Delhi District Court
State vs Ravi Kant Sharma on 13 April, 2015
1
IN THE COURT OF SH. NAROTTAM KAUSHAL,
SPECIAL JUDGE (PC Act)05, (ACB), (CENTRAL),
TIS HAZARI COURTS, DELHI
Date of Institution : 30.08.2012
Date of reserving the Judgment : 08.04.2015
Date of pronouncing the Judgment : 13.04.2015
Corruption Case No. : 24/2012
FIR No. : 38/2008
Case Identification No. : 02401R0407722012
Police Station : Anti Corruption Branch
Under Section : 7/13 of Prevention of
Corruption Act, 1988
& 120B IPC
STATE
Versus
Ravi Kant Sharma
S/o Sh. Suraj Mal Sharma
R/o 6H/34, Sector 5, Rajinder Nagar,
Shahibabad, Uttar Pradesh
Sunil Kumar Mittal
(Since discharged vide order dt. 08.01.2013)
S/o Shri Om Prakash Mittal
R/o D72, Ashok Vihar, Phase - I,
Delhi.
JUDGMENT
1.1 Sudhir Bhardwaj S/o N.N. Bhardwaj was a registered contractor with MCD under the name and style of M/s Aziz Builders. He claims to have carried out construction work in the Shahdra (North) Zone of MCD against Work Orders, for an amount of Rs. Twenty eight lacs. It is further his case that Assistant Engineer Ravi Kant Sharma ( hereinafter State Vs. Ravi Kant Sharma Page 1 of 30 2 called as R.K. Sharma) and Executive Engineer Sunil Kumar Mittal ( hereinafter called as S.K. Mittal ) were not clearing his bills and were demanding illegal gratification from him. An amount of Rs. 75,000/ was demanded by both of them. He was not interested in paying the bribe. He, therefore, went to PS ACB on 18.11.2008 and expressed his grievance. SI P.V. Mathew of PS ACB was deputed to go with the complainant for stealthily recording the conversation between complainant and R.K. Sharma (AE), regarding demand of bribe on a Digital Voice Recorder. After recording the conversation regarding demand of Rs. 75,000/ as bribe for S.K. Mittal ( EE) and for R.K. Sharma ( AE) himself, he then went to the house of S.K. Mittal (EE), who after speaking to R.K. Sharma (AE) on phone directed him 'to start the work by employing the machine'. Complainant then met R.K. Sharma (AE) who explained to him that 'starting the work and employing the machine' was a code language for paying the bribe. Complainant was called by R.K. Sharma (AE) for payment of bribe on 19.11.2008 at 9.00 AM. However, the complainant reached PS ACB, where he made a phone call to Sunil Mittal, which call was recorded. In the said call S.K. Mittal again used the code language for demand of bribe by saying 'start the work'.
1.2 On the complaint aforesaid, which is exhibited as Ex. PW18/A, a raiding team was constituted. Panch witness Sunil Kumar Gaur was associated. Complainant made available GC notes worth Rs. 50,000/. Serial number of those GC notes were noted down. Panch State Vs. Ravi Kant Sharma Page 2 of 30 3 witness and complainant were demonstrated the use of phenolphthalein powder and explained that the treated GC notes be handed over to the accused on demand. Thereafter, the raiding team left for the residence of accused R.K. Sharma (AE ), who was found to have left for office. Team then went to office of Executive Engineer, MIII Division of MCD, Loni Road, Delhi, where instructions to the panch witness and complainant were repeated. The entire team waited at the spot, as S.K. Mittal ( EE) was not available. Accused S.K. Mittal reached the office at about 4.00 PM when complainant and accused R.K. Sharma met him. At about 6.00 PM accused R.K. Sharma (AE) was apprehended while demanding and accepting Rs. 50,000/ as bribe. At the instance of panch witness treated GC notes were recovered from the left pocket of his shirt. Hand wash and pocket wash proceedings were carried out. Case property was sealed and seized. Rukka was prepared and sent for registration of FIR. Both the accused persons were arrested.
1.3 Further investigation was carried by IO/Inspector Yash Pal Singh, who collected the exhibits and got the same examined at FSL and collected the report. He also collected the concerned Work Orders from MCD. Transcripts of conversations contained in audio CD were prepared. Voice sample of accused and complainant were taken and got analysed from FSL. Call Details Records of the phone of the complainant and accused persons were collected. Sanction for prosecution of accused persons was sought. Challan for offence u/s 120B IPC and 7/13 (1) (d) of State Vs. Ravi Kant Sharma Page 3 of 30 4 Prevention of Corruption Act, 1988 (hereinafter referred to as 'the PC Act'), was filed in the court.
