Delhi District Court
State (Cbi) vs Diwan Chand Kanwal on 28 April, 2012
1
IN THE COURT OF SH. DHARMESH SHARMA
SPECIAL JUDGE03 CBI NEW DELHI DISTRICT,
NEW DELHI
CC No. 38/2011
RC No.27(A)/2009/CBI/ACB/ND
In re:
STATE (CBI)
VS
DIWAN CHAND KANWAL
DARBA RAM KANWAL
R/O B34, SECTOR - 50,
GURGAON, HARYANA.
Date on which charge sheet was filed 30.07.2010
Date on which charges were framed 10.12.2010
Date on which judgment was reserved 17.04.2012
Date on which judgment was pronounced 26.04.2012
APPEARANCES:
Mr. A. K. Mishra, Ld.Sr.PP for the State (CBI).
Mr. R.P.Shukla, Ld. Counsel for the accused.
26.04.2012
JUDGMENT
Accused Diwan Chand Kanwal, posted as Superintendent, Range XVII in the Office of Assistant Commissioner, Service Tax, CGO Complex, Lodhi Road, New Delhi, has been arraigned for trial on the charge that he being a public servant on 28.05.2009 demanded Rs.50,000/ other than legal remuneration from the complainant Kapil Mohan (PW3) in consideration of not issuing State (CBI) v. Diwan Chand Kanwal Page No.1/39 2 notice of assessment in regard to his company M/s Growth Orbit Advisory Services (P) Ltd. for having some erroneous entries in the service tax returns filed by it; and that on 02.06.2009 on the request of the complainant reducing the amount of bribe to Rs. 20,000/ and finally on the same day at about 5.30 PM, he allegedly demanded and accepted bribe of Rs.10,000/ from the complainant and thereby committed an offence u/s 7 and 13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988. The accused pleaded not guilty to the charge and claimed trial. After following due process, this case now comes up for a decision. FACTS
1. Briefly stated, the case of the prosecution is that on 02.06.2009, complainant Kapil Mohan (PW3) filed a complaint Ex.PW3/D with the C.B.I.,to the effect that he is the Director of M/s Growth Orbit Advisory Services (P) Ltd., which has been filing service tax returns; and that the dealing person Mr. Kanwal from Service Tax Department called him on his mobile phone and asked him to meet in his office, otherwise he would issue a notice; and that he met M.r Kanwal on 28.05.2009 and he demanded Rs. 50,000/ in order to refrain from issuing the notice; that not wanting to pay any bribe, he lodged the complaint which was marked to Inspector S.K.Sinha (PW10) vide endorsement Ex.PW10/A for verification of the contents of the complaint. State (CBI) v. Diwan Chand Kanwal Page No.2/39 3
2. It is the case of the prosecution that to verify the alleged demand by the accused, a digital video recorder(for short 'DVR') was arranged in which introductory voice of the independent witness Jagdish Chander (PW5), UDC from the Office of Sanitation, MCD was recorded ; that the complainant PW3 Kapil Mohan accompanied with PW5 Jagdish Chander alongwith SI Anmol Sachhan and PW 10 Inspector S.K.Sinha reached the office of the accused, where the complainant alongwith independent witness held some discussion with the accused in his office canteen; that later the conversation recorded in the DVR confirmed the version of PW3 Kapil Mohan and PW5 Jagdish Chander in regard to demand of bribe ; that the conversation was transferred into a audio CD marked Q1(P1) and consequently the present FIR Ex.PW3/H was registered.
3. It is then the case of the State (CBI) that a decision was taken to lay a trap and services of another witness Ashok Chawla (PW9) from the same department was requisitioned. During the pretrap proceedings PW3 Kapil Mohan produced Rs.10,000/ containing 20 currency notes in the denomination of Rs.500/ each and the distinct numbers of the currency notes were written down in the Handing Over Memo Ex.PW3/J; that as ordinarily happens in the cases, a demo was given by SI Anmol Sachan wherein the currency notes were applied with phenolphthalein State (CBI) v. Diwan Chand Kanwal Page No.3/39 4 powder, which were touched by PW0 Ashok Chawla and his hands were dipped in the solution of Sodium Carbonate, which turned pink and the solution was thrown; that thereafter the treated GC notes were handed over to the complainant PW3 Kapil Mohan with direction to keep the same in his right side pocket of the pant and hand it over to the accused on his specific demand and PW5 Jagdish Chander was directed to remain with the complainant as a shadow witness and overhear the conversation and oversee the transaction of passing of bribe amount that may take place between the complainant and the accused; that PW3 complainant Kapil Mohan was given DVR with direction to put it on as soon as the conversation is struck with the accused and he was also directed to place a missed call from his mobile no.9810130181 to mobile no.9650394843 of Inspector S.K.Sinha; that entire pretrap proceedings were recorded in the Handing Over Memo Ex.PW3/J signed by all the witnesses.
4. It is then the case of the State (CBI) that the CBI team accompanied with the complainant PW3 Kapil Mohan and two independent witnesses PW5 Jagdish Chander and PW9 Ashok Chawla reached Block No.11, 7th Floor, CGO Complex on foot at about 1725 hrs and as directed, complainant alongwith PW5 Jagdish Chander went towards the office of the accused, while the other members of the team took positions around in disguise so State (CBI) v. Diwan Chand Kanwal Page No.4/39 5 as not to raise any alarm; that complainant PW3 Kapil Mohan alongwith shadow witness PW5 Jagdish Chander entered the office chamber of accused at around 1740 hrs and PW5 Jagdish Chander came out of the office and gave pre decided signal and in the meantime a missed call was also received by the TLO Inspector SK Sinha on his mobile phone as previously agreed and the members of the team descended on to the spot, where the accused was present with the complainant and the CBI officials introduced themselves to the accused, who was caught hold by SI Gaurav Singh and Inspector Shyam Parkash and accused was challenged that he had demanded and accepted bribe from the complainant; that complainant PW3 Kapil Mohan and PW5 Jagdish Chander informed that the bribe amount was accepted by the accused with his left hand and after transferring the same to his right hand, kept the amount in the right side middle drawer of the office table and the tainted money was recovered from the drawer by PW9 Ashok Chawla and counted besides its numbers were tallied with the handing over memo Ex.PW3/J, which were found correct; that the DVR was taken back from PW3; that PW5 Jagdish Chander and complainant PW3 Kapil Mohan informed that accused, after accepting the bribe amount, took a water bottle kept on one side and washed his hands with the water and also offered the complainant to have some water which he State (CBI) v. Diwan Chand Kanwal Page No.5/39 6 refused and thereafter PW5 Jagdish Chander was sent outside to fetch some drinks and cigarette.
