Delhi District Court
State vs . Naresh Kumar on 3 April, 2023
1
In the Court of Dig Vinay Singh: Special Judge (PC Act) ACB-02 Rouse Avenue
Courts, New Delhi
In re:
CNR No. DLCT11-000028-2021
CC No. 07/2021
State Vs. Naresh Kumar
FIR No. 47/2014
P.S ACB
U/s 7 & Sec. 13(2) r/w Sec. 13(1)(d)
of the POC Act, 1988,
State
Vs.
Naresh Kumar
S/o Sh. Mata Deen
R/o 63 T-III, Multi Story Flats,
Timarpur, Delhi.
Date of institution : 21.01.2021
Date of arguments : 20.03.2023
Date of judgment : 03.04.2023
JUDGMENT
1. The above-named sole accused faced trial in the present case for offences U/s 7 & Sec. 13(2) r/w Sec. 13(1)(d) of the POC Act, 1988, as were in existence prior to the amendment in the PC Act, as on the date of commission of offence of this case. 1.1. Brief facts of the case are that the accused was working as a Junior Engineer in PWD, with his office at Bhagwan Mahavir Hospital, Pitampura, Delhi. Initially, one FIR 25/2014 was registered on 24.03.2014 based on telecast of few sting operations on a news channel namely 'India News' on 22.03.2014 and its repeat telecast on 23.03.2014. In the said sting operations, it was exposed as to how few Junior Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 1 / 42 2 Engineers of PWD, being public servants, including the accused, demanded and accepted bribe. Since the sting operations were conducted at different places against different persons and the acts of offenders were unconnected, the investigating agency decided to lodge separate FIRs qua the different offences. 1.2. Thereafter, qua the present accused, FIR No. 47 of 2014 was registered on 13.06.2014. In the sting operation, the accused was seen demanding and accepting a bribe amount of Rs. 20,000/- cash from one Sunil Chaudhary(PW1), and the accused further demanded Rs.5000/- more from Sunil Chaudhary. The investigation was undertaken and it was found that Sunil Chaudhary got conducted the sting operation against the present accused sometime in January/February 2014 with the help of a journalist, namely, Farooque Newazie(PW7). Sunil Chaudhary used to obtain contracts from PWD in the name of his proprietary business Hari Om Electronics. He claimed that with respect to the payment of his bills, he used to be harassed by PWD officials, and 'commission' used to be demanded from him. Feeling harassed Sunil Chaudhary, with the help of above named journalist, made sting videos of several officials of PWD, including the present accused. During investigation, copy of the relevant footage was collected and it was sent for FSL examination along with sample voice of accused. The FSL result dated 23.03.2018 confirmed the voice in the sting video to be that of Sunil and the accused. 1.3. Perusal of the statement U/s 161 Cr.P.C of Sunil Chaudhary reveals that he used to work as a contractor for supply of electrical works & items in PWD and at the relevant time in January-February 2014, accused was posted as JE of PWD in Bhagwan Mahavir Hospital, Pitampura. Sunil specifically alleged that without taking commission the accused did not use to pass the bills of Sunil for the work performed. Sunil also stated that since it was a constant problem not only with the Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 2 / 42 3 accused, but with other PWD officials also, he contacted India TV news channel and then with its Principal Correspondent, namely, Farooque Newazie conducted various sting operations in those two months and in those stings even the accused was captured. Sunil stated that at the relevant time bills worth Rs. 10-15 lakh were pending with accused qua him, and accused was demanding bribe to forward those pending bills. Upon demand of accused, Rs. 20,000/- was paid to the accused which was captured in the sting. After accepting Rs. 20,000/- accused further demanded Rs.5000/- from Sunil.
1.4. On completion of investigation and after Sanction U/s 19 of POC Act was obtained, the charge sheet was filed U/s 7 & Sec. 13(2) r/w Sec. 13(1)(d) of POC Act, 1988.
2. Accordingly, a charge under the above mentioned Sections was framed against the accused to which he pleaded not guilty and claimed trial.
3. In support of its case, Prosecution examined 18 witnesses, out of whom PW1 Sunil Chaudhary & PW7 Farooque Newazie are the material witnesses. Rest of the witnesses are more or less formal in nature. Sunil Chaudhary PW1 supported the case of prosecution completely. PW7 Farooque Newazie partially supported the case of prosecution. The testimonies of PW1 & PW7 is being discussed hereinafter at appropriate stage in order to avoid repetition.
3.1. From amongst the formal witnesses, PW2 Puneet Kumar Vats accorded Sanction against accused U/s 19 of the POC Act, 1988 and proved the same Ex.PW2/A. The letter seeking Sanction sent by the investigating agency is proved as Ex.PW2/C. 3.2. PW3 ACP Vinay Malik simply endorsed the formal complaint of Deepak Gupta, the then Chief Engineer of PWD and got the initial FIR no. 25/2014 registered. The complaint of Deepak Gupta is Ex.PW3/A containing endorsement of this witness Ex.PW3/B and the copy of FIR no. 25/2014 is proved as Ex.PW3/C, which was Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 3 / 42 4 investigated by Inspector Satender Dhull (PW11).
3.3. PW4 ASI Karamveer was the MHCM on 16.01.2015 when PW11 deposited two sealed parcels in the Malkhana vide entry in Register no. 19 Ex.PW4/A and this witness countersigned the seizure memo Ex.PW4/B dated 16.01.2015 against receipt of the case property in the malkhana. Vide Ex.PW4/B, the segregated video recordings qua the present accused, after getting it segregated at FSL, were handed over by Inspector Satender Dhull (PW11) to the IO of the present case Inspector Rakesh Kumar (PW16).
3.4. PW5 HC Jitender was also Malkhana Moharrar on 26.09.2017 when Inspector Manoj Kumar (PW18) deposited part of the case property vide entry in Register no. 19 Ex.PW5/A. The witness also deposed that on 21.11.2017, three sealed parcels were sent to FSL through Ct. Girijpal (PW15) through Road Certificate Ex.PW5/B. The witness also deposed that the exhibits were received back from FSL along with the FSL result on 06.04.2018 through HC Arvind Kumar(PW10), regarding which entry was made in Register no. 19 Ex.PW5/E. 3.5. PW6 Harish Kumar was the Panch witness joined at the time of obtaining of voice samples of the accused at FSL, Rohini on 06.08.2015 and he deposed that after recording of voice sample of accused two audio cassettes were handed over to the IO by the FSL, i.e. one containing original voice sample Mark SVNK-O and another as a copy Mark SVNK-C, which were seized by the IO after sealing them with his seal of RK, vide seizure memo Ex.PW6/A. 3.6. PW8 Rahul Khanna supplied one copy of the original raw footage of the sting operation contained in a DVD to PW11 vide his letter dated 31.03.2014 Ex.PW8/A, and later on he also supplied certificate U/s 65B of the Evidence Act dated 18.01.2019 which is proved as Ex.PW8/B. This witness also deposed that the Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 4 / 42 5 original video camera and its battery/recording device through which the sting was conducted could not be supplied to the investigating agency as it was disposed of. 3.7. PW9 Pramod Kumar Khatri from Trade & Taxes Department proved the profile of M/s Hariom Electronics, i.e. the Proprietorship Concern of PW1. 3.8. PW10 HC Arvind Kumar collected the FSL result and the exhibits from FSL on 06.04.2018 and deposited the same with the IO/Malkhana, respectively. 3.9. PW12 Deepak Ahuja had identified the different PWD officials appearing in the different sting operations, including the accused, before the FSL authorities on 11.12.2014 and he got segregated the different sting operations based on the identification of the offenders appearing in common DVD received from the News Channel qua all the PWD officials captured therein. He also identified the accused of the present case in one of the video footages on the basis of photo available in the Personal Information Management System of the PWD.
