Delhi District Court
Cbi vs (1) Hari Chand on 23 May, 2014
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS
JUDGE (EAST) : SPECIAL JUDGE (CBI), KARKARDOOMA
COURTS, DELHI
AC No.19/2008
Unique Case ID No.02402R0651282008
FIR No.RC DAI2008A0001/
CBI/ACB/New Delhi
Under Sec. 120B IPC r/w Section 7
and 13(2) r/w Sec. 13(1)(d) of PC Act.
CBI Versus (1) Hari Chand
S/o Sh. Tota Ram
R/o K6, Gali No.20A, Gangotari
Vihar, West Gonda, Delhi53.
(2) Sanjay Kumar Singh
S/o Sh. Dharam Singh
R/o 46, Samachar Appt.,
Mayur Vihar PhI, Delhi91.
(3) Subhash Narain
S/o Late Sh. Parmanand
R/o 44, Priya Enclave, Delhi92.
Date of Institution : 29.08.2008
Date of reserving the order : 06.05.2014
Date of pronouncement : 22.05.2014
AC No.19/2008 CBI Vs. Hari Chand etc. Page 1 of 109
JUDGMENT
Three accused persons, namely, Hari Chand, Sanjay Kumar Singh and Subhash Narain have been sent to face trial by the Anti Corruption Branch of the CBI, for the offences punishable under Section 120B IPC read with Section 7 and 13(2) read with Section 13(1)(d) of PC Act.
2 At the time of commission of the offence, accused Hari Chand was posted as Inspector; accused Sanjay Kumar Singh was posted as Superintendent and accused Subhash Narain was posted as Assistant Commissioner in Central Excise, MOD Division VIII, Scope Minar, Laxmi Nagar, Delhi.
3 Briefly stating, the facts of the case are that a written complaint dated 31.12.2007, Ex.PW1/D was made by Sushil Kumar Jain (PW1) (hereinafter shall be referred as complainant) to the CBI to the effect that he was looking after the entire business affairs and was also an authorized signatory of J.V. Industries (P) Ltd. where they used to run a copper manufacturing plant. On 19.12.2007, a team of anti Evasion Cell of Central Excise conducted a search at the premises of J.V. Industries and some records were seized. It is further mentioned that on 28.12.2007, Mr. Hari Chand, Inspector, Central AC No.19/2008 CBI Vs. Hari Chand etc. Page 2 of 109 Excise contacted the complainant on mobile phone and asked to meet him in his office at Laxmi Nagar. The complainant visited there and met Hari Chand who took him to Sanjay Kumar Singh, Superintendent who told that anti evasion cell asked for inspection report. S.K. Singh and Hari Chand told that they could get settled the case of the complainant in anti evasion cell by sending a favourable report. Complaint further mentioned that they demanded Rs.10 lakh as bribe from the complainant for sending favorable report. They threatened the complainant that in case bribe was not paid on 30.12.2007, they would submit report against the factory. In the morning of 31.12.2007, Hari Chand called on the mobile phone of the complainant and asked the reason for not paying the bribe on 30.12.2007. When complainant took some excuse, he told that he along with S.K. Singh would come to the factory in the afternoon to conduct inspection. Hari Chand asked the complainant to join them and to pay them the bribe of Rs.10 lacs in the factory. Since the complainant did not want to pay the bribe, he made complaint to CBI. 4 The complaint Ex.PW1/D was marked to Inspector Rajesh Chahal (PW16). Independent witnesses Neeraj Jain (PW12) was arranged. Complainant (PW1), his son Manoj Kumar Jain and AC No.19/2008 CBI Vs. Hari Chand etc. Page 3 of 109 independent witness were introduced to each other and contents of complaint were explained. One digital voice recorder was arranged. Since, officials of Central Excise were to visit the factory of the complainant in the afternoon of 31.12.2007, it was decided to verify the contents of complaint. Inspector Rajesh Chahal (PW16), complainant, his son and independent witness left for the factory. On the way, a call was received by complainant from accused Hari Chand which was recorded. After few minutes, another call was received from accused Hari Chand which was also recorded. Accused Hari Chand asked the complainant to come to the factory quickly. On reaching the factory, complainant was handed over digital voice recorder, whereas PW14 and independent witness remained outside. After about two hours, complainant came out and informed that accused Hari Chand and Sanjay Kumar Singh came to his factory for inspection and they had demanded bribe of Rs.10 lacs by gesture of fingers. They had asked the complainant to hand over the bribe amount in the evening of 31.12.2007. Thereafter, they reached CBI office. The recording of the voice recorder was heard which confirmed the demand of bribe by them. On the direction of PW14, complainant called accused Hari Chand on his mobile phone and AC No.19/2008 CBI Vs. Hari Chand etc. Page 4 of 109 expressed his inability to arrange the money. Thereafter, accused Hari Chand made a call to complainant and insisted him to hand over the bribe money to him and accused S.K. Singh as they were waiting near Cross River Mall, Karkardooma. Recorded conversation was transferred to audio cassette Ex.P5. Its inlay card is Ex.P9 and cloth wrapper is Ex.P10. A rough transcription Ex.PW1/M of the said conversation was prepared. Verification proceedings were recorded in verification memo Ex.PW1/E. The complainant informed PW14 that he could arrange only Rs.2.5 lacs. He was asked to come on next day i.e. 01.01.2008.
5 After verification of the demand of bribe, FIR Ex.PW1/N was registered and its investigation was entrusted to Inspector Sandeep Chaudhary (PW15) for laying of trap on 01.01.2008. On 01.01.2008, in CBI office, two independent witnesses, namely, Neeraj Jain (PW12) and Praveen Gupta (PW13) were arranged. A trap team consisting of TLO, Inspector Rajesh Chahal (PW16), Inspector S.C. Bhalla, Inspector Prem Chand, SI Nikhil Malhotra, two independent witnesses, complainant and his son Manoj Kumar Jain was constituted. All were introduced to each other and contents of complaint were explained to all. The complainant AC No.19/2008 CBI Vs. Hari Chand etc. Page 5 of 109 (PW1) produced GC notes in the denomination of Rs.1,000/, Rs. 500/ & Rs.100/ totaling to Rs.2.5 lacs. The said GC notes were treated with phenolphthalein powder and a practical demonstration regarding reaction between phenolphthalein powder and sodium carbonate was explained to all the trap party members. Personal search of complainant (PW1) was conducted and he was not allowed to keep anything incriminating except his mobile phone. Said tainted GC notes were wrapped in a newspaper and kept in a handbag. The said handbag was given to the complainant with the direction to hand over the tainted bundle of GC notes to the accused persons on their specific demand. Independent witness Neeraj Jain (PW12) was asked to act as a shadow witness to remain close to the complainant to over hear the conversation and to see the transaction of bribe money. He was also directed to pose himself as driver of the complainant. He was directed to give signal of completion of transaction of bribe by scratching his head with both of his hands or by giving a call/missed call from his mobile phone to the mobile phone of Inspector Rajesh Chahal (PW16). The other independent witness Praveen Gupta (PW13) and Manoj Kumar Jain, son of the complainant was asked to remain with the members of the trap team.
AC No.19/2008 CBI Vs. Hari Chand etc. Page 6 of 109 6 In the digital voice recorder, formal voice of both the independent witnesses were recorded and it was given to the complainant (PW1). It was decided to take position near Cross River Mall, Karkardooma. A handing over memo Ex.PW1/F regarding proceedings conducted in CBI office was prepared. All the members of trap team left for said Mall. At about 10.00 a.m., complainant (PW1) made a call from his mobile phone No.9810050612 to the mobile phone No.9999898301 of accused Hari Chand. The conversation which had taken place between them was recorded during which accused Hari Chand told that he along with accused Sanjay Kumar Singh was coming in front of Cross River Mall in about 15 minutes. Car of the complainant was parked in the service lane, in front of gate of Mall, whereas other vehicles were kept a bit far away. Other trap party members took positions on both sides of the Mall.