5. It is the case of the State (CBI) that DVR was played in presence of the witnesses and demand and acceptance of bribe was established; that during the proceedings, the left hand wash and right hand wash with colourless solution of Sodium Carbonate were taken and transferred separately into two neat and clean glass bottles and sealed at the spot ; that thereafter recorded conversation was transferred into two blank audio CDs one was marked Q2 and sealed at the spot while the other was kept for the purposes of investigation; that specimen voice of accused was taken in the DVR which was transferred into a blank CD marked as S1 and sealed at the spot; that during the search of office table of the accused STIII Returns alongwith blank challans of amount of Rs.30,900/ and Rs.26,640/ pertaining to the firm of accused Ex. PW3/A to C were recovered from the table's drawer and the information regarding proceedings was given to Mr. Aseem Nanda (PW6) , Assistant Commissioner, Service Tax who arrived at the spot; that the entire proceedings were recorded in the recovery memo Ex.PW3/K.
6. Needless to state that during the investigation, the hand washes and questioned CDS Q1 and Q2 with S1 were sent to CFSl for expert opinion and report was obtained. Further, after State (CBI) v. Diwan Chand Kanwal Page No.6/39 7 obtaining sanction for prosecution from the competent authority, the present charge sheet was filed against the accused. PROSECUTION EVIDENCE
7. The prosecution in order to prove its case has examined 12 witnesses. The main witnesses of the prosecution were of course complainant PW3 Kapil Mohan, who fully supported the case of the prosecution besides PW5 Jagdish Chander and PW9 Ashok Chawla, who seem to have made rough weather of the prosecution case and I would dwell on their evidence later on in the judgment.
8. Sanction for prosecution dated 19.07.2000 was proved by PW1 R.D.Negi, Commissioner, Service Tax, which is Ex.PW1/A.
9. The two expert witnesses were: PW4 Dr. NM Hashmi, who deposed about his report in regard to hand washes Ex.PW4/A proving it that the solution in the bottles contained traces of Phenolphthalein and Sodium Carbonate and PW7 was Dr. Rajinder Singh, who examined the questioned CDs Q1 and Q2 visavis SI and proved the report Ex.PW7/A, which report was challenged hammer and tongs by the defence and I shall delve into it later on in this judgment.
10. PW2 was RK Singh, Nodal Officer, Airtel , who produced the record in regard to mobile phone no.9810130181 of complainant Kapil Mohan and proved the call details as State (CBI) v. Diwan Chand Kanwal Page No.7/39 8 Ex.PW2/D.
11. Aseem Nanda, Assistant Commissioner, Service Tax was examined as PW6, who was informed by the CBI about the arrest of accused.
12. PW10 was Inspector S.K.Sinha, who was the Trap Laying Officer (TLO).
13. PW11 was Inspector BM Meena, who deposed that he took over the investigation of this case from Inspector SK Sinha and recorded the statement of witnesses u/s. 161 Cr.PC.,besides obtaining documents from Mr. Aseem Nanda vide memo Ex.PW11/A on 28.07.2009. He also deposed about sending the questioned CDs with specimen CD to CFSL vide forwarding letter Ex.PW11/E. He further deposed about obtaining the call records of telephone no.24360029 from the AGM, MTNL, which was the number through which the accused allegedly communicated the complainant. He further deposed about preparing the transcript Ex.PW3/G and Ex.PW3/M besides preparing the transcription cumvoice identification memo Ex.PW3/F and filing the charge sheet in the court.
14. PW12 Inspector Anmol Sachan was associated during the process of verification of the contents of the complaint. STATEMENT OF ACCUSED
15. On close of the prosecution evidence, all the incriminating State (CBI) v. Diwan Chand Kanwal Page No.8/39 9 evidence brought on record were put to the accused u/s 313 Cr.PC. Accused denied that he made any demand and/or accepted any bribe. Accused pleaded innocence and false implication in this case stating that since he had issued demand notices for evasion of service tax of more than Rs.50 crores on several big companies. The defence did not elect to lead any evidence in defence.
16. I have heard Ld.Sr.PP for the State (CBI) and Ld. Defence Counsel for the Act. I have perused the record carefully and minutely.
SANCTION FOR PROSECUTION
17. Shri RP Shukla, ld. Defence counsel assailed the sanction for prosecution granted by PW1 RD Negi dated 19.07.2010 Ex.PW1/A on the ground that it was based on an erroneous premise that complainant had produced Rs.10,000/ in the form of 10 GC notes of Rs.500/ denomination whereas the case of the prosecution was that there were 20 GC notes; and he urged that the prosecution obtained a sanction order as per their choice which is not admissible as per law.
18. I do not find any merit in such challenge. The sanction order is a 31/2 pages detailed order , which reflects that the entire facts and circumstances based on all the documents that were supplied by the CBI were taken into consideration by the State (CBI) v. Diwan Chand Kanwal Page No.9/39 10 Sanctioning Authority before passing the impugned order. There is no dispute about the fact that PW1 was the Competent Authority to remove the accused as per Section 19 (1) (a) of the PC Act. Mere fact, that there was a typographical error or an oversight in regard to expressing that there were 10 GC notes instead of 20 of Rs.500/ in denomination, cannot be said to be fatal to the prosecution case in the face of the fact that the order clearly order that bribe amount was Rs. 10,000/. Moreover, nothing is demonstrated that such error has caused any mis carriage of justice or prejudiced to the accused in terms of Section 19 (3)(a) of the PC Act.