3.10. PW13 Dr. C. P. Singh proved his report Ex.PW11/E under which the editing of the video footages contained in the DVD was done in FSL on the identification of PW12, and he deposed that segregation was done out of total 28 video shots contained in the DVD, and the segregated videos were given file names AVF1 to AVF12. The segregated videos were copied onto 9 DVDs which were Mark DVD1 to DVD9, as mentioned in Ex.PW11/E. The DVD pertaining to the present accused is DVD-2 and, as per the FSL result Ex.PW11/E, the name assigned to the video file after segregation qua the accused is "AVF2". Besides one original set of segregated DVDs, two sets of copies were also prepared which were provided to the investigating agency. The witness also deposed that subsequently he also conducted voice comparison of the questioned audio video recording contained in DVD-2 with the sample voices of the accused and PW1, respectively, and gave his opinion Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 5 / 42 6 Ex.PW13/B. 3.11. PW14 SI Krishan Kumar proved the FIR of the present case as Ex.PW11/B;
endorsement on rukka Ex.PW14/A and; DD no. 39 & 40 dated 13.06.2014 Ex.PW14/B & C, respectively.
3.12. PW15 Ct. Girijpal deposed that he carried the three sealed parcels from Malkhana to FSL on 21.11.2017 vide Road Certificate Ex.PW5/B, and after depositing the case property in the FSL obtained acknowledgment receipt Ex.PW5/D. 3.13. PW11 Inspector Satender Dhull was the investigating officer of the initial FIR no.
25/14. He deposed that during investigation of that earlier FIR, he came to know that the sting operations were conducted separately qua nine different officials at different locations, therefore, eight more FIRs were got registered for different offences and he gave rukka Ex.PW11/A for registration of the present case, against the present accused. PW11 also deposed that during investigation, he got sent the recordings to the FSL, i.e. the DVD containing the sting operations for segregation, and on the identification of PW12 the sting operations were got segregated. Vide identification memo Ex.PW11/C the sting operation qua the present accused was got identified and the CD containing the sting operation qua the present accused was handed over to PW16 Inspector Rakesh vide seizure memo Ex.PW4/B along with other documents relating to the case. The DVD is identified by the witness as Ex.P4. 3.14. PW16 Inspector Rakesh Kumar took over the investigation of the present case after registration of the present FIR Ex.PW11/A. The witness deposed that he obtained the DVD containing sting operation qua the present accused from PW11 on 03.09.2014, vide seizure memo Ex.PW16/A, which DVD was in open condition and was kept by him open for investigation purposes. Subsequently, PW11 also handed over three more DVDs to PW16 on 16.01.2015, out of which two DVDs Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 6 / 42 7 were already sealed with the seal of FSL and the third DVD was in unsealed condition. These were the DVDs which were segregated at FSL. Along with the DVDs, FSL report was also received by this witness from PW11 vide seizure memo Ex.PW4/B and also some other documents were received. Thereafter, in June 2015 after taking consent of the accused Ex.PW16/B his voice sample was recorded in FSL, Rohini on 06.08.2015. Sample voice of the accused was recorded in original audio cassette marked as SVNK-O and a copy of it was also provided which was Marked SVNK-C. The witness sealed both the cassettes with his seal of RK and took them into possession vide memo Ex.PW6/A. Thereafter, further investigation was handed over to some other IO.
3.15. PW18 Inspector Manoj Kumar took over further investigation of this case and he deposed that during his investigation tenure, upon his Notice U/s 91 Cr.P.C dated 24.03.2017 Ex.PW18/A, a reply Ex.PW8/C was received from the India TV News Channel in which it was informed that the original recording device through which sting was conducted had been destroyed. Thereafter, he sent a request letter Ex.PW18/B to the Director, FSL for recording of voice sample of Sunil, to which reply Ex.PW18/C was received and then the sample voice of Sunil was recorded in the FSL on 26.09.2017 in an audio cassette Mark SCVC. A copy of the audio cassette Marked SCVC-1 was also prepared and supplied by the FSL. Both the cassettes were sealed in two parcels and were sealed with the seal of MK and were taken into possession vide memo Ex.PW1/B. Those cassettes were then deposited in malkhana. Later on, he got sent the exhibits for examination to the FSL through Ct. Girijpal (PW15) on 21.11.2017 and subsequently FSL result was received on 06.04.2018 along with the exhibits. The witness also deposed that PW8 Rahul Khanna later on gave certificate U/s 65B of the Indian Evidence Act Ex.PW8/B. During Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 7 / 42 8 investigation, the witness also got identified the room in the office of the accused where the incident occurred from Sunil vide memo Ex.PW1/D. The witness also collected documents from PWD during investigation viz., Ex. A-1 to A-7, Ex.PW1/DB and Ex.PW1/DA. The witness also got prepared transcript Ex.PW1/A of the questioned recordings with the help of Sunil and the Panch witness. 3.16. PW17 ACP Rajrani Sharma deposed that she took over further investigation of this case in December 2019 and by that time investigation was almost complete and only Sanction was required. She wrote a communication Ex.PW2/C1 seeking Sanction. A clarification was sought by the competent authority vide Ex.PW2/D1, to which reply Ex.PW2/D2 was sent, and subsequently sanction Ex.PW2/A was received. Thereafter, this witness filed the charge sheet.
4. On completion of the prosecution's evidence, all the incriminating evidence was put to the accused in his statement U/s 313 Cr.P.C. The accused denied the incriminating evidence and claimed that he has been falsely implicated. The accused admitted that he was posted as Junior Engineer in PWD Maintenance Zone, M-3, Electrical Maintenance Circle, M-35, Electrical Maintenance Division M-352 located at Bhagwan Mahavir Hospital, Delhi and that PW1 was working as a Contractor with PWD between 1999 till 2015. However, he denied meeting PW1 in connection with his contract works and claimed that he did not remember meeting PW1 as various contractors used to visit the office whenever required. Accused denied that any bill of PW1 was pending at his end or that he demanded or obtained bribe from PW1 at any point of time. Accused claimed to have never seen PW7 Farooque Newazie and claimed that a false complaint was made and a false FIR was registered. The video recording is claimed to be fabricated and the transcript are also claimed to be fabricated. Accused claims that PW1 & PW7 never visited his office and never Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 8 / 42 9 conducted sting operation and no such talk took place between him and PW1. Accused even denied giving sample voice at FSL, and it is claimed that he was not even taken to the FSL for any such purpose on 06.08.2015, and that the audio cassettes containing voice samples of the accused were manipulated, and also that permission of the Court was not taken before voice sample of the accused. Malkhana entries as well as other documents are claimed to be ante-dated and ante-timed. The certificate Ex.PW8/B is claimed to be not by a competent person. Even Sanction is claimed to be without application of mind. Competence of the FSL expert PW13 Dr. C. P. Singh is also questioned by the accused claiming that he was not competent to examine the electronic evidence and that he did not examine the original recording or the recording from the DVD. Accused claimed that he was relieved from PWD, Delhi on 20.01.2014 and thereafter he joined duties at Bhuj District in Gujarat in CPWD which was his parent cadre. It is claimed that the purported sting operation was false and fabricated which was done to increase TRP of the news channel and that Anti-Corruption Branch was not competent to register the present case or investigate the present case as he was a Central Government Employee and not an employee of Delhi Government. The accused initially opted to lead evidence in his defence, but on 17.01.2023, without examining any defence witness, the accused filed an application and closed the opportunity to lead any defence evidence in his favour.
5. I have heard Ld. Counsel for the accused and Ld. Prosecutor for the State. Their arguments shall be discussed herein below to avoid repetition.