2. Cognizance of offences punishable u/sec. 120B IPC and 7/13 (1) (d) of PC Act, 1988 were taken against both the accused persons. They were summoned and provisions of section 207 Cr. P.C. were complied with. Vide order dated 08.01.2013, passed by my Ld. Predecessor, accused Sunil Kumar Mittal (EE) was discharged as sanction for his prosecution was found to be defective. However, charge for offences punishable u/sec. 120B IPC and section 7/13(1) (d) r/w section 13 (2) of the PC Act was framed against accused R.K. Sharma vide my order dated 1.4.2013 to which accused pleaded not guilty and claimed trial. 3.1 Prosecution in support of its case examined 38 witnesses. Complainant Sudhir Bhardwaj has been examined as PW18. He has deposed about demand of bribe by accused persons. Audio recording of the demand by accused R.K. Sharma on the DVR provided by SI Karnail Singh is proved. SI P.V. Mathew had been deputed to go with him for getting the recording done on 18.11.2008. He proved his complaint dated 19.11.2008 (Ex. PW18/A). He further deposed that he made available 84 GC notes of the denomination of Rs. 500/ and Rs. 1,000/ for an amount of Rs. 50,000/ to be used as trap money. He has proved the preraid demonstration. He then deposed having gone to the house of accused R.K. Sharma with the raiding team, where accused was not available. The team then went to his office, where they waited till evening as accused State Vs. Ravi Kant Sharma Page 4 of 30 5 S.K. Mittal was not available. He has further deposed about the demand and acceptance of bribe by accused R.K. Sharma at the time of trap. He has also deposed about treated GC notes having been recovered from the possession of accused R.K. Sharma.
3.2 Panch witness Sunil Kumar Gaur was not available for his evidence as he had expired. Inspector Manoj Kumar, Raid Officer (hereinafter called as RO ) was examined as PW33. He has deposed that complainant reached PS ACB at 8.30 AM on 19.11.2008, when his complaint was recorded. Panch witness was associated in the proceedings. He has then proved the preraid proceedings and departure of team for the residence of accused. On the accused being not available at his house, raiding team went to the office of Executive Engineer i.e. MCD M3 Division, near LIG Flats, Loni Road. He has then deposed that raiding team waited near the spot till about 6.00 PM, when panch witness gave the predetermined signal. Raiding team then reached the spot, where accused was apprehended and treated GC notes were recovered from his possession. RO further deposed about the hand wash and shirt wash proceedings at the spot, seizure of the case property, preparation of raid report and the rukka. Inspector Yash Pal (PW34) ( hereinafter called as IO) took over investigation at the spot. He prepared the site plan, recorded the statement of witnesses and on return deposited the exhibits in the malkhana. During investigation he collected the voice sample of accused persons and complainant and got the same analysed State Vs. Ravi Kant Sharma Page 5 of 30 6 at FSL. He also sought sanction for prosecution of the accused persons and finding sufficient material, he had submitted the charge sheet, against both the accused persons.
3.3 HC Krishna Dasan (PW2) has deposed having carried rukka from the spot to PS ACB on 19.11.2008, which he handed over to Ct. Anand Sarup (PW16), who was working as Duty Officer. FIR was registered by the Duty Officer who handed over copy of FIR and rukka to HC Krishna Dasan (PW2) and he returned to the spot.
3.4 HC Jatinder Singh (PW8) and HC Jai Prkash (PW3) were MHC(M) at PS Civil Lines in the year 2008 and 2009. They proved the entries in malkhana register on 20.11.2008 vide which IO/Inspector Yash Pal had deposited the case property in malkhana. Two parcels each were deposited by the IO on 2.7.2009, 21.7.2009 and 3.9.2009, which were voice samples of the complainant and the accused persons. Five pulandas were sent on 12.10.2009 to FSL through ASI Ramesh for analysis of voice samples. These were redeposited on 25.02.201 by Ct. Arun Mathur with the report of Dr. C.P. Singh. Hand wash and pocket wash samples were sent to FSL on 2.12.2008 through Ct. Suraj Pal, which were redeposited in the malkhana on 27.2.2009 with the report. ASI Ramesh Kumar (PW4) deposed having carried the five pulandas to FSL on 12.10.2009. HC Suraj Pal (PW1) deposed having carried hand wash and pocket wash samples to FSL on 2.12.2008. All the aforesaid four witnesses have deposed that case property remained untampered, so State Vs. Ravi Kant Sharma Page 6 of 30 7 long as it remained in their respective custody.
3.5 Dr. C.P. Singh (PW10) proved his report wherein he has opined CDs (subsequently exhibited as Ex. P9 and Ex. P11) to be containing the voices of accused R.K. Sharma and complainant. V.K. Tyagi (PW9), Assistant Manager, MCD identified the voice of accused Ravi Kant Sharma in CD, in the presence of panch witness Ravinder Dalal (PW5). Bijender Singh (PW10) is a panch witness to the consent of complainant for his voice sample. S.L. Meena (PW13) is a panch witness to the recording of complainant's voice sample at FSL, Rohini. B.L. Meena (PW15) is a panch witness to consent of both the accused persons for their voice samples. Mahavir Prasad Yadav (PW19) is panch witness to the taking of voice sample of accused Ravi Kant Sharma at FSL, Rohini. Jogender Sharma (PW17) has proved duty roaster for the duty of panch witness Vinod Kumar (PW14) and M.P. Yadav (PW19). Pramod Kumar (PW20) has proved duty roaster for panch witness Ved Prakash Vashisht (PW26). Vinod Kumar (PW21) has proved duty roaster for panch witness Kalu Ram Meena (PW23).