DEMAND & ACCEPTANCE OF BRIBE.
19. The prosecution in order to bring home the charge u/s 7 of PC Act is required to prove that the accused either accepted , obtained or attempted to attain illegal gratification from the complainant; and in order to establish the guilt of the accused u/s 13(2) r/w section 13 (1) (d) of PC Act, the prosecution is required to establish that the accused by corrupt or illegal means or by abusing his official position, obtained advantage or a valuable for himself or any other person. In the case of Krishna Ram. Vs,. State of Rajasthan, (2010) 1 SCC (Cri) 147 and (2009) 11 SCC 708, it was held that every acceptance of illegal gratification, whether preceded by a demand or not, would be covered by State (CBI) v. Diwan Chand Kanwal Page No.10/39 11 Section 7 of the Act. But, if the acceptance of an illegal gratification is in pursuance of a demand by the public servant, then it would also fall under Section 13 (1)(d) of the PC Act.
20. In the light of the said proposition of law at the back of our mind, let us examine the evidence brought on the record by the prosecution. The complainant PW3 Kapil Mohan deposed that his company had been filing service tax returns; that it filed returns for the year 200809 Ex.PW3/A dated 25.10.2008 alongwith two bank challans dated 07.10.2008 and 14.07.2008 Ex.PW3/B and Ex.PW3/C respectively; that on 27.05.2009 he received a call on his mobile phone no.981013018 from one Mr. Kanwal, who called upon him to visit the Service Tax Office as there was some problems in the return filed by them; that he sent one of his employee Sushant to the office next day but in the after noon he rang him up apprising him that Mr. Kanwal told him that he would like to see some senior person; that he reached the Service Tax Office at about 4.00 - 5.00 PM and met the accused in his office located on the 7th floor of the building; that on such meeting, accused told that there was some deficiencies in the service tax returns and penalty amounting to lakhs of rupees could be imposed upon them ; that the accused in order to get them wriggle out the situation demanded Rs.50,000/ telling that the money would be shared with the higher officials and told State (CBI) v. Diwan Chand Kanwal Page No.11/39 12 that if such amount is paid, notice would not be issued otherwise he would be forced to run from pillar to post. Complainant PW3 Kapil Mohan testified that he felt very bad about the incident but any how he promised the accused that he would see what could be done because Rs.50,000/ was a big amount.
21. PW3 Kapil Mohan then deposed that next day he went to the CBI office and met Shri NM Singh, SP,CBI, who was busy and could hear him for two minutes only and told him to come on the following day i.e. next Monday or Tuesday as he was busy that day; that on Monday i.e. 01.06.2009 he could arrange Rs.10,000/ and then on Tuesday i.e. 02.06.2009 he reached the CBI office around lunch time and met Shri NM Singh, SP,CBI and submitted a complaint Ex.PW3/D.
22. To cut the long story short, the evidence on the record brings out that complaint was marked to PW10 Inspector SK Sinha, services of PW5 Jagdish Chander as an independent witness was requisitioned and in order to verify the contents of the complaint, the CBI team reached the office of the accused and PW3 Kapil Mohan was provided a DVR with the direction to switch it on as soon as the conversation is struck with the accused; that as instructed PW3 Kapil Mohan alongwith PW5 Jagdish Chander met the accused; that accused did not have any discussion with them in his room and took complainant PW3 State (CBI) v. Diwan Chand Kanwal Page No.12/39 13 Kapil Mohan and PW5 Jagdish Chander to the canteen on the same floor but as the lunch hours had finished, the canteen had nothing to offer and then accused took them to BSF Canteen Prahari on the ground floor of the adjoining building. It is in the evidence of complainant PW3 Kapil Mohan that once they were seated in the BSF Canteen, the conversation started and he apprised the accused that he could not arrange Rs.50,000/ and requested him to reduce the demand to Rs.10,000/ and and finally the deal was struck for Rs.20,000/; that he left the canteen with PW5 Jagdish Chander telling the accused that he would meet him after sometime and they all went back to the CBI office where the DVR was played, which confirmed the demand consequent to which the present FIR Ex.PW3/H was registered; that the tape recorded conversation was transferred into two blank CDs and one of the CD Q1 was sealed , signed by the independent witness PW5 Jagdish Chander, while the second one was kept for investigation. In so far as, the pre trap proceedings are concerned, the evidence on the record clearly brings out that services of another witness Ashok Chawla (PW9) was also requisitioned ; that PW3 Kapil Mohan produced 20 GC notes in the denomination of Rs.500/ each totalling Rs.10,000/, which were smeared with Phenolphthalein Powder after routine demo; that numbers of the currency notes were noted down besides the State (CBI) v. Diwan Chand Kanwal Page No.13/39 14 entire proceedings in the Handing Over Memo Ex.PW3/J signed by PW3 besides the two independent witnesses and the CBI officials.
23. PW3 Kapil Mohan then testified that the introductory voice of both the witnesses were recorded in the DVR and the entire team reached the Service Tax Office at about 5.15 PM; that complainant PW3 Kapil Mohan alongwith PW5 Jagdish Chander as the shadow witness went towards the office of the accused, while the CBI officials alongwith PW9 Ashok Chawla took position around; that as they entered the room of the accused alongwith PW5 Jagdish Chander, he switched on the DVR; that the accused had a visitor sitting before him so he told them to wait in the canteen nearby; that they kept waiting in the canteen for sometime and as the canteen was closing for that day and the fans were switched off , they left the canteen and again came back to the office of the accused and found that the same visitor was still with the accused; that they kept waiting outside the room of the accused near a photo copy machine/scanner and passed time while talking to the machine operator. Complainant PW3 Kapil Mohan deposed that as soon as the visitor left, he alongwith PW5 Jagdish Chander entered his room ; that accused was handed over Rs.10,000/ , who while accepting the same with his left hand and thereafter transferring the same into his right hand kept the State (CBI) v. Diwan Chand Kanwal Page No.14/39 15 money in his office table drawer and asked for the remaining Rs. 10,000/ commenting that he had reduced the demand from 50 to
20. Complainant PW3 Kapil Mohan deposed that he requested him to keep 10 and to settle for that amount only but the accused rather offered to return back the Rs.10,000/ and thus he promised to send the remaining ten the following day.