6. First of all, the accused argued that Anti-Corruption Branch was not competent to investigate the matter against the accused as the accused was a Central Government employee under CPWD. It is claimed that Anti-Corruption Branch of NCT of Delhi Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 9 / 42 10 was declared a police station vide notification dated 08.11.1993 and, subsequently two more notifications dated 23.07.2014 & 21.07.2015 were issued by the Central Government vide which it was clarified that the Anti-Corruption Branch cannot investigate offences under POC Act against a Central government employee. The said two subsequent notifications were upheld by the Supreme Court in the case of Govt. of NCT of Delhi Vs. Union of India III (2019) SLT 225.
6.1. This contention on behalf of the accused was also raised at the stage of charge and this Court specifically declined that contention. In the case of NCT of Delhi (Supra) one of the questions involved was whether the exclusion of the jurisdiction of the Anti-Corruption Branch of NCT of Delhi to investigate offences committed under the Prevention of Corruption Act, 1988 by the officials of Central Government and limiting the jurisdiction of ACB to the employees of GNCTD alone, was legal? 6.2. After examining the notifications dated 01.08.1986, 08.11.1993, 23.07.2014 & 21.05.2015, Hon'ble Supreme Court held in para no. 110 that the impugned notifications dated 23.07.2014 & 21.05.2014 were valid. In para no. 114 of the said judgment, it was held that the effect of the impugned notifications was that the ACB was not empowered to investigate into the offences of Central Government Employees under the PC Act. Thus, the validity of notifications dated 23.07.2014 & 21.05.2015 were upheld in the said judgment, as mentioned in para 115. Based on the said judgment, the accused sought discharge earlier and now seeks acquittal in the present matter, on the ground of jurisdiction.
6.3. The plea of accused cannot be accepted. As mentioned above, the FIR in question against the accused was registered on 13.06.2014, i.e., much prior to the notification dated 23.07.2014 and the subsequent notification dated 21.05.2015. At the cost of Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 10 / 42 11 repetition, it may be mentioned that the offence in question stood committed sometime in January and February 2014, as per statement of Sunil Chaudhary. 6.4. Vide notification dated 01.08.1986 the Administrator of Delhi declared ACB of Delhi as a police station under section 2 (s) of Cr.P.C for offences relating to corruption. As per this notification, ACB had jurisdiction all over the Union Territory of Delhi. In suppression of this notification, vide notification dated 08.11.1993 the ACB of NCT, Delhi was declared a police station for offences under the POC Act 1988. At that time, there was no limitation on the powers of ACB to register FIR and investigate offence of corruption against Central Government employees. Subsequently, vide notification dated 23.07.2014 it was mentioned that the notification shall apply to the officers and employee of government of NCT of Delhi. Subsequently, vide another notification dated 21.05.2015 it was mentioned that the notification shall apply to officials and employees of NCT of Delhi and ACB shall not take cognizance of offences against officers, employees and functionaries of the Central Government.
6.5. Thus, as on the date when the present offence was committed by the accused the two notifications amending the notification dated 08.11.1993 were not in existence. They came into existence after FIR was registered against the accused. 6.6. In any case, Sub Section (2) of Sec. 156 Cr.P.C provides that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. Sub Section (1) of Sec. 156 Cr.P.C provides that any officer in charge of a police station may, without the order of Magistrate, investigate any cognizable offence which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of chapter Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 11 / 42 12 XIII. Chapter XIII of Cr.P.C deals with jurisdiction of the criminal courts in inquiries and trials.
6.7. It may be noted here that Sec. 177 of Cr.P.C, which falls under Chapter XIII provides that every offence shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed. It is not in dispute in the present case that the offence by the accused was committed within the jurisdiction of this Court. Thus, bar U/s 156(2) applies against the accused and the accused cannot question the investigation conducted by ACB against him at this stage.
7. Turning to the merits of the case, before appreciating evidence in this case, let it be mentioned that even in a case under Prevention of Corruption Act, the onus is on the prosecution to prove the fundamental requirement of criminal law viz., the guilt of an accused should be proved beyond all reasonable doubts. In State of Maharashtra Vs. Dnyaneshwar Laxman Rao Wankhede 2009 (4) RCR (criminal) 217, and State of Punjab Vs. Madan Mohan Lal Verma 2013 (7) LRC 34 (SC), it was held that the foundational facts must be established by the prosecution. It was also held that even while invoking the provision of section 20 of PC Act, the court is required to consider the explanation offered by the accused, if any, only on the touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubt. In the case of Madan Mohan (Supra) it was also observed that mere receipt of the amount by the accused is not sufficient to fasten guilt in absence of any evidence with regard to any demand and acceptance of the amount as illegal gratification.
8. It may also be mentioned here that it is well settled that it is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is also well settled that suspicion however strong can Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 12 / 42 13 never take the place of proof. There is a long distance between the fact that accused 'may have committed the offence' and 'must have committed the offence', which is to be proved by the prosecution by adducing reliable and cogent evidence. Presumption of innocence is recognised as human right which cannot be wished away. (Refer; Narender Singh & anr. Vs. State of M.P. (2004) 10 SCC 699; Ranjtsingh Brahamjeet Singh Sharma Vs. State of Maharashtra & Ors. (2005) 5 SCC 294; Ganesan Vs. Rama S. Raghuraman & Ors. (2011) 2 SCC 83 and; State of U.P. Vs. Naresh & Ors. (2011) 4 SCC 384; State Vs. Gulzari Lal Tandon AIR 1979 SC 1382).
9. In the case of Neeraj Dutta Vs. State (GNCT of Delhi) 2022 SCC OnLine SC 1724, Constitutional Bench of Hon'ble Supreme Court held as follows;
"74. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and(ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 13 / 42 14 gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 14 / 42 15
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."
10. It is laid down in the said judgment that proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is sine quo non in order to establish the guilt of accused public servant U/s 7 & 13(1)(d)(i) & (ii) of the PC Act, 1988. In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact, which can be proved by direct oral evidence or direct documentary evidence, or in absence thereof through circumstantial evidence. It is also held by the Hon'ble Supreme Court that the presumption of fact with regard to the demand or acceptance or obtainment of an illegal gratification may be made by the Court by way of inference only when the foundational facts have been proved by oral and documentary evidence and not in absence thereof. It was also held that the presumption in law U/s 20 of the Act is distinct from presumption of fact. The presumption is subject to rebuttal by the accused. Sec. 20 does not apply to Sec. 13(1)(d)(i) & (ii) and it applies only to Sec. 7 of the PC Act.
11. After settling of the legal position by the Constitution Bench, another bench of Hon'ble Supreme Court while disposing off the appeal in that very case of Neeraj Dutta Vs. State (GNCT of Delhi) 2023 SCC OnLine SC 280, held as follows;
Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 15 / 42 16 "9.......................................The demand for gratification and the acceptance thereof are sine qua non for the offence punishable under Section 7 of the PC Act.
10. xxxxxxxxxxxxx
11. Even the issue of presumption under Section 20 of the PC Act has been answered by the Constitution Bench by holding that only on proof of the facts in issue, Section 20 mandates the Court to raise a presumption that illegal gratification was for the purpose of motive or reward as mentioned in Section 7 (as it existed prior to the amendment of 2018). In fact, the Constitution Bench has approved two decisions by the benches of three Hon'ble Judges in the cases of B. Jayaraj1 and P. Satyanarayana Murthy 2 . There is another decision of a three Judges' bench in the case of N.Vijayakumar v. State of Tamil Nadu5, which follows the view taken in the cases of B. Jayaraj 1 and P. Satyanarayana Murthy2. In paragraph 9 of the decision in the case of B. Jayaraj1, this Court has dealt with the presumption under Section 20 of the PC Act. In paragraph 9, this Court held thus:
"9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent."
(emphasis added) The presumption under Section 20 can be invoked only when the two basic facts required to be proved under Section 7, are proved. The said two basic facts are 'demand' and 'acceptance' of gratification. The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification shall be presumed to be for a motive or reward, as contemplated by Section 7. It means that once the basic facts of the demand Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 16 / 42 17 of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption.