3.6 Sitakant Swain ( PW22 ) is a panch witness to the recording of statement of R.K. Sharma ( JE). K.R. Meena (PW23) is a panch witness to the recording of statement of Vijay Pal Singh (PW25). Ved Prakash Vashisht (PW26) is a panch witness to the recording of statement of Vijay Pal (PW25) and Narender Kumar (PW24). Alka Sharma (PW27) has proved the duty roaster for panch witness duty of Tarun Pal and State Vs. Ravi Kant Sharma Page 7 of 30 8 S.L. Meena. Ashok Kumar (PW30) has proved the panch witness duty roaster for Bijender Singh (JE). Shailesh Kumar (PW32) has proved the duty roaster of panch witness B.L. Meena (PW15 ). Vinod Kumar (PW14) is a panch witness to preparation of the transcript of conversation between complainant and the accused, as contained in CD. 3.7 Karnail Singh (PW6) was working as SubInspector at PS ACB on 18.11.2008. He deposed having handed over recording device to SI P.V. Mathew who was sent with the complainant for recording the conversation of demand between complainant and the accused. He has further deposed that on 19.11.2008 a telephonic conversation between complainant and accused S.K. Mittal was also recorded. He prepared four CDs, two each of the aforesaid recordings. SI P.V. Mathew (PW11) has deposed that he went with complainant to the office of accused Ravi Kant Sharma, on 18.11.2008, where complainant recorded a conversation with the accused.
3.8 R.K. Singh (PW35) Nodal Officer, Bharti Airtel has deposed that sim of mobile No. 9910388583 was allotted to MCD, which along with several other numbers was subscribed in the name of Jagdish Babu, Superintendent Engineer. Jagdish Babu (PW36), Superintendent Engineer, MCD proved that sim of Phone No. 9910388583 was issued by MCD to accused Sunil Kumar Mittal. CDR of the aforesaid mobile was proved as Ex. PW34/F. PW35 also proved undated certificate u/s 65B of Indian Evidence Act for this call detail record as Ex. PW35/E. Rajiv State Vs. Ravi Kant Sharma Page 8 of 30 9 Sharda (PW28) is Nodal Officer, Reliance Communication. He proved the Customer Application Form (CAF) of mobile No. 9311200002 in the name of complainant Sudhir Bhardwaj. He also proved the call detail record as Ex. PW28/D and certificate dated 23.1.2014 u/s 65B of Indian Evidence Act as Ex. PW28/E. 3.9 Narender Kumar (PW24) and Vijay Pal Singh (PW25) are tender clerks in the office of Executive Engineer (MIII, MCD). They both proved seizure of extracts from the Measurement Book (MB) Register by the IO. PW25 has further proved that the Work Order No. 299 was allotted to M/s Aziz Builders and R.K. Singh was the concerned JE. Corresponding MB No. 17107 was also issued to J.E. R.K. Singh. Measurement Book 17107 was returned by him and was blank. J.P. Verma (PW29) was the Executive Engineer holding charge over MIII division, Shahdra. He has deposed that IO sought the Measurement Book of Work Order No. 299 from him, which was not readily available. He requested JE R.K. Singh to supply the record. R.K. Singh(PW31) JE deposed that he was looking after the maintenance work and Measurement Book No. 17107 with respect to work order No. 299 was issued to him on 24.09.2008, whereas the work had already commenced on 2.9.2008. Since Measurement Book was not available in time, he had made entries about this work in M.B. No. 12449. After conclusion of work he handed over MB No. 12449 to accused R.K. Sharma, who was Assistant Engineer. Accused was not willing to accept M.B, therefore, he State Vs. Ravi Kant Sharma Page 9 of 30 10 had left it on his table in his presence. Blank Measurement Book No. 17107 was returned to the Department.
4. Incriminating evidence was put to the accused and his statement u/s 313 Cr. P.C. was recorded. He denied that complainant's firm under name and style of M/s Aziz Builders was awarded Work Order No. 299, which he had completed and that accused along with his co accused ( since discharged ) did not certify completion of work and his bill was, therefore, not cleared. He stated that no work had been done by the Builder and so there was no occasion for him to certify the work. He denied having called Sudhir Bhardwaj to his house or having demanded Rs. 75,000/ as bribe. He denied for want of knowledge any audio recording of demand of bribe, having been carried out by the complainant. He denied for want of knowledge any complaint having been lodged at PS ACB, association of panch witness Sunil Kumar Gaur, constitution of raiding party, carrying out of preraid proceedings and instructions to complainant and panch witness by the RO or demonstration of use of phenolphthalein powder. He denied the raiding team to have followed him from his house to his office. He denied any demand of bribe by coaccused Sunil Kumar Mittal using code language of " HAAN BHAI ISNE JCB LAGA DIYA YA NAHI", or that he had replied by saying " HAANJI BAAT HO GAYI HAI". He denied that in the office of coaccused S.K. Mittal , he demanded and accepted bribe from the complainant or having accepted treated GC notes. He also denied that he State Vs. Ravi Kant Sharma Page 10 of 30 11 showed signed Measurement Book to the complainant or that he walked towards his car with complainant following him or that he accepted the treated GC notes in his left hand through window of the car. He denied recovery of treated GC notes from the left pocket of his shirt. He denied hand wash or pocket wash proceedings or sealing and seizing of case property. He denied preparation of raid report, seizure memos or depositing of the case property in malkhana. He denied the audio recordings or the transcripts thereof. He disputed the statement of Vijay Pal, Narender and JE R.K. Singh. Accused claimed that he had been falsely implicated. When he took over charge, some unauthorised occupants were present in MCD flats. They were living in those flats with the connivance of R.K. Singh (JE). He made a complaint to this effect to S.K. Mittal, Executive Engineer, which resulted in police and departmental action against R.K. Singh. The complainant at the instance of R.K. Singh lodged the present false complaint. No work had been carried out by complainant against Work Order No. 299. Accused sought liberty to lead defence evidence and examined seven witnesses.