24. Complainant PW3 Kapil Mohan then deposed that as soon as the transaction was over, he sent the witness PW5 Jagdish Chander out of the room to give a signal to the CBI on the pretext of arranging some water or frooty; that accused in the meanwhile offered him some water from the bottle, which was lying near him; that he refused but accused drank some water and washed his hand and kept the water bottle back to its place; that soon thereafter the CBI team officials barged into the room and apprehended the accused holding him by his both wrists and DVR was taken back from the him. The version of PW3 Kapil Mohan is that thereafter one Aseem Nanda, senior officer of department was called and the tainted money was recovered from the drawer by PW9 Ashok Chawla and the numbers of the currency notes recovered were compared with the Handing Over Memo Ex.PW3/J and were tallied. He further deposed that the hand wash of both right and left hand of the accused was taken with the solution of Sodium Carbonate but it did not turn pink and the solution was State (CBI) v. Diwan Chand Kanwal Page No.15/39 16 transferred into two clean glass bottles and sealed in their presence marked as P1 and P2 and the entire proceedings were recorded in the recoverycumseizure memo Ex.PW3/K signed by all the witnesses.
25. Complainant PW3 Kapil Mohan was subjected to a grueling lengthy cross examination by the defence and I find that he comes out absolutely unscathed. The entire version given by Complainant PW3 Kapil Mohan is very clear, vivid and without any serious embellishment and nothing has come out in his evidence that he had any motive to falsely implicate the accused. The evidence of PW3 Kapil Mohan clearly indicates that accused took him to the canteen from one place to another that is corroborated by PW5 Jagdish Chander and then struck a discussion with him, demanded illegal gratification and the said version has not been challenged. There is no dispute that the accused and PW3 Kapil Mohan did not have any prior acquaintance. The plea of the defence is that PW3 tempted the accused on the pretext that he was famished due to heat, that I find rather amusing since PW3 had all the reasons to be persistent to prevail upon the accused to make him reduce his demand and obviously the accused wanted to discuss the deal on neutral territory. The circumstance that accused took the complainant to one canteen after the other and then had a discussion with them, State (CBI) v. Diwan Chand Kanwal Page No.16/39 17 goes beyond the call of his duties and raise an inference that accused was abusing his official position in order to seek illegal gratification.
26. All said and done, as a matter of caution and prudence , it is necessary to look for corroboration of the version of PW3. Much heavy weather is made by the ld.defence counsel that both PW5 Jagdish Chander and PW9 Ashok Chawla did not fully support the case of the prosecution and were treated as hostile witnesses. As to how evidence of a witness has to be appreciated, the Supreme U. P Court observes as follows in State of . v. M. K. Anthony , AIR 1985 SC 48 : (1985 Cri LJ 493):
"While appreciating oral evidence of a witness, the approach must be whether the evidence of the witness read as whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in evidence as a whole, and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief."
27. In Sardul Singh v. State of Haryana, AIR 2002 SC 3462, it is observed as under :
"There cannot be a prosecution case with a castiron perfection in all respects and it is obligatory for the Courts to analyse, sift and assess the evidence on record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting an objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of State (CBI) v. Diwan Chand Kanwal Page No.17/39 18 truth and if found acceptable and seems to inspire confidence, too, in the mind of the Court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core. Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt."
28. In view of such principles of appreciation of evidence, at the cost of repetition, in so far as the verification proceedings and the pre trap proceedings are concerned, PW5 Jagdish Chander and PW9 Ashok Chawla do not put any dent in the prosecution case. Indeed PW5 Jagdish Chander was allowed to be cross examined by ld. Sr.PP but that does not imply that his entire testimony has to be washed out so as to throw away the prosecution case in its entirety. It must be stated here that the principle of falsus in onu falsus in omnibus is not followed under the Indian Criminal Law System and Section 154 sub section 2 of the Indian Evidence Act enables the prosecution to rely on that part of the testimony of the witness that supports the broad probabilities of its case. Reflecting on the evidence of PW5 Jagdish Chander,he admitted that he went alongwith Complainant PW3 Kapil Mohan and met the accused in his office but stated that he could not hear the entire conversation as he was sitting little away and there was a lot of noise around. State (CBI) v. Diwan Chand Kanwal Page No.18/39 19 Similarly, when it came to time of the trap, he accepted that accused had demanded money from the complainant but denied that on such demand, the complainant had given the bribe amount to the accused in his presence. PW5 Jagdish Chander rather deposed that he had been sent outside and the money was not paid in his presence. It is said that "men may tell lies but not the circumstances". This court noted the demeanour of PW5 and recorded an observation that he was not spontaneous with his replies, trying to confuse the questions put to him and coming with evasive replies and attempted to beat the truth. Though PW 5 had utter disregard for the truth, I do not see how the defence could benefit out of it. When on some meaningful cross examination by ld. Sr. PP, PW5 Jagdish Chander was confronted with the tape recorded conversation, he clearly admitted that on both occasions i.e., at the stage of pre verification and later at the time of trap, conversation between the complainant and the accused was recorded by use of DVR available with Complainant PW3 Kapil Mohan. At the cost of repetition, he was present during the discussion between PW3 and the accused and conceded that "kuchh len den ki baten huyi thi par kuch der baad mujhe kapil mohan ne thanda laane ke liye bahar bhej diya" and his evidence on the general tenor of the facts and circumstance rather supports broad probabilities of State (CBI) v. Diwan Chand Kanwal Page No.19/39 20 the prosecution case.
