
FOR ACCUSED
58. The judgment M. Abbas (supra) relied upon by the Ld. Counsel for accused is distinguishable as in the said case the complainant (contractor) had admitted to have paid Rs.150/ to the appellant for payment to Kamalasanan for removal of bump and the said bump was removed by Kamalasanan. However, in the present CBI Vs. Mehroz Khan Page 45 / 50 case the complainant has categorically denied that on the day of incident the money was paid to the accused for the arches fabricated through private fabricator. In the present case, as per PW2 Daya Ram Tyagi, he had already made the payment for the arches to the accused on the instruction of Executive Engineer. There is no dispute regarding the legal proposition laid down in judgment Nilesh Dinakar Paradkar (supra) relied upon by Ld. Counsel for accused wherein it was held by the Apex Court as under: "In our opinion, the evidence of voice identification is at best suspect, if not, wholly unreliable. Accurate voice identification is much more difficult than visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction.
Therefore, the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification. This Court, in a number of judgments emphasised the importance of 26 the precautions, which are necessary to be taken in placing any reliance on the evidence of voice identification."
(Emphasis supplied)
59. In the present case, besides evidence of voice identification, there is oral evidence of witnesses which this court has found trustworthy. Hence accused has not been convicted purely on the evidence of voice identification.
CBI Vs. Mehroz Khan Page 46 / 50
VIII CONCLUSION :
60. The basic difference between Section 7 & 13 (1) (d) of P.C. Act is that whereas Section 7 bars demand, Section 13 (1) (d) bars acceptance. In order to prove Section 7, acceptance may be with or without demand but as far as Section 13 (1) (d) of P.C. Act is concerned, such acceptance has to be preceded by demand. Offence under Section 13 (1) (d) of P.C. Act would stand completed when it is shown that illegal gratification has been accepted by the accused. It has been so established in the present case and, therefore, offence under Section 13 (1) (d) of P.C. Act also stands proved.
61. Upon consideration of all the facts & circumstances of the case enumerated hereinabove, this Court is of considered opinion that prosecution has succeeded to prove its case to the hilt against the accused. It may be reiterated that the accused has failed even to probablise his defence. As such, the accused deserves to be convicted in this case and he is, accordingly, convicted for having committed offences punishable under Sections 7 and 13(2) r/w Section 13(1)(d) of P.C. Act for which he had been charged with in the present trial.
Announced in the open court (PRAVEEN KUMAR) on dated 29.05.2013. Special Judge, PC Act CBI3, Rohini Courts, Delhi.
CBI Vs. Mehroz Khan Page 47 / 50 IN THE COURT OF PRAVEEN KUMAR, SPECIAL JUDGE, PC ACT, CBIIII, ROHINI COURTS : DELHI.
CBI No.76/11RC No.ACI/2005/A0006/SPE/ACUI/CBI/New Delhi under Section 7 r/w 13 (2) R/w 13 (1) (d) P.C. Act, 1988.
CBI Versus Mehroz Khan ORDER ON SENTENCE:
1. This court has heard Sh. Amit Goel, Ld. Counsel for the convict as also Dr. Padmini Singh, Ld. PP for CBI.
2. On the point of sentence, Ld. Counsel for convict has been much more persuasive and earnest enough to the court. He pointed out that the convict having held the post of Junior Engineer in DDA, having served in the Government department, apparently with good reputation until the present occurrence. It is only unfortunate that he came to be suspended due to registration of the present case and has recently been reinstated. He is a person aged down much more, physically and mentally, during these eight years awaiting trial and has, therefore, suffered more than considerable already. Ld. Counsel further contended that the convict is the only bread earner in the family and has to look after his wife and two children besides an old aged mother. Further, the wife of the convict is in depression for the last ten years. In the circumstances, Sh. Amit Goel submitted that the convict be treated with leniency.
CBI Vs. Mehroz Khan Page 48 / 50
3. Ld. PP for CBI on the other hand, has submitted that corruption in our country is causing a grave danger as it threatens the very foundation of Indian democracy and rule of law. According to her, the convict is not entitled to any leniency while awarding punishment. In support of her contentions, she has relied upon judgments Kunwar Pal Singh Vs. CBI, 2013 III AD (Cri) (DHC) 163 and Dr. Subramanian Swamy Vs. Dr. Manmohan Singh, 2012 Cri. LJ 1519.
4. This court has given consideration to facts and circumstances of the case and also to the submissions made.
5. Punishment in the case of an offence of obtaining or giving bribe by or to a public servant ought to be deterrent as the object of such punishment is to check repetition of the offence not only by the actual culprits but also by the other public servants. Therefore, the Parliament in its wisdom has fixed minimum sentences of imprisonment for various offences under P.C. Act for giving deterrent impact on other public servants who are prone to corrupt deals. It is precisely for this reason why sentence upto 7 years has been fixed for offence punishable under Section 13 (2) with direction that even if the said period of imprisonment need not be given, the sentence shall not be less than the imprisonment for one year. Such a legislative insistence is reflection of Parliament's resolve to meet CBI Vs. Mehroz Khan Page 49 / 50 corruption cases with very strong hand and to give signals of deterrence as the most pivotal feature of sentencing of corrupt public servants.
6. In the facts and circumstances of present case, after weighing the considerations already mentioned hereinabove, this Court is of considered opinion that ends of justice would be met in case the convict is sentenced as under :
(i) For offence punishable under Section 7 P.C. Act, the convict is sentenced to rigorous imprisonment of one year with fine of Rs.10,000/; in default, to further undergo simple imprisonment for a period of two months and
(ii) For offence under Section 13 (1) (d) punishable under Section 13 (2) P.C. Act, the convict is sentenced to rigorous imprisonment of two years with fine of Rs.10,000/; in default, to further undergo simple imprisonment of two months.
7. The sentences of imprisonment to run concurrently. The benefit of Section 428 Cr.PC be given to the convict. Ahlamd is directed to page and bookmark the file so as to enable the digitisation of the entire record. A copy of the judgment and order on sentence be supplied to convict free of cost.
Announced in the open court (PRAVEEN KUMAR)
on dated 30.05.2013. Special Judge, PC Act
CBI3, Rohini Courts, Delhi.
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