5. Ram Hans Meena (DW1) had furnished information under RTI Act with respect to deployment of panch witness at PS ACB from the Directorate of Education. Ashwani Mathur (DW6) has deposed having furnished reply to RTI application. Ashok Gupta - Executive Engineer (DW2) proved a memo issued to R.K.Singh - JE. Sharda Gupta - Head Clerk (DW4) proved initiation of departmental enquiry proceedings State Vs. Ravi Kant Sharma Page 11 of 30 12 against R.K.Singh (JE). Rajpal, Retired Executive Engineer (DW5) deposed that he was directed to file a police complaint against R.K.Singh (JE). Mohd. Iliyas (DW3) deposed that Measurement Book no.6123 to 6126 & 17107 issued to R.K.Singh were returned blank by him. Rajender Singh (DW7) runs a tea stall opposite the office of Executive Engineer, MCD, Loni Road. He has deposed that on 19.11.2008 at about 06:00 PM, accused was driving away from the office to his house, when one person stopped his car and he was forcibly taken away in the Maruti Van. He also deposed that subsequently he came to know that accused R.K. Sharma and his coaccused S.K. Mittal (since discharged) were taken away by the officials of PSACB. No other evidence in defence has been lead.
6.1 Sh.B.B.Bhasin, Ld. Addl.PP has argued that though the corroborating statement of panch witness is not available on record, as he had passed away; yet the testimony of complaint Sudhir Bhardwaj (PW18) can not be ignored, which in itself is sufficient to prove demand, acceptance and recovery of bribe. Sh.Bhasin has submitted that complainant in his testimony as PW18 has withstood the test of cross examination and proved beyond reasonable doubt that accused R.K.Sharma in conspiracy with coaccused Sunil Kumar Mittal (since discharged) demanded bribe of Rs.75,000/ from the complainant for clearing his pending bills. Before rushing to conduct the raid, officials of PSACB had verified the complaint by sending SI P.V. Mathhew with the State Vs. Ravi Kant Sharma Page 12 of 30 13 complainant to record the conversation regarding demand of bribe. The said conversation was recorded and on the satisfaction that demand of bribe had been made, a raiding team was constituted including the panch witness, which trapped the accused demanding & accepting bribe. It is argued that the accused persons used code language to express the demand of bribe. It is next argued by Sh.Bhasin that call details record of the phone of complainant and accused persons further corroborate his oral testimony, regarding demand of bribe during telephonic talks, as well.
6.2 For proving the trap proceedings, reliance has been placed upon the testimonies of Sudhir Bhardwaj (PW18) and RO/Inspector Manoj Kumar (PW33) and the raid proceedings drawn by him. Acceptance and recovery of treated GC notes is further corroborated from the presence of phenolphthalein powder in the hand wash and shirt pocket wash of the accused. It is, therefore, argued that the prosecution has proved its case beyond reasonable doubt.
6.3 In rebuttal arguments, Sh.Bhasin submitted that detailed reference to Work Orders and Measurement Books by the Ld. Defence Counsel is of no significance, as the demand, acceptance and recovery of bribe have been sufficiently proved. Referring to sec.7 (d) of the PC Act, it is argued that it is not necessary for the prosecution to prove that accused persons were in a position to clear the bills of the complainant. It is, thus, submitted that the over emphasis of ld. defence counsel on Work State Vs. Ravi Kant Sharma Page 13 of 30 14 Orders and Measurement Books does not support the defence and is not sufficient to disprove the facts of demand, acceptance and recovery, proved otherwise.
7.1 Sh.Yogesh Verma, ld. counsel for the accused R.K. Sharma has argued that there is no documentary evidence on record to prove the visit of complainant to PSACB on 18.11.2008. The evidence of handing over a recording device is not proved on the basis of any record. Alleged recorded conversation is not admissible, for want of the original and of certificate u/sec.65/B of the Indian Evidence Act. There is contradiction in the testimony of complainant as regards the sequence of conversations recorded between the complainant and the two accused persons. Prosecution case is also challenged by Sh.Verma by demonstrating that the time recorded in the raid proceedings is contradictory to the time stated by PW18 and corresponding time reflected in the call details record. Challenging the trap proceedings, it is argued that a total black out on the presence of Sunil Kumar Gaur - panch witness, in the testimony of complainant PW18 indicates that there was actually no panch witness to the proceedings. The complainant in his initial examination in chief did not corroborate his complaint or the raid proceedings. However, on being crossexamined by Ld. Addl. PP, he towed the prosecution line in a parrot like manner. On being cross examined by the defence counsel, he reverted to the version initially deposed by him, prior to the crossexamination by Ld. Addl. PP. Thus, his State Vs. Ravi Kant Sharma Page 14 of 30 15 statement can not be said to be unimpeachable in character. It is further argued that manner of acceptance of bribe has also been differently stated by the complainant in his own testimony. Recovery of 84 GC notes from the front shirt pocket is argued to be unlikely. It is submitted that a bundle of 84 GC notes can not be comfortably kept in the front pocket of a shirt. Referring to the call details record of the phone of complainant, it is argued that location of entire raiding team was in the vicinity of PSACB at about 06:45 PM, which is contrary to the prosecution case, which claims rukka to have been dispatched at about 06:05 PM from Loni Road, Shahadara.