TAPE RECORDED CONVERSATION
29. At this juncture, it would be expedient to dwell upon the manner in which the conversation was recorded and the questioned CDs Q1 at the time of verification and Q2 at the time of main transaction were obtained. Ld defence counsel has relied on the decision in Ram Singh & Ors. v. Col. Ram Singh, 1985 (Supp) SCC 611 in where the conditions necessary for admissibility for tape recorded statements were laid down as under :
(i) The voice of the speaker must be duly identified by the maker of the record or by others who recognize 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.
(ii) The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial.
(iii) Every possibility of tampering with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
(iv) The statement must be relevant according to the rules of Evidence Act.
State (CBI) v. Diwan Chand Kanwal Page No.20/39 21
(v)The recorded cassette must be carefully sealed and kept in safe or official custody.
(vi) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
30. Much mileage was sought to be drawn by Shri RP Shukla, ld. Defence counsel from the fact that the original DVR or the micro chip in the DVR that originally recorded the conversation between the accused and Complainant PW3 Kapil Mohan on two occasions was not preserved nor sent to the CFSL for examination as conceded by PW 7 Dr. Rajinder Singh. Undoubtedly, as per Section 62 of the IE Act, the original DVR or its micro chip was the primary document being the original electronic record. However, Section 65B of the I.E.Act makes a departure providing that an information or data contained in an electronic record that is printed on a paper, stored or copied on an optical or a magnetic media produced from a computer shall also be deemed to be a document if the conditions laid down in sub section 2 to Section 65B of I.E.Act are satisfied. Let me point out at the outset, there is no certificate u/s. 65B (2) of the I.E.Act. However, that does not mean that the CDs Q1 and Q2 should be discarded altogether since want of certificate mandates that now further proof is required to be established so as to make them admissible as per section 65B of IE Act in the absence of the State (CBI) v. Diwan Chand Kanwal Page No.21/39 22 original.
31. First and the foremost question that has to be examined is as to whether the questions CDs Q1 and Q2 have any relevancy i.e., throwing any light on the matters in issue for which there could be no other answer but in the affirmative. The second issue that comes for consideration is the authenticity of the questioned CDs so as to make the same admissible in evidence. In this regard, evidence of PW3 Kapil Mohan is corroborated by PW5 Jagdish Chander that his introductory voice was taken on the DVR to ensure its blankness and the recorded conversation was heard by them in the office of CBI and confirmed vide voice verification memo Ex.PW3/E and the evidence that the voice of the accused was identified is unimpeached. Also unimpeached is the evidence of PW3, PW5 and PW10 that the recorded voice was transferred on two CDS with the help of a laptop and the CD mark Q1 was sealed. PW12 Anmol Sachan corroborated that the verification memo Ex.PW3/A was prepared in his presence and he further corroborated that he had carried out the transfer of data from the digital voice recorder to the CD. Mere fact that tempering was possible is not a factor to disregard the evidence nor a rule of practice or prudence; and there is nothing to indicate that there was any tempering with the data during the State (CBI) v. Diwan Chand Kanwal Page No.22/39 23 process of such transfer.
32. Similarly, at the time of main transaction, PW5 Jagdish Chander as well as PW9 Ashok Chawla corroborated the version of Complainant PW3 Kapil Mohan that the introductory voices were taken in the blank DVR before proceeding for the trap and after the trap was over, the recorded conversation was heard by them at the spot and the voice of the accused was identified vide memo Ex.PW 3/K and the specimen voice of the accused was also taken in the digital voice recorder which was transferred on to a CD mark S1 at the spot which proceedings were written in the recoverycumseizure memo Ex.PW3/K. There is nothing in the evidence of the witnesses to even remotely suggest that there was any tempering with the device so as to distort the conversation or that the process of transferring of data was flawed in any manner. PW12 was not given any suggestion that any editing or tampering was done in the recording during the process of such transfer of data on to the CD.
33. The evidence of PW7 Dr. Rajinder Singh that the questioned CDs Q1 and Q2 were examined by him visavis CD mark S1 and his version that the questioned CDs contained the voice of accused ascertained as per linguistic, phonetic and other general spectrographic parameters was not challenged. While linguistic or phonetic comparison might not be full proof, the spectrograph State (CBI) v. Diwan Chand Kanwal Page No.23/39 24 tests have a high degree of scientific accuracy. The fundamental principle of voice identification rests on the fact that every voice is unique and individually characteristic enough to distinguish it from other through analysis likc a finger prints.The spectrogram serves as a permanent record of the words spoken and facilitates the visual comparison of similar words spoken by an unknown and known speaker's voice. I thus find that the report Ex.PW7/A is also unimpeached.
34. I must indicate another observation here that both the questioned CDs Q1 (Ex.P1) and Q2 (Ex.P25) were heard by this court not only during the recording of evidence but also at the stage of final arguments. First thing first, there is no challenge by the defence that the conversation does not contain the voices of the accused. Secondly, the audio quality in the two CDs is very good albeit with background noises but free from any gaps, pauses, distortion thereby making the dialogues very clearly audible. Thirdly, there is no dispute raised about the continuity of recording nor that I have found anything to suggest that any editing of the recording was done. Fourthly, the entire tape recorded conversation heard as a whole in the contextual setting of the case, makes it free from any doubt about its genuineness .
35. It is pertinent to mention here that the audio recording Q1 Ex.P1 is for about 20:30 seconds and it is in the evidence of PW3 State (CBI) v. Diwan Chand Kanwal Page No.24/39 25 Kapil Mohan that during the conversation accused had received a call which was attended by him and the recorded conversation corroborates such fact. Further the CD Q2 Ex.P25 is for a running time of 17 minutes , 13 minutes were involved in the waiting period as comes out in the version of Complainant PW3 Kapil Mohan and it is in the last 4 minutes that the entire conversation about demand and acceptance of money is concluded. Thus, the test of authenticity is passed and that makes the CD Q1 and Q2 admissible in evidence.