12. In the case of N. Vijayakumar5, another bench of three Hon'ble Judges dealt with the issue of presumption under Section 20 and the degree of proof required to establish the offences punishable under Section 7 and clauses (i) and (ii) Section 13(1)(d) read with Section 13(2) of PC Act. In paragraph 26, the bench held thus:
"26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779: (2009) 2 SCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B.Jayaraj v. State of A.P., (2014) 13 SCC 55:
(2014) 5 SCC (Cri) 543] In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court." (emphasis added) Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt.
13. Section 7, as existed prior to 26th July 2018, was different from the present Section 7. The unamended Section 7 which is applicable in the present case, specifically refers to "any gratification". The substituted Section 7 does not use the word "gratification", but Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 17 / 42 18 it uses a wider term "undue advantage". When the allegation is of demand of gratification and acceptance thereof by the accused, it must be as a motive or reward for doing or forbearing to do any official act. The fact that the demand and acceptance of gratification were for motive or reward as provided in Section 7 can be proved by invoking the presumption under Section 20 provided the basic allegations of the demand and acceptance are proved. In this case, we are also concerned with the offence punishable under clauses (i) and (ii) Section 13(1)(d) which is punishable under Section 13(2) of the PC Act. Clause (d) of subsection (1) of Section 13, which existed on the statute book prior to the amendment of 26th July 2018, has been quoted earlier. On a plain reading of clauses
(i) and (ii) of Section 13(1)(d), it is apparent that proof of acceptance of illegal gratification will be necessary to prove the offences under clauses (i) and (ii) of Section 13(1)(d). In view of what is laid down by the Constitution Bench, in a given case, the demand and acceptance of illegal gratification by a public servant can be proved by circumstantial evidence in the absence of direct oral or documentary evidence. While answering the referred question, the Constitution Bench has observed that it is permissible to draw an inferential deduction of culpability and/or guilt of the public servant for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The conclusion is that in absence of direct evidence, the demand and/or acceptance can always be proved by other evidence such as circumstantial evidence.
14. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 18 / 42 19 demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand."
12. In the light of the said judgments, let the evidence of the present case be appreciated for the limited purpose as to whether the prosecution succeeds in proving demand of illegal gratification by the accused and its acceptance.
13. Broadly, the entire case of the prosecution was based upon two pieces of evidence.
One is the electronic evidence i.e. the audio-video recording of the sting operation in which allegedly the accused was captured demanding and accepting bribe. Second is the oral testimony of the demand and acceptance of bribe of PW1.
14. So far as the electronic evidence is concerned, admittedly the original audio-video recording could never be recovered in the present case. Therefore, this part of evidence of the Prosecution is based upon a copy of the audio-video recording. Law is well settled that when the original electronic evidence is not proved in evidence, its copy is admissible only upon proving of necessary certificate U/s 65B of the Evidence Act and the necessary chain of evidence which ensures that there was no tampering or alteration in the electronic evidence.
14.1. Qua the electronic evidence, it is argued by the Counsel for accused that the certificate U/s 65B of the Evidence Act Ex.PW8/B purportedly issued by PW8 Rahul Khanna is not admissible; the recordings are fabricated as in the recording played in the testimony of PW1 & PW7 sound bar and cursor popped up during the video being played at different times; no default date and time of the video recording exists; PW8 did not prepare the copy of DVD and it was prepared by another department in the news channel; PW8 did not know who prepared and copied the Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 19 / 42 20 questioned video recording from the camera onto the computer and then from the computer onto the DVD; PW8 did not even see the raw footage and the telecasted footage or the copy contained in the DVD which he supplied to the investigating agency; the make and model of the video camera and recording device etc. is not specified In Ex.PW8/B; the details of the computer system through which copy was prepared is also not described; proforma for certificate U/s 65B of the Evidence Act was used; the name of accused or the details of the case are not existing in the certificate Ex.PW8/B; PW8 was not competent to issue any such certificate; proforma of the certificate was sent to PW8 by the IO; no report as to the transcript was obtained from FSL; no permission of the Court was obtained to take voice sample of the accused; no report was obtained from the FSL as to the image of the accused in the video; the FSL report as to segregation of videos as also comparison of the voice sample of the accused is inadmissible; the FSL was not notified U/s 79 A of the IT Act on the date of examination; there is discrepancy as to the name of accused in forwarding letter sent to the FSL while seeking opinion, all of which prove that the video recording was fabricated and he accused was implicated. 14.2. The accused relies upon the case of Ashish Kumar Dubey Vs. State Through CBI 2014 IV AD (Delhi) 473, wherein Hon'ble High Court observed that micro cassette recorder used in that case to record the conversation was not submitted to the FSL, and was not examined for ruling out the possibility of tampering and therefore one of the important requirement no.3 as laid down by Hon'ble Supreme Court in the case of Ram Singh Vs. Col. Ram Singh AIR 1986 SC 3, was not fulfilled. 14.3. The accused has also relied upon the case of Ram Singh & Others Vs. Col. Ram Singh AIR 1986 Supreme Court 3, wherein in para no. 32, the following conditions Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 20 / 42 21 were laid down by the Hon'ble Supreme Court before an audio recording can be relied upon. It read as follows: -
'32. Thus, so far as this Court is concerned the conditions for admissibility of a recorded statement may be stated 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.' 14.4. The accused has also relied upon the case of Sudhir Chaudhary Etc. Vs. State (NCT of Delhi) AIR 2016 Supreme Court 3772, wherein while hearing a petition as to whether an accused can be directed to read out the disputed text verbatim or whether the accused can be directed to read out sentences appearing in the disputed conversation while giving voice sample, Hon'ble Supreme Court directed that while obtaining voice sample of accused certain words from the disputed conversation may be used, but the sentences from the disputed conversation should not be used.
14.5. The accused has also relied upon the case of Shiv Dutt Bakshi Vs. CBI passed by Hon'ble Delhi High Court in Crl. M.C. No. 1191/2021 decided on 02.03.2023, wherein it was held that in absence of the original recording device collected and Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 21 / 42 22 sent for examination; the DVD containing video recording which were not sealed in accordance with chapter 18 of the CBI Manual prescribing the procedure for protection of the original record; possibility of tampering not ruled out in that case; no opinion given by the CFSL on the voice comparison of the suspect; exoneration of the accused in the departmental inquiry and; the hard disk found to be not properly secured and found to be a bad media , it was held by the high court that the closure report preferred by the CBI was acceptable.
14.6. Accused also relies upon the case of Jahan Singh Vs. CBI-The State 2020 (2) RCR (Criminal) 794, from Hon'ble Delhi High Court, in order to lay stress on the point that from CFSL/ FSL the transcript of the audio video recording was not got examined and no opinion was obtained on the contents of the transcription or its correctness and authenticity. In the case of Jahan Singh, the person who had prepared the transcript was not examined in the trial and the IO simply identified the handwriting of that person, but the IO also did not depose about the correctness of transcript and therefore the transcript was held to be unreliable. Also in that case the accused took up the defence that after his arrest the investigating agency prepared some audio CDs and thus the accused claimed false implication. 14.7. The accused also relies upon the case of Ajay Gupta Vs. State through CBI from Hon'ble Delhi High Court in Crl. Appeal no. 469/2003 dated 28.10.2022, in order to lay stress on the point that specimen voice of the accused was not taken with the permission of the Court and that merely on the basis of probable report of FSL, an accused cannot be convicted. The accused relied upon paragraph no. 62 of this judgment, which is in fact contention raised by the accused of that case and nothing else. The accused also relies upon paragraph no.148 wherein it is mentioned that accused cannot be held guilty on the basis of probability of his voice. In that case Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 22 / 42 23 the identity of the accused was seriously in dispute as observed by the Hon'ble High Court in paragraph no. 113 of the judgment, therefore opinion of the FSL expert was held to be unreliable.