7 At about 10.10 a.m., one white coloured Maruti Zen car came and stopped at the back side of complainant's car. Accused Hari Chand and S.K. Singh came out of the said car and moved towards the car of the complainant. The complainant came out of the car, had a conversation with both the accused and witness Neeraj Jain AC No.19/2008 CBI Vs. Hari Chand etc. Page 7 of 109 remained inside the car. Both the accused demanded bribe from the complainant while they were standing in the service lane. Complainant told that the amount was lying in the car. They decided that accused Hari Chand will go in the car of the complainant to take the bribe money. Accused persons also said that part of the bribe would also be given to accused Subhash Narain, Assistant Commissioner. Thereafter, complainant and accused Hari Chand sat in the car of the complainant; complainant sat on the front seat; accused Hari Chand sat on the rear seat; Neeraj Jain (PW12) started driving the car slowly; accused S.K. Singh moved in Maruti Zen car. On specific demand of bribe by accused Hari Chand, complainant took out bundle of GC notes from the hand bag and gave it to accused Hari Chand who accepted the same with his both hands and kept the same in his left armpit under his blue coat. Witness Neeraj Jain (PW12) heard the conversation and had seen the transaction of bribe. After taking a round of the Mall, car was parked near Maruti Zen car, in front of Zonal Office of transport department. Complainant and both the accused came out of the cars and started conversation. Shadow witness (PW12) made a call from his mobile phone to the phone of Insp. Rajesh Chahal as predecided. Immediately, trap team AC No.19/2008 CBI Vs. Hari Chand etc. Page 8 of 109 members reached the spot and both the accused were challenged whether they had demanded bribe of Rs.10 lacs and accepted bribe of Rs.2.5 lacs from the complainant. On this, both the accused turned pale. Both the accused were caught from their wrists. Digital voice recorder was taken back from the complainant. Independent witness Praveen Gupta (PW13) recovered bribe amount Ex.P8 from the left side armpit of accused Hari Chand.
8 On questioning, accused Hari Chand informed that part of the bribe amount was to be given to Asstt. Commissioner Subhash Narain. He was instructed to make a call to Subhash Narain and the conversation between them confirmed that he was also in conspiracy. The conversation recorded at the spot was later on transferred to audio cassette Ex.P7. Before these calls, left hand wash of accused Hari Chand was taken in the solution of Sodium Carbonate and on doing so, the colour of the solution turned into pink. Said solution was transferred in a glass bottle marked LHW Ex.P2. Similarly right hand wash of accused Hari Chand was taken in the said solution which also turned pink and it was transferred to glass bottle marked RHW Ex.P1. Further proceedings were conducted in the office of transport department. Both the independent witnesses AC No.19/2008 CBI Vs. Hari Chand etc. Page 9 of 109 were asked to tally the numbers of recovered GC notes Ex.P8 with the numbers mentioned in handing over memo. The number of recovered GC notes were tallied with handing over memo Ex.PW1/F. The left side coat wash of accused Hari Chand was taken in the solution which turned into pink and it was transferred to glass bottle marked LICW Ex.P3. Similarly, wash of left outer side of shirt of accused Hari Chand was taken in the said solution which also turned into pink. The said solution was transferred in glass bottle marked LOSW Ex.P4. A rough site plan Ex.PW12/D was prepared. Coat Ex.P21, shirt Ex.P22 of accused Hari Chand and newspaper Ex.P20 were seized. Accused Hari Chand and Sanjay Kumar Singh were arrested vide memos Ex.PW12/B & Ex.PW12/C. Accused Hari Chand was found in possession of two mobile phones having no.9999041775 make Samsung Ex.P24 and having no.9999898301 make Nokia Ex.P23 and the same were seized. Post trap proceedings conducted at the spot were incorporated in recovery memo Ex.PW1/G. 9 Thereafter, accused Subhash Narain was arrested vide memo Ex.PW15/A. One Nokia mobile phone having no. 9911387302 Ex.P25 was seized from him. Transcriptions Ex.PW1/H & Ex.PW1/J of the recorded conversation at the spot was prepared AC No.19/2008 CBI Vs. Hari Chand etc. Page 10 of 109 vide voice transcription memo Ex.PW1/L. A Voice identification memo Ex.PW1/K was also prepared. Specimen voices of accused persons were obtained vide memos Ex.PW12/E and Ex.PW12/F vide specimen voice recording memo Ex.PW12/G. Specimen voice of accused Hari Chand was recorded in cassette Ex.P13, its inlay card is Ex.P14; specimen voice of accused Sanjay Kumar Singh was recorded in cassette Ex.P15, its cloth wrapper is Ex.P17; specimen voice of accused Subhash Narain was recorded in cassette Ex.P17, its inlay card is Ex.P18 and cloth wrapper is Ex.P19. Office premises of accused Hari Chand and Sanjay Kumar Singh were searched vide search list Ex.PW10/A during which file Ex.PW2/C, file Ex.PW2/E and bunch of documents Ex.PW10/B were seized. Office of accused Subhash Narain was searched vide search list Ex.PW11/A during which documents Ex.PW11/B, Ex.PW10/DA and Ex.PW10/DB were seized. One file movement register Ex.PW2/D was also seized. 10 During investigation, washes were sent to CFSL for chemical examination vide forwarding letter Ex.PW4/A where the same were examined by Sh. R.S. Chauhan (PW4) vide report Ex.PW4/B. The questioned cassettes and specimen cassettes were sent to CFSL vide forwarding letter Ex.PW3/A which were examined AC No.19/2008 CBI Vs. Hari Chand etc. Page 11 of 109 by Sh. D.K. Tanwar (PW3) vide report Ex.PW3/B. Further investigation of the case was assigned to PW17 Sh. Ravi Gambhir who issued letter Ex.PW14/F to Sh. S.S. Pawar (PW14), Asstt. Commissioner, Anti Evasion Cell, Central Excise and letter Ex.PW14/G to Addl. Commissioner, Central Excise. He received reply Ex.PW14/DA along with enclosures Ex.PW14/D i.e. monthly statement of J.V. Industries; Ex.PW14/E1; Ex.PW1/B2; reply Ex.PW14/H along with enclosures Ex.PW8/DA, Ex.PW14/E, Ex.PW1/B1, Ex.PW1/A, Ex.PW14/A, Ex.PW14/B, Ex.PW14/C and letter dated 09.05.2008 Ex.PW17/A along with enclosures Ex.PW17/B (collectively). PW17 Sh. Ravi Gambir also issued letter dated 21.04.2008 Ex.PW17/C to Addl. Commissioner, Central Excise.
11 On completion of investigation, sanction Ex.PW8/A for prosecution of accused Hari Chand and sanction Ex.PW9/A for prosecution of accused Sanjay Kumar Singh were obtained. Since accused Subhash Narain had already retired, no sanction for his prosecution was obtained.
12 After completion of the investigation, the challan was put up in the court where accused persons were supplied with the AC No.19/2008 CBI Vs. Hari Chand etc. Page 12 of 109 copies of the chargesheet and the documents of the CBI. 13 The charges under Section 120B IPC and also under Section 7 and 13(2) read with section 13(1)(d) of the P.C.Act were framed against all the three accused persons. Accused persons pleaded not guilty to the charges framed against them and claimed trial.
14 The prosecution has examined 17 witnesses in support of its case. PW1 Sushil Kumar Jain is the complainant. PW2 Rajeshwar Kumar Tyagi and PW14 S.S. Pawar are the officials from Central Excise. PW3 Sh. D.K. Tanwar examined cassettes in CFSL, whereas PW4 Sh. R.S. Chauhan examined washes in CFSL. PW5 Sh. Pawan Singh is the official from Idea Cellular Company. PW6 Sh. R.K. Singh is the official from Bharti Airtel Cellular Limited. PW7 Sh. Israr Babu is the official from Vodaphone mobile phone company. PW8 Ms. Vandana Jain accorded sanction for the prosecution of accused Hari Chand, whereas PW9 Sh. Praveen Jain accorded sanction for prosecution of accused Sanjay Kumar Singh. PW10 Sh. Rajesh Kanava and PW11 Tej Pal Singh are the witnesses to the search taken place in the office premises of accused persons. PW12 Sh. Neeraj Jain and PW13 Sh. Praveen Gupta are the AC No.19/2008 CBI Vs. Hari Chand etc. Page 13 of 109 independent witnesses. PW15 DSP Sandeep Chaudhary is the Trap Laying Officer. PW16 DSP Rajesh Chahal remained associated in the investigation. PW17 Addl. SP Ravi Gambhir is the subsequent IO of the case.
15 The statements of all the accused persons were recorded under Section 313 Cr.P.C. All the accused persons have either showed their ignorance or have denied the present case against them. They have stated that they are innocent and have been falsely implicated in this case. Accused Hari Chand and Sanjay Kumar Singh opted to adduce defence evidence, whereas accused Subhash Narain opted not to lead any defence evidence.