36. That brings us to the third crucial aspect about probative value of the electronic evidence i.e., CDs and for that let us look into the transcript Ex.PW3/G in regard to the verification process on 02.06.2009. The relevant paras in the transcript which conform to recorded conversation Q1 (P1), goes as under : "Complainant Kul kitne dene hai, kul kitne dene hai. Dus thik hai.
Accused Pachas se kum kya
Complainant Kitne kum karne hai.
Accused voice is not clear
Complainant Bus thik hai, kar do na riyayat kabhi kabhi to.
Business to karna hi hai. Aisa nahin hai ki
business na karo. Dhanda band karna ho to bat hai ki bhaiya dhanda band karna hai chalo jaise marji hota rahega. Roj ka kam hai, par koi bat nahin, khane ko loge. Bhookh lag rahi hai vaise, kuch khaya nahin hai na, lunch nahin karna hai.
State (CBI) v. Diwan Chand Kanwal Page No.25/39 26 Accused Ye bahut sasti canteen hai. Ye BSF ki canteen hai.
Complainant Recession ne bahut bura mar rakha hai logo ko, kahin pe bhi kuch kaho na to recession ne itna bura mar rakha hai, bahut bura hail kar rakha hai. Har jagah bahut bura hai. Usko to naukari se nikal denge ab. Ho gai bat, usko to kam milega nahin hamare yahan. Vahi kah raha tha, us per nam thode he kharab karna hai, abhi nikala nahin hai par kah diya hai kahin aur dhoondh le.Vo return thik ho jayegi, Fluid lagega.
Accused Han ji, abhi phone aya tha kisi ka. Aap aa jao 5 baje ke aas pass. Nahin main busy hoon. A ji.
Han, main 6 baje tak baitha hun. Hoti hai mistake. Uske senior ki mistake hai. Par ladka hai, 105 hazar wala hai.
Complainant Han, par galti to vahin se shuru go gai na. Shuri hote hote aakhir mai koi jane deta nahin voice is not clear Accused Bali ka bakra Kya kah rahe ho aap. Complainant Na aapke man mein bat rahe na mere man mein bat rahe.
Accused Bis hazar.
Complainant Bis hazar. Kitne baje tak ho aap sham ko 6 baje
tak. Main Income Tax Office se aa raha hoon
abhi. Aa jayenge, aaj phir. Ye aayenge ya phir main aaonga, yahin milenge na aap. Phone kar loonga to niche yaha mil jana yo uper mil jaoge, helmet le liya. Aur kisi ka to nahin hai na. Baki kisi aur ke pas file bhej rakhi ho aur koi . Aapka transfer ho gaya to.
Accused Apki mere se bat hui hai na, kisi aur ko main apne aap dekh loonga."
State (CBI) v. Diwan Chand Kanwal Page No.26/39 27
37. The entire conversation reveals that PW3 tried to bargain with the accused and got the demand for bribe reduced and sought time to make payment on the pretext that he was coming from the Income Tax Office and would approach him later with the money. Further the transcript Ex.PW3/M that confirms to the tape recorded conversation mark Q1 which is portion X to X goes as under : "Complainant Nahi aap Accused Kitne hai, Complainant Dus.
Accused Bis kah rahe the. Complainant Philhal aaj itna hi ho paye hai. Accused Yar aisa mat karo. Complainant Dus aur pahunchwa dunga. Accused Yar aisa mat karo. Complainant Dus aur pahunchwa dunga. Accused Ikattha hi karwa dena. Complainant Na aap ye rakh lo. Accused Aisa Hota nahin hai hamare yahan pe. Complainant Are sir. Aise bhi mat karo, balk ko thoda sa to t
ime do . Saans,. Subah se roti bhi nahi khayee hai tumhe pata hi hai. Nasta bhi na kara. Bina naste ke. Are yar cigarette vigarette to kuch to pilwa do yar. Uper main bhag ke aaya hoo.
Maine kaha aap chale na jao.
State (CBI) v. Diwan Chand Kanwal Page No.27/39 28
Accused Pani. Complainant Pani nahi cigarette hi le aa yar niche se. Yaar
thahar. Frooti le aiyo yar ek. Frooti le aiyo bhai. Yahan to me nahin. Canteen bandh hai. Frooti le aiya vahin se. Main aaj subhah se khane ko mayassar nahin hua. Ek kam no karo, dus mai hi nipta do ise"
38. The said conversation leave no scope for doubt that accused demanded and accepted illegal gratification from PW3. The convict was scrutinizing the service returns of the concerned company and it is in evidence of all the witnesses that the documents Ex. PW3/A to PW3/C were recovered from one of the table's drawer of the accused.
39. In the case of R. M. Malkani v. State of Maharastra, 1973 Cr.L.J. 228, it was observed:
"Tape recorded conversation is admissible provided that the conversation is relevant to the matters in issue, that there is identification of the voice and that the accuracy of the conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under S. 8. It is res gestae. It is also comparable to a photograph of a relevant incident. The conversation is therefore a relevant fact and is admissible under S. 7." (Para 23) DEFECTIVE INVESTIGATION
40. Much mileage was also sought to be taken by the defence from the fact that PW9 Ashok Chawla did not corroborate the case of the prosecution that the tainted money was taken by him from the table drawer in the office of the accused. That hardly cuts State (CBI) v. Diwan Chand Kanwal Page No.28/39 29 much ice. The version of Complainant PW3 Kapil Mohan was corroborated by PW10 Inspector SK Sinha and Complainant PW3 Kapil Mohan was not given any suggestion by the defence that the tainted money was thrusted upon the accused or that it was forcibly put in the office table's drawer of the accused by him nor such case of the prosecution is made out by PW5 Jagdish Chander and PW9 Ashok Chawla. No suggestion was given to the witnesses that accused complained that money was planted or thrusted upon him by the complainant either.