14.8. On the other hand, Ld. Prosecutor for the State argues that the video recording proved by the Prosecution is a copy of the original recording duly proved along with the certificate U/s 65B of the Evidence Act and therefore it is reliable. 14.9. For the following reasons, this Court is constrained to hold that the electronic evidence sought to be proved by the prosecution in this case is not proved in accordance with law. Admittedly, the original audio-video recording could never be recovered by the investigating agency and it was not supplied by the news channel. Even the original devices used for making the audio-video recording by PW7 and PW1 were never recovered. Ex.PW8/C, a letter written by PW8 to the IO clearly states that the video camera including its battery, through which the sting was recorded, had a limited life of about one year, and such video cameras are unrepairable and therefore disposed of and therefore the news channel was not in possession of the said devices. The prosecution witnesses admitted that the original device was not supplied and the original video recording was also not provided at any stage of the investigation. All that was recovered was a copy of the video recording supplied to the investigating agency by PW8 on 31.03.2014 through letter Ex.PW8/A. Vide this letter Ex.PW8/A, PW8 claims to have supplied to PW11 Inspector Satender Dhull one CD which was purportedly containing the raw footage of sting operation telecasted on 22nd & 23rd March of 2014.
14.10. PW11 Inspector Satender Dhull collected the CD from the office of PW8 on 31.03.2014. He prepared a seizure memo of that date under FIR no. 25/2014, as he was the IO of that case. The said seizure memo is not exhibited and is not proved in Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 23 / 42 24 accordance with law in the present case by the Prosecution and was merely marked as Ex. P-8/X in the testimony of PW8. It could not be exhibited as PW8 could not recall whether this seizure memo was prepared before him or not, and this seizure memo does not bear signature of PW8. Nevertheless, this is a document of Prosecution itself and the Prosecution cannot deny this document. This document goes against the Prosecution and in favour of the accused. According to this document, Inspector Satender PW11 along with one Panch witness Satbir Singh went to the office of the News Channel on 31.03.2014 and from PW8 obtained this DVD in unsealed condition. According to this document, the DVD was then brought to the office of ACB in unsealed condition. At ACB, PW11 prepared or got prepared one more copy of this DVD in presence of the Panch witness Satbir Singh. Thereafter, the DVD brought from the news channel's office was marked "Exhibit- 1" and then it was sealed by PW11 by his seal of SK. The copy of DVD prepared by PW11 was marked as "Exhibit 1-A" and it was kept in unsealed condition on the investigation file. Prosecution did not prove the relevant entries in the malkhana register dated 31.03.2014 to show that the DVD brought from news channel was deposited in the malkhana by PW11. Accordingly, the condition no. 3 & 5 as laid down in the case of Ram Singh (Supra) were not fulfilled. About this DVD, PW11 in his cross examination stated that he had received a pen drive through post and the footage received by him was in the pen drive, but he did not know whether the pen drive contained edited and telecasted version or it contained non-edited and non- telecasted version. Though, at later stage in the same cross examination when the witness was confronted with the records of FIR no. 25/2014, the witness admitted that he received CD and not pen drive, but the seizure memo Mark P-8/X was not got proved by the prosecution in the testimony of PW11. Even if no importance is Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 24 / 42 25 given to the fact that PW11 at one place claimed that he had received pen drive instead of CD, still for the reasons to follow, this Court is constrained to hold that the electronic evidence has not been proved in the present case in accordance with law.
14.11. The copy of DVD "Exhibit 1-A" was supplied by PW11 to the IO of the present case Inspector Rakesh PW16 on 03.09.2014 vide seizure memo Ex.PW16/A. This was the copy of DVD prepared by PW11 at ACB on 31.03.2014. Admittedly, no certificate U/s 65B of the Evidence Act was issued by PW11 or anyone else qua preparing of this copy on the computer system of PS ACB.
14.12. So far as the DVD collected by PW11 from the office of PW8 on 31.03.2014 is concerned, it was sealed by PW11 in his office on that very day. This DVD supplied by PW8 to PW11 on 31.03.2014 contained various video recordings qua various sting operations conducted against different offenders, including the accused. Subsequently, PW1 sent this sealed DVD to the FSL for segregation of the sting operations qua different offenders recorded on different dates and places. Under FSL report dated 23.12.2014 Ex.PW11/E, the videos were segregated. 14.13. As per the FSL report Ex.PW11/E in the DVD received by PW11 from PW8 total 28 identified video shots were found. It is mentioned in Ex.PW11/E that, "these video shots were found connected by using software for capturing on screen display". From these different video shots, 12 relevant video footages identified by one of the team members of the sting operation were split serially and those video shots were given file names AVF1 to AVF12 (extended name P1 & P2 were given to the file for the same accused). These segregated video footages were copied onto nine different DVDs separately and three sets of each of the nine DVDs were prepared, out of which two copies each were sealed by the FSL and one copy each Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 25 / 42 26 were left unsealed. From these nine DVDs, the DVD Mark DVD-2 by the FSL pertain to the present accused and the other eight DVDs segregated at FSL pertained to other offenders, with which we are not concerned. In the testimony of PW1 & PW7, one of the DVD out of the three copies qua the present accused prepared at FSL was played and seen by PW1 & PW7.
14.14. Admittedly, PW13 Dr. C. P. Singh who undertook the work of segregation of the videos at FSL under the FSL result Ex.PW11/E, did not issue any certificate U/s 65B of the Evidence Act and no such certificate is proved on record. 14.15. The DVD handed over by PW8 to PW11 on 31.03.2014 was not played in the testimony of PW1 & PW7. PW8 did issue a certificate U/s 65B of the Evidence Act proved as Ex.PW8/B. The said certificate is dated 18.01.2019, whereas the DVD was handed over to PW11 on 31.03.2014. Anyhow, even this certificate Ex.PW8/B does not meet the necessary requirements of Sub-Section 2 & 4 of Sec. 65B of the Evidence Act. Admittedly, this DVD supplied by PW8 contained 28 different video shots which included the video qua the present accused. In the FSL result Ex.PW11/E, it is clearly mentioned that those many number of video shots were found in this DVD when examined by FSL expert PW13. It contained videos qua other accused persons also and as per the FSL result, the video shots were found connected using some software. It was not a copy of the videos of accused only. Rather it contained different videos of different accused. Therefore, neither the DVD supplied by PW8 to PW11 can be called as a copy of the video qua the accused of the present case, nor its certificate Ex.PW8/B is in accordance with law.
14.16. PW8 admitted in his cross examination that he was looking after the work of legal department of the news channel and the DVD was not prepared by him. He deposed Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 26 / 42 27 that the DVD was prepared at "Injest Department" of the News Channel and he was not even Incharge of that department. He did not know who prepared the DVD. He did not know as to when this DVD was prepared in his office, but claimed that it was prepared between 27 March to 31 March, 2014. He even admitted that the sting operation was recorded through a camera and it was originally stored in a memory chip in the camera. Then it was transferred from the memory chip of the camera to the computer of Injest Department and thereafter from the copy of the computer system, the DVD was prepared. Therefore, in order to complete the chain of certificate U/s 65B of the Evidence Act, there should have been a certificate under that provision qua copying the original video of this accused from the memory chip of the camera onto the computer system of news channel. There should have been another certificate under that provision when another copy on the DVD was prepared from the computer. Neither did PW8 copy the original video from the memory chip of the camera onto the computer, nor he copied it from the computer to the DVD. In Ex.PW8/B, the description of the original recording device, storage device is not mentioned. Also, the description of the computer on which the copy was stored and then from which the DVD was prepared is not mentioned in Ex.PW8/B. This copying process was admittedly not done in the presence of PW8, as admitted by him in his cross examination. PW8 was not even aware as to in whose possession, the original camera and the memory chip were. PW8 was not aware as to who was heading Injest Department. PW8 even admitted that he never saw the original raw footage of the sting operation or the telecasted version at any stage. He admitted that there was a separate IT Department in the news channel which used to look after the computers. He admitted that he was not even aware of the make, model of the camera or the computer system through which Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 27 / 42 28 the DVD was prepared. Though, at one place PW8 claimed that he did see the contents of the DVD on a computer system, but he admitted that he did not see the entire footage. PW8 even admitted that while preparing Ex.PW8/B, a proforma of the certificate was used and also that it does not contain the case particulars and the name of the present accused. All the above mentioned facts are sufficient to hold that certificate U/s 65B of the Evidence Act Ex.PW8/B given by PW8 is not in accordance with law and once this certificate is not proved, the electronic evidence in the present matter is not proved in accordance with law. 14.17. In absence of the original video recording and the device, and in absence of proper certificate U/s 65B of the Evidence Act qua the DVD received from the news channel on 31.03.2014, its copy prepared by PW11 at ACB on the same day, and the segregated copies prepared at FSL by PW13 under Ex.PW11/E, the electronic evidence has to be rejected. Accordingly, the electronic evidence sought to be proved against the accused cannot be read against the accused and once it is so held, the remaining contentions of the accused as to the mode, manner, permission and comparison of the voice samples etc. becomes academic.