16 In support of their defence, accused persons examined DW1 Sh. Rajbir Singh, UDCcumCashier, ACB, CBI; DW2 Dushyant Singh, Head Constable/Care Taker, CBI, ACB; DW3 Rakesh Kumar, LDC, ACB, CBI; DW4 Ritu Kumari; DW5 Udaiveer Singh and DW6 Sh. R.K. Singh, Nodal Officer, Bharti Airtel Ltd. 17 I have heard learned PP for the CBI as well as ld counsel for accused persons. Written submissions have also been filed. I have also carefully gone through their submissions, evidence and material available on record.
AC No.19/2008 CBI Vs. Hari Chand etc. Page 14 of 109 Demand of bribe at initial stage 18 The case of the prosecution is that accused Hari Chand and Sanjay Kumar Singh demanded bribe of Rs.10 lacs from the complainant for showing favour to him to give favourable report. It is alleged that on 19.12.2007, Anti Evasion Cell of the Central Excise visited the factory premises of the complainant. On 28.12.2007, accused Hari Chand contacted the complainant and called him in his office where both these accused demanded bribe of Rs.10 lacs from him.
19 To prove the demand of bribe by accused Hari Chand and Sanjay Kumar Singh, prosecution has examined the complainant Sushil Kumar Jain (PW1). PW1 has deposed that M/s J.V. Industries Private Limited was established in the year 1994. Initially, PW1 was one of the Director till about 2001. However, he continued to be authorized signatory on behalf of the company. On 19.12.2007, Anti Evasion Cell from ITO Office conducted raid on the premises of M/s J.V. Industries Pvt. Ltd. He was also present during the raid. Panchnama Ex.PW1/A prepared at the spot was signed by him. He proved the annexures of the said panchnama as Ex.PW1/B1, B2, Ex.PW1/C1 to C25. He further deposed that after the raid on AC No.19/2008 CBI Vs. Hari Chand etc. Page 15 of 109 19.12.2007, on 28.12.2007 accused Hari Chand telephonically directed him to attend his office at Laxmi Nagar near Preet Vihar. PW1 attended the office of accused Hari Chand which was the office of Central Excise. Accused Hari Chand was Inspector. Accused Hari Chand informed the complainant that the enquiry pertaining to raid dated 19.12.2007 was marked to him. Accused Hari Chand demanded Rs.10 lacs for correcting the report which amount was to be paid within two days. He was told to send the money by 30 th of December. On 31.12.2007, complainant went to CBI office along with his son and filed the complaint Ex.PW1/D in writing. 20 Complainant was declared hostile and was cross examined by Ld. PP for CBI. During cross examination by Ld. PP for CBI, he admitted that on 28.12.2006, accused Hari Chand contacted him on his mobile phone no.9810050612 and asked him to come and meet in his office in Laxmi Nagar. He further admitted that at the said office, accused Hari Chand took him to accused Sanjay Kumar Singh, Superintendent, Central Excise. He further admitted that both the accused told him that Anti Evasion Cell had asked for their inspection report in respect of factory of the complainant and they could manage to settle his case by sending a favourable report about AC No.19/2008 CBI Vs. Hari Chand etc. Page 16 of 109 his factory for which they demanded Rs.10 lacs as bribe. 21 During cross examination by ld. Defence counsel, complainant (PW1) has stated that the complaint was written by his son and he wrote the same what he had told his son. He had told his son in Hindi and he translated it in English and prepared complaint. He denied that accused Hari Chand had not made any call to him on 28.12.2007. He stated that at that time he was having mobile number 9810050612. He denied that he did not visit the office of MODA on being called by accused Hari Chand to meet him and accused S.K. Singh on 28.12.2007.
22 It is argued by ld. counsel for accused Hari Chand that the demand allegedly made on 28.12.2007 has not been proved. It is argued that there are variances in the contents of the complaint and the testimony of the complainant in the Court. It is submitted that there is no entry in the register of the Central Excise office dated 28.12.2007 to show that complainant ever visited there. 23 Ld. Counsel for accused Sanjay Kumar Singh has argued that there is no evidence against accused Sanjay Kumar Singh as the complainant turned hostile and has not deposed anything against him. It is submitted that from the testimony of complainant, it AC No.19/2008 CBI Vs. Hari Chand etc. Page 17 of 109 has not been established that accused Sanjay Kumar Singh ever demanded any bribe from the complainant.
24 To appreciate the rival contentions raised by ld. defence counsel, I have gone through the complaint Ex.PW1/D. In the complaint Ex.PW1/D, it is mentioned that on 19.12.2007, a team of anti Evasion Cell of Central Excise conducted a search at the premises of J.V. Industries of which complainant was one of the Directors and some records were seized. It is further mentioned that on 28.12.2007, accused Hari Chand, Inspector of Central Excise contacted the complainant on mobile phone and asked to meet him in his office at Laxmi Nagar. The complainant visited there and met accused Hari Chand who took him to accused Sanjay Kumar Singh, Superintendent who told that anti evasion cell asked for inspection report. Both the accused told the complainant that they could get settled the case of the complainant in anti evasion cell by sending a favourable report. Complaint further mentioned that they demanded Rs.10 lakh as bribe from the complainant for sending favorable report. They threatened the complainant that in case bribe was not paid on 30.12.2007, they would submit report against the factory. In the morning of 31.12.2007, Hari Chand called on the mobile phone of AC No.19/2008 CBI Vs. Hari Chand etc. Page 18 of 109 the complainant and asked the reason for not paying the bribe on 30.12.2007. When complainant took some excuse, he told that he along with S.K. Singh would come to the factory in the afternoon to conduct inspection. Hari Chand asked the complainant to join them and to pay them the bribe of Rs.10 lacs in the factory. 25 The complainant (PW1) has admitted that he had made the complaint Ex.PW1/D in writing to the CBI. He has admitted his signatures on the complaint. When this complaint Ex.PW1/D is admitted by the complainant during his testimony in the Court, there is nothing to disbelieve his testimony. Even otherwise, the contents of the complaint Ex.PW1/D have been corroborated by the complainant during his testimony in the Court. He has categorically stated that on 19.12.2007, a raid was conducted by the Anti Evasion Cell and in this regard, a call was received from accused Hari Chand on 28.12.2007 who called the complainant to his office. He has also categorically stated that when he visited the office as called for, there he met accused Hari Chand who took him to accused Sanjay Kumar Singh. He also corroborated that both the accused told him that the Anti Evasion Cell had asked for their inspection report in respect of factory of the complainant. Both these accused also told AC No.19/2008 CBI Vs. Hari Chand etc. Page 19 of 109 that they could settle his case by sending a favourable report for which they demanded bribe of Rs.10 lacs. The complainant has duly corroborated the contents of his complaint Ex.PW1/D during his statement in the Court.
26 PW2 Sh. Rajeshwar Kumar Tyagi, the then Assistant Commissioner of Central Excise during his crossexamination has stated that on the relevant date, the Range Officer was accused Sanjay Kumar Singh. PW2 has also stated that a visitors register used to be maintained in the their office and whenever a visit would visit the office, he had to make an entry.
27 It has been contended by Ld counsel for accused Hari Chand that there is no entry in the visitors's register of Central Excise to show the visit of complainant in the office on 28.12.2007, which falsifies his version that he visited the office on the said date or that any demand for bribe was made.
28 The complainant (PW1) in his cross examination has categorically stated that whenever a visitor has to meet the Customs & Excise Officials in his office, he has to make an entry in the register. But he voluntarily stated that the register was put in Preet Vihar Office subsequently. He clarified that at that time, there was no AC No.19/2008 CBI Vs. Hari Chand etc. Page 20 of 109 register for signatures of the visitors.
29 Since it has been stated by the complainant that no such register was kept in the office of accused at the relevant time, there was no occasion for him to make any entry. Though, accused Hari Chand has taken the stand that no entry of the complainant in the visitors' register of Central Excise Office falsifies the testimony of the complainant that he visited the office on 28.12.2007, but the fact remains that accused has not called any such register in the evidence for the relevant period to show that any such register was being maintained in the office to enter the visitors. When it has been stated by the complainant that there was no such register in the office of Central Excise, Preet Vihar, it was for the accused to call or prove any such register which he failed to do so.