41. Although an irregularity was committed during the investigation in as much as after apprehending the accused, the Trap Laying Officer PW10 SK Sinha should have taken swap of the water lying on the floor of the office room containing the hand wash of the accused, (if the version of PW3 is believed) and the TLO should have taken the plastic bottle into his custody, this blemish can not be fatal to the prosecution in the light of truthful account of the witnesses that the hand wash of the accused did not turn the solution into pink. Had there been an attempt to falsely implicate the accused, the CBI officials could have very well even covered this ground. It is pertinent to mention here that the proceedings in regard to hand wash of the accused are not denied and the report Ex./PW4/A that the hand wash bottles P1 and P2 contained traces of Phenolphthalein and Sodium State (CBI) v. Diwan Chand Kanwal Page No.29/39 30 Carbonate has not been assailed either. It is possible that some residue of Phenolphthalein remained on the hands despite the accused washing his hands that came up during the chemical examination of the hand washes.
42. Shri Shukla ld defence counsel relied on decision in the case of C. Muniappan and Others v. State of Tamil Nadu (2010) 9 SCC 567 which is an authoritative pronouncement about several aspects of criminal law and I do not see as to how the case law helps the accused. Rather in para 55 of the judgment, in reference to lapse in the investigation, it was observed as under that could wind up the plea of the defence:
Defect in the investigation by itself cannot be a ground for acquittal. Investigation is not the solitary area for judicial scrutiny in a criminal trial. Where there has been negligence on the part of the investigating agency or omissions etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of the finding out the truth. The conclusions of the trial in the case cannot be allowed to depend solely on the probity of investigation. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. (Para 55) State (CBI) v. Diwan Chand Kanwal Page No.30/39 31
43. One blemish on the part of Tlo/IO not taking swab of fallen water droplets on the floor or not seizing the water bottle can not be decisive victory for the defence. Lastly, I would be failing in my duties if I do not refer to the case law relied upon by Ld. Defence counsel Mr. R. P. Shukla. In the case Dharambir Khattar v. CBI, Crl. M. C. 1775/2006, decided by High Court of Delhi, vide order dated vide para no. 11.1 an 11.6 it was directed that copy of mirror images of the hard disk should be supplied to the accused and non supply of the same resulted in violation of fundamental rights of the accused. In my opinion, the case law cited has no relevance in the instant case. Such observations were made at the stage of supply of documents in terms of Section 207 of Cr.P.C and it was a case where hard disks pertaining to several telephonic conversation as amongst the accused were also seized and sent to Andhra Pradesh Forensic Science Laboratory and their mirror images were also available. The accused persons were given liberty to inspect the hard disk so as to enable them to ascertain the full facts of the case against them by the State (CBI). Ld. Defence counsel also cited case of Paramjeet Singh alia Pamma v. State of Uttrakhand (2010) 10 SCC 439 and urged where the offence alleged to have been committed is a serious one the prosecution must provide greater assurance that its case has been proved beyond reasonable doubt. Well, there could be no quarrel State (CBI) v. Diwan Chand Kanwal Page No.31/39 32 that more serious the offence, stricter the degree of proof required. The case cited is also an authority that laid down that the Court has to judge evidence by yardstick of probabilities, its intrinsic worth and the animus of witnesses. In para no. 15 to 20 of the cited judgment it was was also observed that the evidence of a witness does not become effaced from the record merely because he turned hostile and the court has to read and consider the whole evidence of such witness as to find out what weight should be attached to it. The instant case is one where although I find that PW5 Jagdish Chand has no record for truth, the testimony of PW3 Kapil Mohan corroborated by the tape recorded conversation is sufficient to nail the accused.
44. The case of Prem Raj Meena v. CBI 2011 (11) Crimes 730 DHC was also cited. I am afraid it was a case where the complainant had admitted that he had himself put the money in the briefcase of the accused and coupled with the other discrepancies that were brought on the record it was found difficult to raise an inference that illegal gratification was demanded or accepted by the accused. The case of State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200 was also cited that inter alia in the context of Section 20 of the PC Act lays down that before the accused is called to State (CBI) v. Diwan Chand Kanwal Page No.32/39 33 explain as to how the amount was found in his possession the foundational facts must be established by the prosecution.
45. At the cost of repetition, the prosecution has laid down the foundational facts in the evidence of PW3 supported by the tape recorded conversation in the most reliable and trustworthy manner.
CONCLUSION
46. Therefore, in the light of the evidence discussed above, I find that the prosecution has been able to prove beyond reasonable doubt that accused Diwan Chand Kanwal demanded and accepted illegal gratification from Complainant PW3 Kapil Mohan. As the evidence clearly brings out that the tainted money was recovered from the table drawer of the accused, the presumption u/s 20 of the PC Act also comes to the fore.
47. I, therefore, convict the accused u/s. 7 and 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption Act. Let the accused be heard on the point of sentence on 28.04.2012. ANNOUNCED IN THE OPEN COURT TODAY: ON 26.04.2012.
(DHARMESH SHARMA) SPECIAL JUDGE 03 (CBI) NEW DELHI State (CBI) v. Diwan Chand Kanwal Page No.33/39 34 CC 38/11 CBI v. Diwan Chand Kanwal 26.04.2012 Present : Mr. A. K. Mishra, Ld.Sr.PP for the State (CBI).
Mr. R. P. Shukla, Ld. Counsel for the accused. Vide separate detailed judgment of even date, I find that the prosecution has been able to prove beyond reasonable doubt that accused Diwan Chand Kanwal demanded and accepted illegal gratification from Complainant PW3 Kapil Mohan. As the evidence clearly brings out that the tainted money was recovered from the table drawer of the accused, the presumption u/s 20 of the PC Act also comes to the fore.