14.18. The DVD Ex. P4 played in the testimony of PW1 & PW7 reveals that there is only one video file by the name of "AVF2.MPG" in the DVD prepared at FSL under Ex.PW11/E after segregation. The properties of the said file reveals that it was accessed and modified on Wednesday, December 3, 2014 at 14:51:25. Whereas the DVD copied by PW11 from the DVD brought by PW11 from PW8 on 31.03.2014, which was seized vide Mark P-8/X seizure memo dated 31.03.2014, and which was subsequently handed over by PW11 to PW16 vide seizure memo Ex.PW16/A on 03.09.2014, which was exhibited as Ex.P5 in the testimony of PW16, reveals that it contains one folder by the name of "VIDEO_TS" with the date of modification as Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 28 / 42 29 03.09.2014. Inside this folder, there are nine files, out of which three are "VIDEO_TS" files and remaining six are "VTS_01" files. Strangely, all these nine files in Ex. P5 reveals that the date of modification of these nine files is 30.03.2014. If the DVD collected by PW11 from PW8 was collected on 31.03.2014, and then on 31.03.2014 he copied these files, the date in the folder should have been 31.03.2014, but the date of the folder modified is 03.09.2014. 14.19. Perusal of the testimony of PW7 Farooque Newazie reveals that in the cross examination by the accused, he claimed that the camera which he used at the time of conducting of the sting operation had in-built facility of default date and time of recording. The witness volunteered that the date and time of recording in the said camera got changed on that day due to some technical error. He also claimed that he came to know about that error of date when the footage was being prepared for being telecasted on the TV news channel, but he did not inform the IO between March 2014 till March 2017 about any such error. He claims to have told the IO about that error of date and time, but no such Prosecution document reveals that there was any error as to date and time of recording brought to the notice of investigating agency by PW7. PW1 Sunil in his cross examination admitted that date of 25.02.2014 was appearing in the video seen by him during his testimony. All these facts collectively are enough to hold that the copy of sting operation sought to be proved by the Prosecution in this case has not only been not proved by the Prosecution in accordance with law, but also there is some suspicion about it.
14.20. Accordingly, the electronic evidence will have to be ignored in this case.
Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 29 / 42 30
15. The only other evidence available is the oral testimony of PW1 Sunil Kumar Chaudhary and a limited corroboration of his version to some extent by PW7 Farooque Newazie.
15.1. Qua the oral evidence against the accused, it is argued by the accused that prosecution did not prove whether any bill was pending with the accused on the date of alleged sting operation; the date of sting operation is not established till date; Ex.PW1/DA & DB reveals that bills of PW1 were not pending with the accused; admittedly accused was relieved from this office on 20.01.2014 as revealed from Ex.A3 (an admitted document by the accused); there are material improvements in the testimony of PW1; the accused had limited role in processing the bills and he was neither the final authority to clear the bills, nor the final authority to reject the bills; the initial case of prosecution was that demand and acceptance occurred in presence of PW1 & PW7, whereas both of them denied it; the IOs have deposed falsely in this case; there are material contradictions in the testimony of PW1 & PW7; the currency note numbers were not noted down; no complaint was given to the Anti-Corruption Branch or CBI and of their own PW1 & PW7 decided to conduct sting which was improper.
15.2. On the other hand, Ld. Prosecutor argues that the oral testimony of PW1 & 7 is enough to prove guilt of the accused qua demand and acceptance of bribe. Ld. Prosecutor relies upon the case of State of Himachal Pradesh Vs. Gian Chand Crl. Appeal No. 649/1996 decided on 01.05.2001, wherein it was held that delay in lodging FIR is not always fatal and the delay, if explained by the Prosecution would not affect the merits of the case. Reliance is also placed by the prosecutor upon the case of Girish Yadav & Ors. Vs. State of M.P. 1996 SCALE (3) 168, wherein it was held that the recitals in the map prepared by the investigating agency is hearsay and Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 30 / 42 31 could not be read in evidence. There is no dispute qua the above mentioned two legal positions, but neither of those two judgments help the case of the prosecution in proving the charge against the present accused.
15.3. PW7 Farooque Newazie, as per initial case of prosecution was the witness to the demand and payment of bribe by the accused from Sunil on the date when the sting operation was conducted. As per statement U/s 161 Cr.P.C of this witness, he was physically present inside the room of the accused when the demand and payment of bribe was done. However, as PW7 he did not support this part of the Prosecution's case and instead deposed that when he along with PW1 entered the room of the accused, with PW1 wearing spy camera device on his body and another spy camera device on the body of PW7, after about 20-25 minutes of conversation between PW1 and the accused in presence of this witness, the accused asked this witness to go out of the room and accordingly the witness came out of the room leaving behind PW1 and the accused. After about 20 minutes PW1 came out of the office and then PW7 checked the video footage recorded by the spy camera on the body of PW1 Sunil. Thereafter, he deposited the recorded footages in his office of India TV. Even in the cross examination by the Prosecutor, the witness claimed that he was not physically present when the accused demanded the bribe from PW1 Sunil or when PW1 gave bribe to the accused or when the accused counted the currency notes. The suggestions of the Prosecutor to the effect that the bribe was demanded, accepted, counted and kept by the accused from PW1 in the presence of PW7 were all specifically denied by PW7. Therefore, at the most the testimony of PW7 corroborates the testimony of PW1 only to the extent that on the request of PW1, PW7 was deputed to conduct the sting operation by the news channel and that on the date of sting Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 31 / 42 32 operation the witness installed a spy camera device on the body of PW1 and he also installed a device on his own body and then entered the room of the accused, witnessed some conversation between the accused and PW1 and then came out of the room.
15.4. Ignoring the evidence qua the electronic evidence deposed by PW7, for the reason that it has not been proved, the evidence of PW7 is left only on the point that he was assigned the duty of investigation reporting by India TV in January 2014 and then he came to know from PW1 about the demand of commission by the PWD Engineers. PW7 then told PW1 that he should be taken along as a Marketing Manager before the concerned Engineers who were demanding commission and thereafter PW7 started accompanying PW1 to various offices of PWD. PW7 also went to the office of the accused located at Bhagwan Mahavir Hospital in January 2014 and met him in his office. PW7 however could not recollect the date when he visited the office of the accused and conducted the sting. It is deposed specifically by PW7 that on that day when he and PW1 went to the office of accused, the accused after speaking to PW1 for about 20-25 minutes while PW7 was also sitting inside the office asked PW7 to go out stating that the accused wanted to talk about something personal to PW1 and that PW7 should not feel bad about it. Thereafter, PW7 went out of the room and after about 20 minutes PW1 came out of the office and then PW7 found a recording in the spy camera device installed on the body of PW1. I need not discuss as to the contents of the video recording as deposed by PW7 since the same has not been proved in this case.