30 In view of the above testimony of the complainant that he visited the office of Central Office on 28.12.2007 where accused Hari Chand and Sanjay Kumar Singh demanded bribe of Rs. 10 lacs for showing favour to him for giving a favourable report with regard to raid by Anti Evasion Cell, the prosecution has duly established the demand of bribe of Rs.10 lacs by both these accused. The contents of the complaint Ex.PW1/D, proved by the complainant, AC No.19/2008 CBI Vs. Hari Chand etc. Page 21 of 109 have been duly corroborated by the complainant in his testimony. So, the demand of bribe of Rs.10 lacs by accused Hari Chand and Sanjay Kumar Singh at the initial stage i.e. before making complaint to the CBI, has duly been proved.
Demand of bribe during verification 31 It is the case of the CBI that after making complaint Ex.PW1/D to the CBI, the contents of complaint were got verified by the CBI officer in the presence of independent witness. It is alleged against accused Hari Chand and Sanjay Kumar Singh that they came to the factory premises of the complainant on 31.12.2007 where again they demanded bribe from the complainant. This conversation between the complainant and accused persons verified the demand of bribe by the accused persons.
32 To establish the demand of bribe by accused Hari Chand and Sanjay Kumar Singh during pretrap verification, prosecution has examined the complainant (PW1). The complainant has deposed that after making complaint Ex.PW1/D to the CBI, CBI people put one pen in his pocket for recording. Within short span, he received a telephone call from accused Hari Chand that since he had not made the payment, they were coming to the factory of the AC No.19/2008 CBI Vs. Hari Chand etc. Page 22 of 109 complainant. The complainant replied that he was out of Delhi and would come only in afternoon. Accused Hari Chand asked at what time complainant would be available. The time was fixed of 03.00 p.m. The pen remained in the pocket of the complainant and he proceeded from CBI office along with two inspectors. Meanwhile, he received 23 calls on his mobile phone no.9810050612 from accused Hari Chand. The CBI inspectors were taping the phone conversation. He further deposed that accused S.K. Singh and Hari Chand visited his factory. The complainant told both the accused that they had inspected his entire factory but there was no deficiency. But both the accused insisted that the complainant should make the payment by that day evening by 06.00 p.m. Thereafter, complainant went to CBI office along with CBI officials. He received telephone call from accused Hari Chand at about 06.00 p.m. about the money. Complainant told accused Hari Chand that he was not in a position to arrange money.
33 During crossexamination by Ld. PP for the CBI, complainant (PW1) has admitted that accused Hari Chand told him that accused S.K. Singh would be coming to his factory in the afternoon of 31.12.2007 to conduct inspection. He admitted that AC No.19/2008 CBI Vs. Hari Chand etc. Page 23 of 109 accused Hari Chand asked him to join the inspection and pay the bribe of Rs.10 lacs at that time. He further admitted that a digitnal voice recorder and tape recorded was arranged by Inspector Rajesh Chahal in which introductory voice of Sh. Neeraj Jain was recorded. Thereafter, Insp. Rajesh Chahal along with son of the complainant and Sh. Neeraj Jain left for factory. He admitted that on the way, he made a call from his mobile phone to the mobile phone no. 9999898301 of accused Hari Chand and the said conversation was recorded. He admitted that accused Hari Chand asked him to come to the factory quickly as he along with Superintendent was reaching soon. He admitted that after a few minutes, accused Hari Chand made a call to him and asked to come quickly in the factory. Though he denied that both the accused Hari Chand and Sanjay Kumar Singh demanded Rs.10 lacs with gesture of fingers, but he stated that the demand of money was discussed with accused Hari Chand only. He admitted that he requested for reducing the bribe amount. On the same day at about 06.00 p.m., he made a call to accused Hari Chand which was recorded. Though he denied that during the said conversation both the accused demanded bribe and asked him to deliver the bribe, but he stated that this fact was told by accused Hari AC No.19/2008 CBI Vs. Hari Chand etc. Page 24 of 109 Chand. Though he denied that after few minutes, he received a call from accused Hari Chand wherein he told him to come and deliver the bribe to both the accused persons, but he stated that it was accused Hari Chand who told him to come and deliver the bribe. Though he denied that on his request both the accused postponed the transaction of bribe for 01.01.2008, but he stated that it was accused Hari Chand who postponed the transaction of bribe for 01.01.2008. 34 The cassette marked Q1 having writing "telephonic/ spot verification" was played in the Court. On hearing the voices contained in the cassette, complainant identified introductory voice of witness Neeraj Jain. He identified his own voice and voice of accused Hari Chand. He identified his voice when he said as to which time they were reaching to which accused Hari Chand replied that he was coming. Complainant stated that this conversation had taken place on 31.12.2007 on the way to factory after making complaint to CBI. After the said conversation, the complainant reached the factory. He admitted that on the way to factory, another mobile conversation between him and accused Hari Chand had taken place. He admitted that he reached the factory. He also admitted that accused Hari Chand and accused S.K. Singh also reached the factory AC No.19/2008 CBI Vs. Hari Chand etc. Page 25 of 109 and both of them had conducted inspection of the factory. Complainant admitted that a verification memo dated 31.12.2007 Ex.PW1/E was prepared at CBI office which bears his signatures at point A. 35 From the testimony of the complainant, it has been established that both the accused Hari Chand and Sanjay Kumar Singh visited the factory of the complainant in the afternoon of 31.12.2007 where they again demanded bribe from the complainant. He has categorically stated that on way to his factory, he received several calls on his mobile phone from accused Hari Chand who asked for bribe money and their visit to the factory of the complainant. He has also stated that both these accused visited his factory premises. The cassettes played in the Court were heard by the complainant and he identified the introductory voice of independent witness Neeraj Jain (PW12), his own voice and voice of accused Hari Chand. Though he denied that both the accused had demanded bribe from him during telephonic conversation, but he stated that it was accused Hari Chand who demanded bribe from him. He has also stated that his factory was visited on that day by both the accused persons, namely, Hari Chand and Sanjay Kumar Singh. AC No.19/2008 CBI Vs. Hari Chand etc. Page 26 of 109 36 PW16 DSP Rajesh Chahal corroborated the testimony of complainant and the case of the prosecution that verification of demand of bribe was established. He has stated that on 31.12.2007, he was called by Sh. Sumit Sharan, the then SP, CBI and introduced to complainant Sushil Kumar Jain and his son Manoj Kumar Jain. He was marked the complaint Ex.PW1/D regarding demand of bribe by accused Hari Chand and Sanjay Kumar Singh. PW16 arranged the presence of independent witness Neeraj Jain. One digital voice recorder was arranged. The accused persons were to visit the factory of the complainant in the afternoon of 31.12.2007, hence it was decided to verify the contents of demand and agreeing to accept the bribe. Thereafter, PW16 along with complainant, his son and independent witness left for the factory. On the way, complainant contacted accused Hari Chand and said conversation was recorded. After few minutes, a call was received by the complainant during which accused Hari Chand asked him to come quickly to his factory as he along with accused S.K. Singh was reaching there. On reaching near the factory, digital recorder was given to the complainant in switched on mode. PW16, independent witness and son of the complainant remained outside the factory. After about two AC No.19/2008 CBI Vs. Hari Chand etc. Page 27 of 109 hours, complainant came out of the factory and joined them. Digital recorder was taken back from him. The complainant informed that both the accused conducted inspection of the factory and they had demanded bribe of RS.10 lacs by gesture of fingers in order to give favorable report. They had asked the complainant to hand over the said bribe in the evening. The conversation recorded in recorder was heard which established the demand and agreeing to accept illegal gratification of Rs.10 lacs. In CBI office, recorded conversation was transferred to audio cassettes and transcription Ex.PW1/M of the same was prepared. The verification proceedings were mentioned in verification memo Ex.PW1/E. Cassette Ex.P5 was played in the Court and this witness (PW16) identified the voice of witness Neeraj Jain, voice of complainant and voices of accused Hari Chand and Sanjay Kumar Singh therein.