7.2 Sh. Yogesh Verma, Ld. defence counsel has also challenged the credebility of complainant PW18. It is argued that he was facing as many as 11 FIRs , had been externed and had filed a false affidavit before MCD for getting himself registered as contractor. Referring to the cross examination of R.K. Singh, JE (PW31) and Mohd. Iliyas (DW3), it is argued that no work had been carried out by the complainant against any of the Work Orders awarded to him. Complainant in collusion with R.K. Singh, JE has lodged a false accusation against the accused. R.K. Singh, JE (PW31) was facing Departmental proceedings, which had been commenced on reports submitted by accused persons, who were his immediate superiors. R.K. Singh in conspiracy with the present complainant got the present case registered. Ld. defence counsel has laid great emphasis on blank Measurement Books and argued that no State Vs. Ravi Kant Sharma Page 15 of 30 16 work having been done by the complainant, he was not entitled to any payment. Referring to the civil suits filed by the complainant and the written statements filed by MCD, it is argued that he was not entitled to clearance of any of his bills and there was thus no occasion for the accused persons to have demanded bribe. Last but not the least Shri Verma has argued that the investigation and raid proceedings have been absolutely unfair. Link between complainant and RO, as well as IO, has been tried to be demonstrated. It is argued that one Salek Chand, another contractor in MCD and a friend of complainant is related to the RO. Shri Verma has further argued that case of the prosecution does not stand the test reasonableness and reliability. The accused, therefore, deserve acquittal.
8. 1 I have heard the Ld. counsels and perused the records with their assistance. Before discussing the evidence in detail, it shall be useful exercise to segregate & discard inadmissible electronic evidence. CDs Ex. P9 and P11 of the purported conversations between complainant and the accused, relied upon by the prosecution to supplement the evidence of demand of bribe, do not stand the test of admissibility. It is the case of prosecution as revealed in the testimony of SI Karnail Singh (PW6), SI P.V. Mathew (PW11) and Sudhir Bhardwaj (PW18) that a digital voice recorder was given to the complainant Sudhir Bhardwaj, who on 18.11.2008 for carried out the recording of conversation of demand of bribe. Another phone call made by the State Vs. Ravi Kant Sharma Page 16 of 30 17 complainant on 19.11.2008 to accused S.K. Mittal was recorded by SI Karnail Singh. These recorded conversation were subsequently transferred to CDs Ex. P9 and Ex. P11. It is the admitted case of prosecution that the original recording as contained in DVR were not retained and sent to FSL. It is also not the case of the prosecution that SI Karnail Singh who transferred the contents from DVR to CDs issued any certificate u/s 65B of Indian Evidence Act with regard to the said exercise. In these circumstances the evidenciery value of CDs Ex. P9 and Ex. P11 is hit by the law laid down in Anvar P.V. Vs. P.K.Basheer reported as Manu/SC/0834/2014', wherein it was held as under: "Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under subsection (2) are satisfied, without further proof or production of the original. The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the State Vs. Ravi Kant Sharma Page 17 of 30 18 specified conditions u/sec.65B(2) of the Indian Evidence Act:
(i) The electronic record containing the information should have been produced by the computer, during the period over, which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from, which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity. U/sec.65 (4) of the Indian Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate, which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned u/sec.65 B(2) of the Indian Evidence Act; and State Vs. Ravi Kant Sharma Page 18 of 30 19
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device."
8.2 Similarly, Call Details Record of the phone of accused Sunil Kumar Mittal Ex. PW34/F can also not be admitted in evidence as the certificate u/s 65B Indian Evidence Act Ex. PW35/E in respect of the aforesaid CDR is hit by the law laid down in Ankur Chawla Vs CBI Criminal Revision No. 385/2012 decided on 20.11.2014 by Hon'ble High Court of Delhi. A perusal of the call detail record Ex. PW34/F reveals it to have been printed out on 17.3.2010, which was collected by the IO during investigation, whereas the certificate u/s 65B of the Indian Evidence Act, Ex. PW35/E has been produced by the Nodal Officer during his testimony in the court on 20.9.2014. Apparently the certificate was not generated simultaneous to printout of CDR and also not filed along with the charge sheet. Thus in view of Ankur Chawla's case, the said record is inadmissible. Similarly the Call Details Record of phone of the complainant, Ex. PW28/D is also hit by the law laid down in Ankur Chawla's case. Certificate u/s 65B of Indian Evidence Act with regard to this Call Details Record has been placed on record during the testimony of PW28 as Ex. PW28/E. The said certificate bears the date of 23.1.2014. Charge sheet having been submitted on 30.8.2013 patently the certificate was not filed along with the charge sheet. For ready reference relevant portion of law laid down in Ankur Chawla's case is reproduced as below: State Vs. Ravi Kant Sharma Page 19 of 30 20
"In the instant case, the impugned order is silent about there being any certificate under Section 65B of the Indian Evidence Act, 1872 in respect of the audio and video CDs and even during the course of hearing, it was asserted on behalf of respondentCBI has failed to show that such a certificate has been filed alongwith the chargesheet...........................