I, therefore, convict the accused u/s. 7 and 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption Act. Let the accused be heard on the point of sentence on 28.04.2012.
(DHARMESH SHARMA) SPECIAL JUDGE 03 (CBI) NEW DELH State (CBI) v. Diwan Chand Kanwal Page No.34/39 35 IN THE COURT OF SH. DHARMESH SHARMA SPECIAL JUDGE03 CBI NEW DELHI DISTRICT, NEW DELHI CC No. 38/2011 RC No.27(A)/2009/CBI/ACB/ND In re:
STATE (CBI) VS DIWAN CHAND KANWAL DARBA RAM KANWAL R/O B34, SECTOR - 50, GURGAON, HARYANA.
Date on which charge sheet was filed 30.07.2010 Date on which charges were framed 10.12.2010 Date on which judgment was reserved 17.04.2012 Date on which judgment was pronounced 26.04.2012 APPEARANCES: Mr. A. K. Mishra, Ld.Sr.PP for the State (CBI). Mr. R.P.Shukla, Ld. Counsel for the accused. 28.04.2012 ORDER ON THE POINT OF SENTENCE.
1. Heard on the point of sentence and perused the record.
2. Mr. Shukla, Ld. Counsel for the convict submits that convict Diwan Chand Kanwal is about 58 years of age, the sole bread earner of his family and he has been under suspension since the date of incident getting a meager sustenance allowance. It is urged that the convict has a marriageable daughter aged about 19 State (CBI) v. Diwan Chand Kanwal Page No.35/39 36 years who is doing degree in Journalism and Mass Communication (First Year) besides young son who is about 22 years of age and also studying. It is stated that his wife is not earning and totally dependent upon him. It is pointed out that the convict was in Judicial Custody from 03.06.2009 to 16.07.2009.
It is, therefore, requested that a lenient view may be taken in favour of the convict.
3. Per contra, Mr. K. S. Thakur, Ld. Special PP for the CBI has urged that no mitigating circumstances exists in this case so as to take a lenient view in favour of the convict and it is urged that maximum punishment be awarded under the law.
4. It bears repetition that the convict Diwan Chand Kanwal was posted as Superintendent, Range XVII in the Office of Assistant Commissioner, Service Tax, CGO Complex, Lodhi Road, New Delhi, and he demanded illegal gratification of Rs.50,000/ from the complainant . The details facts and circumstances under which the convict demanded illegal gratification from the complainant have already been detailed in judgment dated 26.04.2012. The facts brought on the record demonstrate the desperation with which the convict demanded and accepted the illegal gratification of Rs.10,000/ from the complainant. The convict was not a low ranking official in the hierarchy of the Sales Tax Department. It is manifest that the convict by his misconduct State (CBI) v. Diwan Chand Kanwal Page No.36/39 37 not only harassed the complainant but also caused loss to the revenue of the State.
5. In the totality of the facts and circumstances of the case, I sentence the convict Diwan Chand Kanwal to undergo rigorous imprisonment for a period of 3 years u/s 7 of PC Act and also pay fine of Rs. 50,000/ in default to further undergo RI for a period of six months.
6. I further sentence the convict Diwan Chand Kanwal to undergo rigorous imprisonment for a period of 3 years u/s 13 (2) r/w 13 (1) (d) of PC Act and also pay fine of Rs.50,000/ in default to further undergo RI for a period of six months. Both the sentences shall run concurrently. Benefit u/s. 428 Cr.PC. shall be given to the convict.
7. At this stage, an application is moved u/s 389 of Cr.P.C seeking suspension of sentence and grant of bail. Copy given to the Ld. Special PP for the CBI who has opposed the same.
8. Heard. The convict has been regularly appearing in the trial. The convict appears to be full of remorse and regrets this unsavory incident in his life. The convict is admitted to bail on furnishing PB&SB in the sum of Rs.50,000/ with one surety in the like amount till 31.05.2012.
9. Fine of Rs.1,00,000/ has been deposited by the convict vide receipt no.0461408. Copy of the judgment dated 26.04.2012 and State (CBI) v. Diwan Chand Kanwal Page No.37/39 38 and order on sentence dated 28.04.2012 be given free of cost to the convict.
10. File be consigned to record room.
ANNOUNCED IN OPEN COURT TODAY: ON 28.04.2012.
(DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
State (CBI) v. Diwan Chand Kanwal Page No.38/39 39 CC No. 38/2011 State (CBI) v. Diwan Chand Kanwal 28.04.2012 Present : Mr. A. K. Mishra, Ld.Sr.PP for the State (CBI).
Mr. R.P.Shukla, Ld. Counsel for the accused. Vide separate detailed order on sentence, I sentenced the convict Diwan Chand Kanwal to undergo rigorous imprisonment for a period of 3 years u/s 7 of PC Act and also pay fine of Rs. 50,000/ in default to further undergo RI for a period of six months.
I further sentence the convict Diwan Chand Kanwal to undergo rigorous imprisonment for a period of 3 years u/s 13 (2) r/w 13 (1) (d) of PC Act and also pay fine of Rs.50,000/ in default to further undergo RI for a period of six months. Both the sentences shall run concurrently. Benefit u/s. 428 Cr.PC. shall be given to the convict.
At this stage, an application is moved u/s 389 of Cr.P.C seeking suspension of sentence and grant of bail. Copy given to the Ld. Special PP for the CBI who has opposed the same.
Heard. The convict has been regularly appearing in the trial. The convict appears to be full of remorse and regrets this unsavory incident in his life. The convict is admitted to bail on furnishing PB&SB in the sum of Rs.50,000/ with one surety in the like amount till 31.05.2012.
Fine of Rs.1,00,000/ has been deposited by the convict vide receipt no.0461408. Copy of the judgment dated 26.04.2012 and and order on sentence dated 28.04.2012 be given free of cost to the convict.
File be consigned to record room.
(DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
State (CBI) v. Diwan Chand Kanwal Page No.39/39