37 The independent witness Sh. Neeraj Jain (PW12) has deposed that on 31.12.2007, he was posted as Inhouse Surveyor in United India Insurance Company. On receipt of direction of from senior officers, he attended CBI office where he met Insp. Rajesh Chahal who introduced him to complainant S.K. Jain and showed his complaint. The complaint was regarding demand of bribe by some AC No.19/2008 CBI Vs. Hari Chand etc. Page 28 of 109 officers of Central Excise. He went along with complainant. On the way, complaint called the Excise officers who had demanded bribe in his presence. On reaching near the factory, complainant went inside the factory and rest of them remained outside. After sometime, complainant came out and narrated what had happened inside thef factory with excise officers. The cassette marked Q1, Ex.P5 was played in the Court and witness identified his signatures on the same and also identified his introductory voice in the cassette. 38 This witness was declared hostile by the prosecution and during cross examination by Ld. PP for CBI, witness (PW12) admitted that on 31.12.2007, a digital voice recorder was given to the complainant in which his (PW12) introductory voice was recorded. On the way, complainant had conversation with Central Excise Officer. He admitted that when complainant came out of his factory, he told that accused S.K. Singh and Hari Chand had conducted inspection of his factory. He admitted that verification memo Ex.PW1/E was prepared which was read over to him and he understood its contents and then he put his signatures on the same. 39 The transcription Ex.PW1/M of the pretrap verification shows that accused Hari Chand told the complainant that AC No.19/2008 CBI Vs. Hari Chand etc. Page 29 of 109 he along with accused Sanjay Kumar Singh were coming together to the factory of the complainant. The complainant told the accused that he had to save him from the matter.
40 This transcription of the conversation which had taken place on the way to factory and in the factory premises clearly establishes that both accused Hari Chand and Sanjay Kumar Singh came to the factory of the complainant on 31.12.2007. It has also been stated by the complainant in his testimony. The conversation which had taken place between complainant and them also establishes that they were talking of settling the matter of the complainant. It is the case of the prosecution and has been stated by the complainant that the demand of bribe during inspection of factory was made by the gesture of fingers and not by words. But the totality of evidence discussed above leaves no room for any doubt that both the accused Hari Chand and Sanjay Kumar Singh visited the factory of the complainant in the afternoon of 31.12.2007 and demanded bribe of Rs.10 lacs from him and agreed to accept the same. The testimony of the complainant has duly been corroborated by PW16 DSP Rajesh Chahal and independent witness PW12 Neeraj Jain. Though, it is apparent that complainant and PW12 have not supported the case of AC No.19/2008 CBI Vs. Hari Chand etc. Page 30 of 109 the prosecution on some point, but their testimony cannot be discarded in toto. They have categorically stated that the cassette containing pretrap verification conversation contained introductory voice of PW12 Neeraj Jain; both the accused persons visited the factory premises of the complainant; verification memo Ex.PW1/E was prepared bearing their signatures; recorded conversation in audio cassettes contained voices of the complainant, PW12 and accused persons. The verification memo Ex.PW1/E also corroborates the testimony of the complainant that both accused Hari Chand and Sanjay Kumar Singh demanded bribe of Rs.10 lacs during pre verification proceedings and agreed to accept the same. The oral testimony of above witnesses has duly been corroborated by documentary evidence in the form of verification memo Ex.PW1/E and transcription Ex.PW1/M. 41 So, the prosecution has successfully established the demand of bribe of Rs.10 lacs by accused Hari Chand and Sanjay Kumar Singh during pretrap verification.
Demand, acceptance and recovery of bribe at the spot 42 It is alleged against accused persons that accused Hari Chand and Sanjay Kumar Singh met the complainant (PW1) in AC No.19/2008 CBI Vs. Hari Chand etc. Page 31 of 109 front of Cross River Mall where conversation between them had taken place. It is further alleged against accused persons that during the said conversation and meeting, accused persons demanded bribe from the complainant and accused Hari Chand accepted Rs.2.5 lacs as illegal gratification. It is also alleged against accused Subhash Narain that a telephonic conversation between him and his coaccused persons had taken place at the spot wherein he also agreed to accept the share in the bribe amount.
43 To prove this point, prosecution has examined the complainant (PW1) who deposed that when accused Hari Chand and Sanjay Kumar Singh visited his factory on 31.12.2007, both of them insisted that the complainant should make the payment of bribe in the evening of that day at about 06.00 p.m. Thereafter, he went to CBI office along with CBI officials. He received a call from accused Hari Chand at about 06.00 p.m. about the money. The complainant told accused Hari Chand that he was not in a position to arrange money. Then, the complainant was told by CBI officials that he should postpone the matter for next day. He was told by CBI people to come along with money on the next day, but he showed his inability and told that he could arrange only Rs.22½ lacs. The complainant was AC No.19/2008 CBI Vs. Hari Chand etc. Page 32 of 109 told by CBI that he should come atleast 2½ lacs and bring the notes of less value of denomination. He further deposed that he went to CBI office with the money at about 07.00 a.m. in the morning of 01.01.2008. They put powder on the currency notes and called two witnesses. Notes were converted in a packet and handed over to him. He received a call from accused Hari Chand who was told to wait for 1/23/4 hour. When they reached near Shahdara, he received a call from accused Hari Chand about the place of meetign and he told the complainant the place of meeting as near Cross River Mall. 44 Complainant (PW1) further stated that the vehicle of accused Hari Chand was parked near Cross River Mall when they reached there. Accused Hari Chand and S.K. Sinh were found by him standing on the footpath near their car. One independent witness was sitting in the car of the complainant as driver. Complainant got down from his car. In the meantime, accused Hari Chand came and sat inside his car. Accused S.K. Singh remained standing on the road. Accused Hari Chand asked the complainant whether he had brought the full amount of Rs.10 lacs. In the meantime, independent witness started driving the car. Complainant replied to accused Hari Chand that he had brought the full amount. In the moving car, complainant AC No.19/2008 CBI Vs. Hari Chand etc. Page 33 of 109 took out the bundle of notes wrapped in newspaper and handed over the same to accused Hari Chand. When complainant told that the amount was a big amount, accused Hari Chand replied that share had to be paid to seniors also. He further deposed that accused Hari Chand accepted the GC notes and put them inside his coat. After taking a round in car, they came back near the spot where the car of accused Hari Chand was lying parked. Accused Hari Chand and S.K. Singh sat in their car. He gave preappointed signal and then both the accused persons were apprehended.
45 Complainant further deposed that accused Hari Chand was asked to contact senior officer on telephone who had to be given the share. Accordingly, accused Hari Chand had some conversation. Hand washes and inside of coat wash of accused Hari Chand were taken in colourless solution which turned into pink. 46 During crossexamination by Ld. PP for CBI, complainant (PW1) has admitted that the notes produced by him at CBI office on 01.01.2008 totaling Rs.2.5 lacs comprised of denomination of Rs.1,000/, Rs.500/ and Rs.100/. The details of the same were recorded in handing over memo Ex.PW1/F which bears his signatures at point A. He admitted that phenolphthalein powder AC No.19/2008 CBI Vs. Hari Chand etc. Page 34 of 109 was applied on these notes. He admitted that practical demonstration of reaching of powder with colourless solution of sodium carbonate was given. He admitted that the notes were wrapped in newspaper. He admitted that he was told by CBI that the bundle of note was to be handed over on demand by the accused persons. He admitted that Neeraj Jain was directed by CBI to act as shadow witness by remaining close to him and hear the conversation and to see the transaction with the accused persons. He admitted that the shadow witness was directed to pose himself as driver of car of the complainant on reaching the spot. The shadow witness was directed to give signal on completion of transaction of bribe by scratching his head with bond hands or by giving signal from his mobile phne to the mobile phone of Ins. Rajesh Chahal. He admitted that another independent witness and Manoj Kumar, son of the complainant, were told to remain with rest of the trap team members. He admitted that a digital recorder was arranged for recording the spot conversation. He admitted that after completion of handing over proceedings, all of them left for Cross River Mall. At about 10.00 a.m., he made a call to accused Hari Chand which was recorded. During the said conversation, accused Hari Chand told that he was coming and it was AC No.19/2008 CBI Vs. Hari Chand etc. Page 35 of 109 agreed to meet in front of Cross River Mall.