.................................. It was also not shown during the course of the hearing that when the CDs were prepared but since this case was registered on 23rd November, 2009 therefore these CDs must have been prepared soon thereafter and the certificate under Section 65B of the Indian Evidence Act, 1872 has to be of the date when the CDs were prepared but the photocopy of the aforesaid certificate shows that it was prepared on 18th December, 2009 and is thus of no avail. "
9.1 Since the recorded conversations have been held inadmissible, its transcript and opinion of expert shall also be rendered otiose. The statement of witnesses identifying the voices of complainant and accused in the recorded conversations as contained in the CDs also become inadmissible. The statements of panch witnesses before whom the voices were identified or samples taken are also of no evidenciary value. Thus the statement of witnesses noticed in paras 3.5 to 3.8 are discarded.
9.2 That leaves the court with the testimony of complainant Sudhir Bhardwaj (PW18), RO/Inspector Manoj Kumar (PW33) and Inspector Yash Pal Singh (PW34) to be the material witnesses. Evidence of J.P. Verma (PW29), R.K. Singh (PW31), Narender Kumar (PW24) and Vijay Pal Singh (PW25) shall be relevant to supplement case of State Vs. Ravi Kant Sharma Page 20 of 30 21 prosecution as regards Work Orders having been allotted to the complainant, for which his payments were due. From the testimony of PW24, PW25, PW29 and PW31, however, prosecution is unable to prove that complainant Sudhir Bhardwaj had executed the work awarded to him or that any amount had become due. R.K. Singh (PW31) has deposed that work executed by complainant against work order No. 299 had not been entered in the corresponding MB No. 17107 but had been entered in MB No. 12449 and he had handed over MB No. 12449 to accused R.K. Sharma. It is further the case of this witness that MB No. 12449 wherein the work against Work Order No. 299 had been entered is misplaced, possibly at the end of accused R.K. Sharma. However, in the absence of any documentary evidence to indicate that MB - 12449 had been handed over to accused R.K. Sharma, the evidence which is oral testimony of R.K. Singh (PW31) cannot be accepted as gospel truth to hold that work done by complainant against Work Order No. 299 had been entered in MB No. 12449. The Ld. defence counsel in the cross examination of R.K. Singh (PW31) has demonstrated that the witness was facing several department proceedings including regular departmental inquiry. Similarly, Ashok Gupta (DW2) and Raj Pal, Retired Executive Engineer (DW5) have also demonstrated that R.K. Singh (JE) was facing police complaint and departmental proceedings in context of his official duty. Defence has thus successfully impeached the credibility of R.K. Singh (PW31). If the testimony of R.K. Singh is State Vs. Ravi Kant Sharma Page 21 of 30 22 thus rejected, there is no evidence to indicate that complainant had carried out the work awarded to him by MCD and was justified in claiming bill. I may, however, hasten to add that this does not indicate that accused had no occasion to demand bribe. As provided in section 7(d) of the PC Act, it is not necessary for the prosecution to prove that accused was in a position of doing something in favour of the complainant. Thus the testimony of PW24, PW25, PW29 and PW31 can also not said to be incriminating towards the accused. I hold that prosecution has failed to prove beyond reasonable doubt that complainant had executed the works awarded to him.
9.3 This finding also become relevant when the manner of demand of bribe attributed to S.K. Mittal is to be appreciated. Though, accused S.K. Mittal stands discharged; however, charge of conspiracy u/s 120B with R.K. Sharma still stands, which the prosecution is required to prove. Complainant Sudhir Bhardwaj (PW18), who is a solitary witness to the demand of bribe has deposed that S.K. Mittal asked him to 'start the work and employ the machine'. He has further deposed that this was the code language used by the accused persons to demand bribe. MB pertaining to the Work Orders awarded to the accused having remained blank and MB 12449 having not been traced, it was incumbent upon the prosecution to prove that complainant had actually carried out any work. In that context the words attributed to S.K. Mittal could have a plain meaning, that he directed the complainant to commence work at State Vs. Ravi Kant Sharma Page 22 of 30 23 the site before seeking clearance of his bills. Reading these words as code language to demand bribe is not supported by any other evidence. 10.1 I shall now discuss the testimony of complainant Sudhir Bhardwaj (PW18). In the absence of testimony of panch witness, complainant Sudhir Bhardwaj (PW18) is the sole and most material prosecution witness as regards demand, acceptance and recovery of bribe. He has deposed that he had executed work worth about Rs. Twenty eight lacs and he had completed the said works. However, there is no supporting evidence regarding awarding of work for the amount of Rs. Twenty eight lacs or completion thereof. He has further deposed that accused R.K. Sharma demanded Rs. 75,000/ from him as bribe for clearing the bills. He, therefore, went to PS ACB to lodge a complaint, where SI P.V. Mathew was sent with him for recording the conversation. Rest of the evidence regarding recording of conversation and its contents has already been held to be inadmissible in para 8.1 above. He has further deposed that on 19.11.2008 he reached at PS ACB, where complaint Ex. PW18/A was recorded. He has further deposed about raiding team having been constituted and reaching the house of accused at about 9.30 AM. He had traveled by his own vehicle whereas police party reached in their vehicle. When he reached the house of the accused he saw him coming out of his house and instructed him to reach the office of Executive Engineer. Accused left in his own vehicle and complainant followed him in his own vehicle. On being cross examined State Vs. Ravi Kant Sharma Page 23 of 30 24 by Ld. Additional PP he stated that he along with the raiding team and panch witness left for the house of accused R.K. Sharma in two Marutis van at 10.30 AM and reached there at 11.00 AM. Accused had already left for his office and they all then left for MCD office, Loni Road, Delhi. On being cross examined by Ld. defence counsel, he deposed that on 19.11.2008 he had reached PS ACB at 8.30 AM had received three phone calls from a land line number between 7.54 AM to 8.44 AM and his location at the time of 8.44 AM call was Sonia Vihar. He further deposed that he had made a telephone call to the accused from PS ACB and had been directed to reach his house before 10.AM but they had reached his house at 10.30 AM. He also admitted that he had received a call at about 10.29 AM, when he was in the vicnity of tower located at Bhajanpura, Main Wazirabad.