15.5. The original case of the prosecution was that the demand, acceptance and further demand by the accused was made in the presence of PW7. However, PW7 claimed that he had been sent out of the room and he did not witness the demand or Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 32 / 42 33 acceptance of bribe. On this part PW7 was declared partially hostile and was cross examined by the Prosecutor. Even in the cross examination, PW7 stood the ground that some initial conversation regarding clearance of bills of PW1 did take place in presence of PW7 between the accused and PW1, but then the accused had sent him out. PW7 claimed that accused and PW1 spoke about clearance of bills and they also undertook some calculations and the accused even said "jo hota hai bill clear karne ka, who tumko karna padega". But, no such fact is mentioned in the statement U/s 161 Cr.P.C Ex.PW7/A of this witness. PW7 denied the suggestion of the Prosecutor that in his presence demand or acceptance of bribe took place and PW7 even claimed that his statement U/s 161 Cr.P.C Ex.PW7/A was not completely correct. In the cross examination by the accused, PW7 claimed that even on the date of deposition, he cannot specify the date of sting operation, but the sting was conducted on single day. He even claimed that he himself was wearing one spy camera device and PW1 was wearing another spy camera device and the fact that the accused asked PW7 to go out of the room was recorded in both the devices. The number of the currency notes were not noted down by PW1 or PW7 before the sting operation. PW7 also admitted that he did not maintain any record about the date and time and the place of sting operations conducted by him and he was never taken to the spot by the investigating officer for identification of the same. PW7 even claimed that he never played any video recording before PW1 on the date of conducting sting operations after PW1 came out of the room.
15.6. Besides PW7, qua the oral evidence, the only witness remaining and examined by the prosecution is PW1 Sunil Kumar Chaudhary. PW1 deposed that he used to undertake the contract of Electric works pertaining to PWD and he was running a firm by the name of Hari Om Electronics. At that time, accused was working as JE Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 33 / 42 34 in Sub Division no. 3521 & 3522 and the accused and other PWD officials did not use to clear bills without payment of bribe. PW1 claimed that in 2014 he had obtained certain contracts under the jurisdiction of accused and after performance of his part of contract, he had submitted the bills, but the accused demanded commission of 10% of the net bill amount for clearing the bills. PW1 deposed that there were one or more bills pending to the tune of Rs. 2-2.25 Lakh approximately and against those pending bills, accused demanded 10% of the bill amount. On getting frustrated, PW1 contacted India TV officials and PW7 was attached with him for sting operations sometime in the year December 2013. PW1 used to take along PW7 as his Marketing Executive before the PWD officials so that the PWD officials do not suspect anything. Sometime in January 2014, PW1 & PW7 went and met the accused in his office and the accused spoke to PW1 regarding his pending bills. The accused checked his bills and thereafter he asked PW7 to go out of the room. After PW7 left the room, the accused demanded Rs. 25,000/- from PW1. At that time, PW1 was carrying Rs. 20,000/- which were two bundles of currency notes of Rs.100/- each i.e. two bundles of Rs. 10,000/- each. PW1 deposed that after he paid Rs. 20,000/- to the accused, the accused counted the same and then demanded Rs.5000/- and asked PW1 to pay the balance on the next day. Thereafter, PW1 left the room of the accused and then PW1 & PW7 both left the hospital premises. Subsequently, on 24.07.2018 PW1 also identified the place of occurrence in the presence of the investigating officer. It may be mentioned here that the above mentioned testimony of PW1 has been discussed sans the electronic evidence. Even this witness was partially declared hostile by the prosecution and was cross examined.
Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 34 / 42 35 15.7. Even PW1 stuck to the stand that the demand and payment of bribe did not occur when PW7 was also inside the room of accused. PW1 deposed that PW7 had been sent out of the room by the accused. Even PW1 could not recollect the exact date of incident of demand and acceptance of bribe and conducting of the sting operation. PW1 claimed in his cross examination by the accused that it might be of some day in January or February 2014 and that he did not tell the date of sting operation even to the IO, but the sting operation was conducted only once. PW1 admitted that the date which appeared in the recordings was of 25.02.2014. PW1 claimed that two different types of cameras were used for sting operation, one before noon time and one in the evening which were respectively done by PW1 & PW7. At one place in the cross examination PW1 answered that PW7 was also present with him throughout the entire recording, but not much importance can be given to the said stray answer as it seems that PW1 spoke about some second recording conducted by PW7 in the evening hours on that very day and, PW1 was specific at other places in his evidence that before demand and acceptance took place, the accused had sent PW7 outside the room.
15.8. When PW1 was questioned whether he had supplied any document to the IO to prove that his bills were pending with the accused on the date of sting operation, he claimed ignorance. PW1 also claimed that he had received payment of certain bills from PWD after the sting operation, but without checking his records he could not tell as to which were those bills.
15.9. Though, PW1 admitted two communications written by PWD officials to the investigating officer which were also exhibited as Ex.PW1/DA & DB, but in the entire evidence of PW1 he could not specify as to regarding which particular bill the commission of 10% was demanded by the accused.
Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 35 / 42 36 15.10. Ex.PW1/DA dated 30.09.2019 reveals that two of the bills of PW1 were already cleared and amount paid to PW1 in July & August, 2013. Along with this communication of PWD addressed to the investigating officer, few copies of bills mentioned in this letter are also attached. There is another communication dated 04.08.2018 from PWD Ex.PW1/DB. In this communication, there are 25 bills mentioned. Some of the bills were paid in 2013, some in 2014 and, some in 2015. 15.11. However, the investigating officer did not care to collect any of the bills mentioned in Ex.PW1/DB which was under process by the accused or against which the accused demanded bribe. As mentioned above, Ex.PW1/DB is dated prior to Ex.PW1/DA. In Ex.PW1/DB, the details of the bills pertain to the contracts awarded to M/s Hari Om Electronics during 2012-13 & 2013-14. This communication does not specifically speak about any of these bills processed by the accused. 15.12. On the other hand, Ex.PW1/DA dated 30.09.2019 mentions only two bills which were processed qua PW1 by the accused during the tenure of the accused. But then, these two bills were already paid in July & August 2013, and admittedly they were not pending with the accused on the date of alleged sting operation. In the entire evidence led by the prosecution, no bill of PW1 which might be pending at the end of accused in January, 2014 has been proved.
15.13. In his cross examination, PW1 also admitted that he did not note down the currency notes given to the accused. He claimed that he withdrew that amount from his bank account, but neither the IO asked him to provide proof of the same, nor he provided proof of withdrawal of money.
15.14. PW1 also admitted that accused was transferred and relieved from PWD on 20.01.2014. PW1 even admitted in his cross examination that IO did demand the details of the pending bills with the accused, but he did not provide the same due to Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 36 / 42 37 non-availability with PW1. PW1 volunteered that IO collected the same from office of PWD. But then, no such pending bill with the accused qua PW1 is proved by the Prosecution.
15.15. As mentioned above, initially the PWD informed the investigating officer PW18 vide communication dated 04.08.2018 Ex.PW1/DB that 25 contracts were awarded to M/s Hari Om Electronics during 2012-13 and 2013-14 and in the said document the date of running / final bill, the date of measurement, the date of abstract, the date of receiving bill at Division Office from Sub Division Office and, the date of payment are mentioned. But in this document, neither did the PWD inform the IO as to which particular bill of PW1 was pending with the accused at the relevant time or which was processed by the accused after receiving the amount or after the sting operation. In this document, even the date of receiving of bill at Division Office from the Sub Division is not mentioned and instead the PWD informed that no such record is available. From this document, it cannot be made out as to on which date the bill/s were submitted or which of the bill/s was pending at the end of accused in January or February, 2014.