47 During cross examination by Ld. PP for CBI, complainant further admitted that his car was parked in the service lane in front of main gate of Cross River Mall. The independent witness Neeraj Jain took position as driver in the car of the complainant. He could not tell whether one Maruti Zen car came from the opposite direction, however he admitted that accused Hari Chand came out of a car and moved towards the car of the complainant. He admitted that he came out of his car whereas Neeraj Jain remained sitting in the car. He admitted that as soon as he contacted accused Hari Chand, he demanded bribe. He denied that accused S.K. Singh had also demanded bribe. He denied that accused Hari Chand and S.K. Singh told him that the part of the bribe amount would also be given to accused Subhash Narayan. However, he voluntarily stated that accused Hari Chand stated that part of the bribe amount would to go Headquarter (ITO). He admitted that he along with accused Hari Chand came to his Corola Car. He sat on the front seat whereas accused Hari Chand sat on the back seat. He admitted that accused S.K. Singh came to the Zen Car and started moving it in opposite direction. He further admitted that when Neeraj Jain was AC No.19/2008 CBI Vs. Hari Chand etc. Page 36 of 109 driving the car, accused Hari Chand demanded bribe from him. On this, the complainant took out the tainted bundle of GC notes with his right hand from the handbag which he had kept between his legs and extended the said bundle of GC notes towards accused Hari Chand. He admitted that accused Hari Chand accepted the same with both hands and kept the same under his left arm pit under his coat. 48 Complainant (PW1) further stated that Neeraj Jain had heard the said conversation. Thereafter, his car was taken to main road and then parked near the Zen Car in front of Zonal Office of Transport Department. He admitted that he and accused Hari Chand came out of his Corola Car, whereas accused S.K. Singh came out of his Zen car. He admitted that meanwhile, Insp. Rajesh Chahal along with CBI team reached there. Inspector Sandeep Chaudhary disclosed the identity of CBI team, challenged accused S.K. Singh and accused Hari Chand for demanding bribe of Rs.10 lacs and accepting Rs.2.5 lacs for extending favour. He admitted that Insp. Sandeep Chaudhary caught hold of accused S.K. Singh, whereas Insp. Rajesh Chahal caught hold of accused Hari Chand from wrists. Insp. Prem Nath had taken back the digital recorder. Neeraj Jain was asked to narrate the conversation and transaction of bribe to which he AC No.19/2008 CBI Vs. Hari Chand etc. Page 37 of 109 corroborated. He admitted that accused Hari Chand and S.K. Singh were asked to sit on the pedestrian path. He admitted that Praveen Gupta was asked to recover the tainted bundle of GC notes from the arm pit of accused Hari Chand and accordingly Praveen Jain recovered the same from the arm pit of accused Hari Chand. He admitted that left hand of accused Hari Chand was washed in the colourless solution of Sodium Carbonate which turned into pink and the hand wash was transferred in bottle. On question by CBI officials, accused Hari Chand told that part of the bribe amount was to be given to Asstt. Commissioner Subhash Narain. On the direction, accused Hari Chand contacted accused Subhash Narain on his mobile phone and the said conversation was recorded in the digital recorder. It was decided to conduct further proceedings inside Zonal Transport Office. On request, Sh. V.A. Vasu, MLO provided his office chamber. He admitted that Sh. Neeraj Jain and Sh. Praveen Gupta tallied the number of recovered GC notes with the numbers mentioned in handing over memo Ex.PW1/E. The complainant identified the recovered GC notes as Ex.P8 (collectively). 49 Complainant further admitted that left inner side of blue coat of accused Hari Chand was washed in the solution of AC No.19/2008 CBI Vs. Hari Chand etc. Page 38 of 109 Sodium Carbonate and on doing so, its colour changed to pink. The said wash was transferred to bottle marked LICW. Left outer side of shirt of accused Hari Chand was also washed in the similar manner which turned into pink. The said solution was transferred to bottle marked LOSW.
50 The audio cassette marked Q2 Ex.P7 was played in the Court. After hearing the voices of the said cassette, complainant (PW1) identified his voice and voice of independent witnesses. He also identified the voice of accused Hari Chand. He admitted that accused Hari Chand asked "chote hain ya bade" (whether small or big) to which complainant replied "Hazar Hazar ke packet hain" (packets were of thousand). Thereafter, accused Hari Chand asked the complainant to remain silent and not tell anybody about the same. Accused also said they would manage the AC. Thereafter, accused Hari Chand asked the complainant to tell the AC only 3. Accused Hari Chand further asked the complainant to show all the papers and then report would be prepared. After trap, accused Hari Chand made a call during which he referred to the case of complainant by saying they had seen the investigation of Sushil Jain of J.V. Industries. He further asked the person on the other side AC No.19/2008 CBI Vs. Hari Chand etc. Page 39 of 109 whether he could started talking to them and what to talk with them (complainant). On this, the person on the other side said "process dekho, vo dekho" (see the process and other things). Complainant further identified the voice of accused Hari Chand who said whether he could ask for some give and take, to which the person on the other side asked accused Hari Chand to see the matter. Accused Hari Chand further said if something had happened would he met him at home, to which the person on the other side said that he was at home. When accused Hari Chand asked as to how much amount he would do, to which the person on the other side asked him to do of his own. Accused Hari Chand further said he had demanded for 10; firstly he (complainant) was denying but he had managed something; what to do. The person on the other side said that he was coming to office and talk about it in the office.
51 The complainant (PW1) admitted that summary of trap proceedings was recorded in document Ex.PW1/G i.e. recovery memo. He admitted that transcription Ex.PW1/H was prepared. He further admitted that voice identification memo Ex.PW1/K and voice transcription memo Ex.PW1/L were prepared. He also admitted preparation of transcription Ex.PW1/M. AC No.19/2008 CBI Vs. Hari Chand etc. Page 40 of 109 52 From the testimony of the complainant, it has duly been established that accused Hari Chand demanded bribe from him at the spot when trap was laid. He has specifically stated that during his talks with the accused in front of the main gate of Cross River Mall, accused Hari Chand had asked for bribe. Thereafter, complainant as well as accused Hari Chand sat in the car of the complainant wherein again accused Hari Chand demanded bribe, on which accused gave the bundle of tainted GC notes to accused Hari Chand who accepted with his both hands and kept it under his left arm pit under his coat. Though the complainant has denied having any talks with accused Sanjay Kumar Singh, but he admitted the presence of accused Sanjay Kumar Singh. He has stated that when his car started moving when accused Hari Chand sat in it, accused Sanjay Kumar Singh started moving his Zen car in opposite direction. He further admitted that after transaction of bribe when his car was parked in front of Zonal Transport Office, Zen car was present there occupied by accused Sanjay Kumar Singh and he also came out of the car. The complainant has also admitted that both the accused Hari Chand and Sanjay Kumar Singh were apprehended from the spot by the CBI officials. The complainant has identified the voice of AC No.19/2008 CBI Vs. Hari Chand etc. Page 41 of 109 accused Hari Chand in the cassette Ex.P7 when played in the Court. He clearly identified the voice of accused Hari Chand that he had demanded bribe from him and after his apprehension he had a talk with someone on his mobile phone, on the asking of CBI officials. He identified that the person on the other side of phone admitted that he was also to receive the part of the bribe amount paid to accused Hari Chand.
53 Shadow witness Neeraj Jain (PW12) has stated that after the end of proceedings on 31.12.2007, the complainant has stated that he could arrange only Rs.2.5 lacs and then the complainant was asked to come on 01.01.2008 along with Rs.2.5 lacs. On the next day i.e. on 01.01.2008, he and Praveen Gupta attended CBI office. Complainant produced GC notes of denomination of Rs.1000/, Rs. 500/ and Rs.100/ totaling Rs.2.5 lacs and their details were recorded in handing over memo Ex.PW1/F bearing his signatures at point B. The said GC notes were treated with phenolphthalein powder and its reaction with sodium carbonate was given. Complainant was handover the handbag containing smeared GC notes. He was instructed to act as shadow witness and to demonstrate himself as driver of the complainant. He was instructed to give signal by AC No.19/2008 CBI Vs. Hari Chand etc. Page 42 of 109 scratching his head with both hands or by giving call/missed call on the mobile phone of Insp. Rajesh Chahal, on completion of transaction of bribe. One digital recorder was given to the complainant to record the conversation. After completion of handing over proceedings, they all left for Cross River Mall. A call was made by complainant at about 10 a.m. to accused Hari Chand who told that he along with accused S.K. Singh was coming in front of Cross River Mall. He took position as driver of the complainant. At about 10.10 a.m., one Maruti Zen car and stopped at the back side of car of the complainant. Two persons lateron identified as accused Hari Chand and S.K. Singh came out of the said Zen Car. Complainant came out of his car and started talking with them on the footpath. After some conversation, accused Hari Chand along with complainant came and accused Hari Chand sat on the back seat of car of the complainant. He started moving the car slowly. Then accused Hari Chand demanded bribe from the complainant on which complainant took out tainted bundle of GC notes from the handbag and extended the said bundle towards accused Hari Chand. He stated that accused Hari Chand accepted the said tainted bundle of GC notes. On the instruction of accused Hari Chand, car was taken to the main road and AC No.19/2008 CBI Vs. Hari Chand etc. Page 43 of 109 was parked near Zen car in front of Zonal office of Transport Department. He admitted that accused Hari Chand came out of the car, whereas accused S.K. Singh came out of Zen car and started conversation. Then this witness (PW12) made a call on the mobile phone of Insp. Rajesh Chahal and informed about the transaction of bribe and location of accused and complainant.