10.2 From the evidence as noticed above, it is apparent that star prosecution witness Sudhir Bhardwaj (PW18) is not consistent as regards the time of reaching PS ACB and the time of reaching the house of accused in the morning of 19.11.2008. He has also contradicted himself and the prosecution case as regards meeting the accused in his house on the morning of 19.11.2008 and the mode of traveling. In initial part of his examination in chief, he stated that he met the accused in his house and followed him to his office. In the later part of his testimony, he deposed that accused had already left his house and the team then reached his office. During cross examination by Ld. defence counsel, he State Vs. Ravi Kant Sharma Page 24 of 30 25 deposed that accused had directed him to reach his house before 10.00 AM but he had reached at about 11.00 AM. He also initially deposed that he had traveled in his own vehicle but on being cross examined by Ld. Additional PP he deposed that he traveled with the raiding team. It is, thus, demonstrated that the complainant is not consistent in his testimony.
10.3 He has then deposed that on reaching Loni Road office of accused persons, he waited for accused S.K. Mittal who arrived at his office between 3.30 to 3.45 PM. Complainant met accused S.K. Mittal where R.K. Sharma was called. S.K. Mittal then asked R.K. Sharma 'HAAN BHAI ISNE JCB LAGA DIYA YA NAHI'. R.K. Sharma stated that 'HAANJI BAAT HO GAYI HAI'. Complainant has further deposed that he left the said room and about 45 minutes later R.K. Sharma came out and asked him to pay the bribe amount. On the refusal of complainant to hand over bribe, unless the measurement book is shown, R.K. Sharma went to the office of S.K. Mittal and on return showed the MB to the complainant, purportedly bearing the signatures of S.K. Mittal for clearance of bill. Complainant then handed over the treated GC notes to accused R.K. Sharma which he accepted in his left hand. Raiding team immediately came and nabbed the accused. Accused threw away the treated GC notes, some fell inside the car and some outside the car. On being cross examined by Ld. Additional PP, he deposed that at about 6.05 AM panch witness had given the predetermined signal on which the State Vs. Ravi Kant Sharma Page 25 of 30 26 raiding party arrived and apprehended the accused, who had demanded and accepted the treated GC notes in his right hand and had kept the same in left pocket of his shirt. On being cross examined by Ld. defence counsel he was confronted with his statement recorded during investigation where he had not stated to the IO whatever was stated by him in his examination in chief and the same was an improvement over his previous statement.
10.4 On the basis of evidence as noticed above, it is apparent that the complainant has given two different versions of the incident at the time of trap on 19.11.2008. In the absence of corroborative evidence of panch witness, court is at a loss as to which version of the complainant is to be relied upon. Moreover, if the accused was carrying Measurement Book, which he had shown to the complainant having been signed by him and coaccused S.K. Mittal, RO's failure to seize the same is a fatal mistake. The inconsistency in the 'hand' in which treated GC notes were accepted is also a material lacuna. Complainant's version that the GC notes 'fell partly in the car and partly outside the car' is again a departure from prosecution case on a material aspect, which the prosecution is unable to explain in the absence of statement of panch witness. Demand of bribe by using code language has already been disbelieved in para 9.3 above. There being no other evidence of manner of demand of bribe, prosecution case suffers from another irreparable damage. I am, thus, of the opinion that evidence of solitary material State Vs. Ravi Kant Sharma Page 26 of 30 27 witness as regards demand and acceptance of bribe is not of sterling quality.