15.16. Subsequent to Ex.PW1/DB, it seems that upon another letter from the investigating agency, the PWD vide its reply Ex.PW1/DA dated 30.09.2019 specifically mentioned the details of running / final bills of PW1 processed during the tenure of accused. In this document Ex.PW1/DA only two bills are mentioned and both of them were paid on 18.07.2013 & 14.08.2013, respectively. Even in this document date of receiving of bill at Division Office from Sub Division Office is not mentioned and instead is mentioned that no such record is available.
Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 37 / 42 38 15.17. Thus, according to Ex.PW1/DA only two bills were processed qua PW1 during his tenure as JE and both those bills were already paid to PW1 long before the alleged month of sting operation.
15.18. It is vehemently argued on behalf of the accused that the accused was admittedly relieved from the office in question on 20.01.2014 upon his transfer to Bhuj and thereafter the accused joined his new place of posting. It is argued that when the date of sting appearing in the video is 25.02.2014, and neither PW1, nor PW7 specifically confirmed the date of sting, the presence of accused in his office is not proved beyond reasonable doubt.
15.19. On the other hand, Ld. Prosecutor argues that PW1 & PW7 both confirmed presence of the accused in his office at the time of demand and acceptance of bribe, therefore, the accused cannot claim that he was not present in his office. 15.20. Ex.A3 which is an admitted document by the accused and which is the relieving order though mentions that the accused was relieved from the maintenance Division M352, Maintenance Circle M-35-Electrical under PWD Maintenance Zone M-3 Electrical on 20.01.2014 afternoon, but this very office order specifically records that as the accused has not yet formally handed over his charge to his successor, he is only provisionally relieved and that relieving for all purposes shall be issued after his formal handing over of charge to his successor. According to this document, the date of transfer of accused is 24.06.2013.
15.21. From the complaint Ex.PW3/A also it is clear that accused joined his new place of posting at Bhuj w.e.f. 17.02.2014. The accused did not prove his exact date of joining.
15.22. Anyhow, from Ex. A3 & Ex.PW3/A, it is clear that though the accused was provisionally relieved on 20.01.2014 but he joined his new place of posting only Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 38 / 42 39 on 17.02.2014. Thus, his presence in the office in question at Delhi between these two dates was quite possible.
15.23. But then merely from the fact that the accused was present in his office in Delhi between that period, no presumption of criminality can be attached and the Prosecution was required to prove the foundational facts of demand and payment of bribe beyond reasonable doubt. The best evidence to prove that fact was to prove the signatures / forwarding notes or any other writing on the bills of PW1 in question against which accused was in a position to demand bribe. The prosecution failed to prove those exact bills or signatures of the accused or forwarding notes etc. which could have proved that in the month of January or mid of February, 2014, the accused processed any such bill qua PW1. As against it, Ex.PW1/DA rather proves that only two bills of PW1 were processed by the accused during his tenure in the office in question and that those two bills had already been paid to PW1 in July & August of 2013, whereas the sting is claimed to have been made in January or February, 2014.
15.24. It is settled law that where a complainant is an interested witness, his testimony needs to be corroborated and in such cases conviction cannot be based on mere testimony of the complainant who is an interested witness. In the case of Rajesh Gupta Versus State Through CBI 2022 SCC OnLine SC 1107, Decided by Hon'ble Apex Court on March 29, 2022, it is held as follows;
"16. In view of the above discussion, except for the testimony of PW3 Madhu Bala (complainant), there is no corroborative evidence of demand, either on 7.3.2000 or 9.3.2000. The law is well-settled by the judgments of this Court in Panna Damodar Rathi v. State of Maharashtra, (1979) 4 SCC 526 and Ayyasami v. State of Tamil Nadu, (1992) 1 SCC 304, Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 39 / 42 40 whereby it has been clarified that the sole testimony of the complainant, who is the interested witness, cannot be relied upon without having corroboration with the independent evidence."
16. On the point of Sanction, it is argued by the accused that the Sanction is defective as the date appearing on the Sanction Ex.PW2/A on the first page and on the second page differs. On the first page of Ex.PW2/A, date of 18 th March, 2020 is written in which the numerical "18" is hand written whereas the remaining part is typed and on the other hand, on the second page of it, there is a hand written date of "17-03- 2020 New Delhi" and PW2 admitted that those hand writings were not his own. It is also argued that draft proforma was sent to the Sanctioning Authority as mentioned in Ex.PW2/C-1 and no sting operation copy was sent to PW2, therefore the Sanction was without application of mind.
16.1. Perusal of the testimony of PW2 reveals that PW2 clarified that the date may be in the hand writing of his PA / Diary Dispatcher and that he could not recall whether any draft of Sanction proforma of the Sanction was received by him. However, he claimed that he accorded Sanction in the matter only after going through all the documents and material placed before him and only after he had applied his mind to the same.
16.2. The Sanction Ex.PW2/A reveals the discussion of facts by the Sanctioning authority.
Merely because the date was endorsed by the PA and/or the diary dispatcher official from the office of PW2 while dispatching the Sanction to the investigating agency would not be enough to discard the sanction.
16.3. Placing of reliance by the accused upon Ex.PW2/C1 which is a communication written by the investigating agency to the Sanction authority seeking sanction, where in the last para it is mentioned that some proforma was sent to the Sanction Authority Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 40 / 42 41 is highly misplaced. In the said para, from the competent authority, Sanction U/s 19 of POC Act is desired and thereafter it is mentioned that the bio-data of the accused also be provided duly signed on the enclosed proforma. Therefore, the word 'proforma' in Ex.PW2/C1 pertains to the bio-data and not Sanction. 16.4. It is clear from communication Ex.PW2/D1 and Ex.PW2/D2, which took place between the Sanction authority and the investigating agency. These two documents were taken on judicial record from the office file of PW2, the Sanctioning authority when he appeared in the evidence. Vide Ex.PW2/D1, the Sanction authority indeed desired from the investigating agency a draft sanction order, but it was specifically refused by the investigating agency in its reply Ex.PW2/D2. Both those things are mentioned in para no. 1 of these two communications. Therefore, it does not lie in the mouth of accused to claim that any draft sanction order was supplied to the Sanction authority at any stage.
16.5. Perusal of the note sheets which were also obtained from the office file of PW2 during evidence, though reveals that at some places signatures of some of the officials while the file was under movement within the office of PW2 are not there, but PW2 specified in his evidence that since the file in office used to be moved online in a software, therefore those notes were not physically signed. There is nothing on the basis of which it can be said that the Sanction accorded in the matter was either without competence or without application of mind or in any manner unreliable. The contention of the accused against the sanction is accordingly rejected.
17. The sum & substance of the above discussion is that the Prosecution fails to prove beyond reasonable doubt the basic foundational facts that the accused demanded bribe or obtained it from PW-1 against any particular bill/s. Benefit of doubt will Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 41 / 42 42 have to be extended to the accused of this case in the back drop of the above mentioned discussion. It is well settled law that where there are two views possible, one favouring the Prosecution and another favouring the accused, the one favouring the accused has to be accepted.
18. In Mousam Singha Roy and Others v. State of West Bengal 2003 (3) JCC 1385 : [(2003) 12 SCC 377], Hon'ble Supreme Court held :
"It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since the higher degree of assurance is required to convict the accused."
19. Benefit of doubt is accordingly given to the accused and the accused Naresh Kumar is acquitted of both the charges.
Announced in the Open Court
on 03rd April 2023 Digitally
DIG signed by DIG
VINAY SINGH
VINAY Date:
2023.04.03
SINGH 14:22:31
+0530
(Dig Vinay Singh)
Special Judge (PC Act) ACB-02
Rouse Avenue Courts
New Delhi
Judgment CNR No. DLCT11-000028-2021 CC No.07/2021 State Vs. Naresh Kumar FIR No. 47/2014 P.S ACB Did. 03.04.2023 Pg. 42 / 42