54 Witness Neeraj Jain (PW12) further stated that CBI team members reached there and accused Hari Chand and S.K. Singh were challenged for demanding Rs.10 lacs and accepting Rs.2.5 lacs. Both the accused were caught hold with their wrists. He narrated the conversation and transaction between complainant and accused Hari Chand. Witness stated that it might be written in his statement made to CBI that both these accused told that part of the bribe amount be given to their Assistant Commissioner Subhash Narain. He admitted that witness Praveen Gupta recovered the said bundle of GC notes from the armpit of accused Hari Chand. Both the hands of accused Hari Chand were washed in the solution of Sodium Carbonate which turned into pink and same were transferred to bottles marked RHW Ex.P1 and LHW Ex.P2. Further proceedings were conducted in the chamber of MLO, Transport Department. He and Praveen Gupta AC No.19/2008 CBI Vs. Hari Chand etc. Page 44 of 109 tallied the number of recovered GC notes with the numbers mentioned in handing over memo Ex.PW1/F which tallied in toto. The newspaper in which the tainted bribe amount was packed was seized. Witness identified the recovered GC notes as Ex.P8 (collectively). He further stated that left inner side of blue coat and outer side of shirt of accused Hari Chand were washed in Sodium Carbonate which turned into pink. The said washes were transferred to glass bottles marked LICW Ex.P3 and LOSW Ex.P4. The cassette Ex.P7 containing spot conversation was played in the Court and witness (PW12) identified his voice, voice of independent witness Praveen Gupta, voice of complainant and voice of accused Hari Chand when cassette was played.
55 Witness Neeraj Jain (PW12) has stated that recovery memo Ex.PW1/G was prepared in which details of post trap proceedings were mentioned which bears his signatures. He admitted preparation of voice identification memo Ex.PW1/K, transcription Ex.PW1/H, transcription Ex.PW1/M. He also stated that specimen voice of accused persons were taken in CBI office. 56 From the testimony of PW12 Neeraj Jain who is the independent witness, it has been corroborated that accused Hari AC No.19/2008 CBI Vs. Hari Chand etc. Page 45 of 109 Chand came to the spot and demanded bribe from the complainant in his car. This witness has categorically stated that he had witnessed the demand of bribe by accused Hari Chand and seen the transaction of bribe being the shadow witness. He has also stated that witness Praveen Gupta recovered tainted GC notes from the left arm pit of accused Hari Chand. Though, this witness is silent on the role of accused Sanjay Kumar Singh, but he has admitted that accused Sanjay Kumar Singh was present at the spot and had a conversation with complainant when they returned back and stopped in front of Zonal Transport Office.
57 Another independent witness PW13 Praveen Gupta has stated that he attended CBI office on 31.12.2007 and 01.01.2008 where he met the CBI officials, complainant and another witness Neeraj Jain. Complainant produced GC notes and the proceedings conducted in CBI office were recorded in handing over memo ExPW1/F. Thereafter, they proceeded to the spot. He was positioned at a distance from the meeting point. Neeraj Jain was with the complainant. After sometime, one vehicle came and complainant had some conversation with the person who was in the vehicle. After some conversation, car of the complainant and the other vehicle AC No.19/2008 CBI Vs. Hari Chand etc. Page 46 of 109 started moving. There was some transaction/conversation between the said persons. On receipt of prefixed signal, he and rest of the team members rushed towards the spot. Neeraj Jain was already at the spot. One accused was found at the spot whose name was revealed as Hari Chand. Hari Chand was interrogated by CBI officials. Accused Hari Chand was directed to speak to his higher official and he had a conversation by using a mobile instrument. The said conversation was recorded. Thereafter, Hari Chand was taken to Zonal Transport Office. One other accused was there but he had come subsequently.
58 This witness (PW13) was also declared hostile and during his crossexamination by Ld. PP for CBI, he admitted that complainant produced GC notes amounting to Rs.2.5 lacs in CBI office. He admitted the proceedings conducted in CBI office. He admitted that at about 10 a.m. complainant was waiting in his car in front of Cross River Mall. One vehicle came there and stopped at the back side of car of the complainant. He stated that one person came out of the said vehicle and moved towards complainant. Complainant came out of his car and started conversing with that person on the footpath. After some conversation, complainant and accused Hari AC No.19/2008 CBI Vs. Hari Chand etc. Page 47 of 109 Chand went towards car of the complainant. He stated that Neeraj Jain narrated that when he was sitting on the driving seat, he saw through rear view mirror the transaction of bribe between complainant and accused Hari Chand. He stated that accused Sanjay Kumar Singh was present there. He further stated that on asking, complainant narrated the facts similar to what was stated by Neeraj Jain. He admitted that complainant disclosed that accused had stated that part of the bribe amount would also be given to some senior officer. He admitted that accused Hari Chand was having bundle of tainted GC notes under his armpit. Witness categorically stated that on the direction of CBI officers, he recovered said tainted bundle of GC notes from under the armpit of accused Hari Cahnd. Number of recovered GC notes were tallied with the number of GC notes recorded in handing over memo Ex.PW1/F and found to be correct. Witness identified the recovered GC notes as Ex.P8. 59 Witness (PW13) further stated that hands of accused Hari Chand were washed in the colourless solution of Sodium Carbonate which turned to pink. He further stated that accused Hari Chand called accused Subhash Narain from his mobile phone and the said conversation was recorded. Further proceedings were conducted AC No.19/2008 CBI Vs. Hari Chand etc. Page 48 of 109 in the chamber of Sh. V.A. Vasu, MLO. He further stated that left ide of coat and left outer side of shirt of accused Hari Chand were washed in the colourless solution which also turned into pink. Witness identified wrapping newspaper as Ex.P20, coat as Ex.P21 and shirt as Ex.P22. He admitted that both accused Sanjay Kumar Singh and Hri Chand were arrested in his presence vide memos Ex.PW12/B and Ex.PW12/C. A site plan Ex.PW12/D was prepared. The recording of the digital recorder was transferred to audio cassette. He admitted that recovery memo Ex.PW1/G was prepared inside the Zonal Office. The contents of recovery memo were explained to them before he signed the same. He admitted preparation of transcription Ex.PW1/J, transcription memo Ex.PW1/L, specimen voice recording memo Ex.PW12/G, taking of specimen voices of accused persons and transcription Ex.PW1/H. 60 Though this witness (PW13) has not supported the case of prosecution on some points, but he has admitted the presence of accused Hari Chand and Sanjay Kumar Singh at the spot. He has also proved the recovery of tainted GC notes from the possession of accused Hari Chand. He has also admitted the preparation of documents in CBI office as well as at the spot.