11.1 To prove the recovery of the treated GC notes from the possession of the accused R.K.Sharma, prosecution case relies upon the testimony of complainant (PW18) and Raid Officer (PW33). In his testimony dated 08.11.2013 complainant deposed that on seeing the raiding team, accused threw the treated GC notes, some of them fell inside the car and some outside the car. Then water was taken from a tap and both hands of the accused were washed, which turned pink. The wash was collected in one large bottle. GC notes were collected by officials of PSACB. Hand wash was transferred in two small bottles and seizure memos were prepared. In his crossexamination dated 04.04.2014 by Ld. Addl. PP, he deposed that on the instructions of raid officer, panch witness recovered treated GC notes from the left pocket of the shirt of accused. The right hand of accused was dipped in some water type solution, which turned pink. The wash was transferred in two bottles Mark RHWI & RHWII. He also admitted the suggestions of Ld. Addl. PP that wash of left pocket of shirt of accused was taken, which turned pink and transferred in two empty clean bottles marked as LSSPWI & LSSPW II. He was not suggested that his initial version dated 08.11.2013 was an inadvertent error.
11.2 There are thus two versions of the complainant on record as regards the hand wash proceeding. Prosecution has not suggested to State Vs. Ravi Kant Sharma Page 27 of 30 28 him as to which version is correct. As per first version hand wash was done with tap water and shirt pocket was not taken. The second version dated 4.4.2014 on the suggestion of Ld. Additional P.P. is of course in tune with the prosecution case. Similarly, in his testimony dated 8.11.2013 complainant deposed that on seeing the raiding team accused had tried to run away and in the process some GC notes fell inside the case and remaining outside the car. On being cross examined by Ld. Additional PP it was not suggested to him that this version of his testimony was wrong.. If this part of his testimony is taken to be true then the recovery was not from the pocket of the shirt of the accused, as was subsequently deposed by complainant during the cross examination of Additional P.P. RO/Inspector Manoj Kumar (PW33) has ofcourse clarified on both aspects and has deposed that recovery was effected from left pocket of the shirt of the accused by panch witness. He has also deposed about the washes having been taken in Sodium Carbonate Solution. 11.3 On the basis of evidence as noticed above, I am of the opinion that there being inconsistent and contradictory statements of both the material witnesses on the aspect of solution used for washes and the place of recovery, it shall be unsafe to hold that recovery of treated GC notes from the accused is proved beyond reasonable doubt by the prosecution. Moreover the complainant has altogether omitted the presence and role of panch witness.
12.1 Sh. Yogesh Verma, Ld. defence counsel has pointed out State Vs. Ravi Kant Sharma Page 28 of 30 29 another major lapse in the prosecution case, as regards the presence/absence of panch witness Sunil Kumar Gaur. It has been rightly pointed out by Ld. defence counsel that complainant Sudhir Bhardwaj (PW18) has not deposed about the presence of panch witness with him on the day of raid. The witness has also not ascribed any role having been performed by panch witness during the raid. Missing panch witness is further high lighted by Ld. defence counsel, from the duty roasters proved by the prosecution. Prosecution has examined Joginder Sharma (PW17), Pramod Kumar (PW20), Vinod Kumar (PW21), Alka Sharma (PW27), Ashok Kumar (PW30) and Shailesh Kumar (PW32) to prove the duty roasters of various panch witnesses. However, none of the witnesses noticed above has proved the duty roaster of Sunil Kumar Gaur, who was the most material panch witness, being the witness to raid. Duty roasters of other insignificant panch witnesses have been proved. This missing duty roaster becomes all the more conspicuous, when testimony of Joginder Sharma (PW17) is studied. Sunil Kumar Gaur has mentioned under his signatures on complaint Ex. PW18/A that he was posted as UDC in Transport Department. Joginder Sharma (PW17) has proved the duty roaster of Transport Department for June09, but has not proved duty roaster for November 2008 when the raid was conducted. Thus, in my opinion this is another lapse which raises suspicion about the prosecution case.
12.2 Ld. defence counsel has also argued out that one Salek State Vs. Ravi Kant Sharma Page 29 of 30 30 Chand another contractor of MCD, who is brother in law of RO/Inspector Manoj Kumar was constantly in touch with complainant at the time of raid. It is argued that raid was conducted at the behest of said Salek chand. This court is, however, of the opinion that this argument of Ld. defence counsel is not supported by any credible evidence.
13. For the reasons submitted in paras 8 to 12 above, I am of the opinion that prosecution case suffers from inconsistencies and contradictions. The testimony of complainant, who is sole witness to demand and acceptance of bribe cannot be held to be beyond reasonable doubt. Recovery of treated GC notes from the possession of the accused also suffers from inconsistency. Thus prosecution has failed to prove the charges framed against the accused beyond reasonable doubt. He is accordingly afforded benefit of doubt and acquitted of the charges u/sec.120B of IPC, u/sec.7 of the PC Act r/w/sec.120B of IPC and u/sec.13 (i) (d) and punishable u/s 13(2) of the PC Act r/w/sec.120 B of IPC.
14. However, in terms of sec.437 (A) Cr.P.C., the bail bond is extended for a period of six months. Case property is directed to be disposed of. Amount of Rs. 50,000/ made available by the complainant for the trap be returned to him.
File be consigned to Record Room.
Announced in the open Court (NAROTTAM KAUSHAL)
on 13.04.2015 SPECIAL JUDGE (PC ACT)05
(ACB), TIS HAZARI COURTS
State Vs. Ravi Kant Sharma Page 30 of 30