AC No.19/2008 CBI Vs. Hari Chand etc. Page 49 of 109 61 The TLO DSP Sandeep Chaudhary (PW15) and DSP Rajesh Chahal (PW16) have corroborated that both accused Hari Chand and Sanjay Kumar Singh came to the spot; had a conversation with the complainant; accused Hari Chand sat in the car of the complainant where transaction of bribe amount had taken place and both these accused were apprehended at the spot. They have also corroborated that tainted bribe money was recovered from the person of accused Hari Chand. They have also stated that on questioning, accused Hari Chand informed that part of the bribe amount was to be given to accused Subhash Narain, Assistant Commissioner. Accused Hari Chand made a call to accused Subhash Narain which confirmed that accused Subhash Narain was also in conspiracy with his co accused persons in demanding and accepting bribe. 62 It has been argued by Ld. Counsel for accused Subhash Narain that there is no evidence against this accused. It is argued that the alleged conversation between him and accused Hari Chand has not been proved by independent witnesses PW12 & PW13. They have denied that they heard any such conversation. There is no primary evidence that accused Subhash Narain had any conversation with accused Hari Chand. Even the complainant has not corroborated AC No.19/2008 CBI Vs. Hari Chand etc. Page 50 of 109 that any such conversation between these accused had taken place. In support of this contention, judgment in case of Mahabir Prasad Verma Vs. Dr. Surinder Kaur (1982) 2 SCC 258 has been relied upon in which it was observed that tape recorded conversation can only be relied upon as corroborative evidence of conversation deposed by any of the parties to the conversation and in the absence of evidence of any such conversation, the tape recorded conversation is indeed no proper evidence and cannot be relied upon. 63 Ld. Counsel for accused Subhash Narain has further argued that the prosecution has failed to prove the voice of accused as the same was not identified either by the complainant or by the independent witnesses. It is further argued that the digital voice recorder allegedly used by the CBI has not been produced or examined in the Court to rule out the tampering with the recorded conversation. In support of this contention, judgment in case of Ziyauddin Burhanuddin Bukhari Vs. Brijmohan Ramdass Mehra and others (1976) 2 SCC 17 has been relied upon in which it was observed that the voice of the person alleged to be speaking must be identified by the make of the record or by others who knew it; the accuracy of what was actually recorded had to be proved by the AC No.19/2008 CBI Vs. Hari Chand etc. Page 51 of 109 maker of the record; and the subject matter recorded had to be shown to be relevant according to rules of evidence. On similar point, judgments in case of Ram Singh and Ors. Vs. Col. Ram Singh 1985 (Supp) SCC 611 and Ashish Kumar Dubey Vs. State through CBI MANU/DE/0860/2014 have been relied upon.
64 Next judgment relied upon is in case of Nilesh Dinkar Paradkar Vs. State of Maharashtra (2011) 4 SCC 143 in which it was observed that the Courts have to be extremely cautious in basing a conviction purely on the evidence of voice identification as it is prone to such extensive and sophisticated tampering, doctoring and editing that the reality can be completely replaced by fiction. 65 The transcription Ex.PW1/J is of the conversation between accused Hari Chand and the complainant. In this conversation, accused Hari Chand confirmed that they were coming at Cross River Mall i.e. the place where the trap was laid and both accused Hari Chand and Sanjay Kumar met the complainant and were apprehended. This transcription further proves that accused Hari Chand demanded bribe from the complainant. In this conversation, accused Hari Chand asked the complainant that the denomination was of higher value or lesser value, to which complainant replied that the AC No.19/2008 CBI Vs. Hari Chand etc. Page 52 of 109 packets were of thousand. Accused asked the complainant not to disclose said fact to anyone. He has also said that the Assistant Commissioner (AC) would be managed by them. When complainant asked accused Hari Chand as to what had to be disclosed to the Assistant Commissioner, accused Hari Chand said to him to inform 3 to the Assistant Commissioner (AC).
66 This transcription Ex.PW1/J clearly establishes the case of the prosecution that both accused Hari Chand and Sanjay Kumar Singh came to the spot as this fact has also been admitted by the complainant and other witnesses. It further established that demand of bribe was made by accused Hari Chand from the complainant in his car and then accepted the bribe money from him. 67 Transcription Ex.PW1/H of conversation between accused Hari Chand and accused Subhash Narain shows that accused Hari Chand informed accused Subhash Narain that they had seen the investigation of J.V. Industries, the company of the complainant. When he asked accused accused Subhash Narain as to whether he would talk about the len den (give or take), to which accused Subhash Narain asked him to see the matter. Accused Hari Chand further asked accused Subhash Narain that if some settlement arrived, where AC No.19/2008 CBI Vs. Hari Chand etc. Page 53 of 109 he (Subhash Narain) would meet him, to which accused Subhash Narain said that he was at his home. When accused Hari Chand asked accused Subhash Narain to settle on what amount, accused Subhash Narain replied to see himself. Accused Hari Chand further informed that he had asked for 10 and initially complainant was denying but he had managed something, to which accused Subhash Narain said that he would come to office and talk.
68 This conversation between accused Hari Chand and Subhash Narain establishes the overt act of accused Subhash Narain also that he was in conspiracy of his coaccused persons as he agreed to accept the bribe money to be received by accused Hari Chand. 69 The scientific evidence in form of report of voice expert as well as wash expert further proves the case of prosecution. Sh. D.K. Tanwar (PW3), Sr. Scientific Officer, CFSL has deposed that he had examined the questioned cassettes and the cassettes containing specimen voices of accused persons and gave his report Ex.PW3/B. As per his report Ex.PW3/B, the voice contained in questioned cassettes matched with the specimen voice of all the three accused persons. He has opined that the voice contained in the questioned cassettes were the probable voice of accused Hari Chand, AC No.19/2008 CBI Vs. Hari Chand etc. Page 54 of 109 Sanjay Kumar Singh and Subhash Narain whose specimen voice were contained in cassettes marked S1, S2 and S3 respectively. 70 So, the report of the voice expert (PW3) also establishes the case of the prosecution that the conversation between complainant and accused persons and between accused Hari Chand and accused Subhash Narain matched with their specimen voice during which talks of demand, agreeing to accept the bribe and acceptance of bribe between them had taken place. The non production of digital voice recorder cannot be said to be fatal to the case of prosecution in view of the report of the voice expert. So, the contention raised on behalf of the accused that the voice was not identified and digital voice recorder was not examined in the Court, is of no consequence. Therefore, the authorities relied upon in case of Ziyauddin Burhanuddin Bukhari (supra), Ram Singh (supra), Ashish Kumar Dubey (supra) and Nilesh Dinkar Paradkar Vs. State of Maharashtra (supra) are of no help to the accused as the same are distinguishable from the facts and circumstances of the present case. 71 The report of wash expert also proves the case of prosecution that bribe money was recovered from accused Hari Chand. To prove this fact, prosecution has examined Sh. R.S. AC No.19/2008 CBI Vs. Hari Chand etc. Page 55 of 109 Chauhan (PW4), Sr. Scientific Officer, GradeII, Chemistry, CFSL. He has deposed that four sealed exhibits marked RHW (right hand wash) Ex.P1, LHW (left hand wash) Ex.P2, LICW (left inner side of coat wash) Ex.P3 and LOSW (left inner side of shirt wash) Ex.P4 were received in CFSL which were examined by him and he gave report Ex.PW4/B. 72 The report Ex.PW4/B of wash expert (PW4) shows that all the above exhibits i.e. RHW Ex.P1, LHW Ex.P2, LICW Ex.P3 and LOSW Ex.P4 gave positive tests for the presence of phenolphthalein. This report proves the case of the prosecution that the hand washes as well as shirt and coat wash of accused Hari Chand were smeared with phenolphthalein powder which transferred to his hands when he accepted the smeared GC notes from the complainant and kept the same on his left armpit under his coat. It establishes beyond reasonable doubt that accused Hari Chand accepted the bribe amount from the complainant and same was recovered from his person.
73 It is argued by ld. Counsel for accused Subhash Narain that the alleged inspection in the factory of the complainant was not authorized by him. It is submitted that accused Subhash AC No.19/2008 CBI Vs. Hari Chand etc. Page 56 of 109 Narain had not given any authorization to coaccused persons to conduct the inspection. It is further submitted that accused Subhash Narain could not help the complainant in getting a favorable report as the Anti Evasion Cell had only asked for monthly returns of company of the complainant. It is further submitted that the role attributed to accused Subhash Narain is solely on the disclosure statement of accused Hari Chand which is not permissible under the law. 74 Ld. Counsel for accused Hari Chand has argued that he being Inspector had no power or position to show any favour to the complainant in giving favorable report. It is further submitted that the complainant was so naive as he was a shrewd businessman. In support of the contentions, reliance has been placed in case of State (Delhi Administration) Vs. Satish Chand Verma ILR (1987) II Delhi 467 in which it was held that where in a case the specific allegation against the accused is that he demanded illegal gratification to do a favour in his official capacity, it is absolutely necessary for the prosecution to show that the accused was in a position to do such favour. On similar point, judgments in case of Hakumat Rai Nigam Vs. The State (1982) 22 DLT 370 and Gurmeet Singh Vs. State of Punjab 2010 (1) Crimes 616 (P&H) have been relied upon. AC No.19/2008 CBI Vs. Hari Chand etc. Page 57 of 109 75 The contention of the accused persons that accused Subhash Narain had not given any authority to conduct the investigation in the factory of the complainant and that they had no occasion or power to give any favourable report, is not borne out from the record. The search list Ex.PW10/A shows that search in the office rooms of accused Hari Chand and Sanjay Kumar Singh was conducted on 01.01.2008. In the search, files of Central Excise in respect of M/s J.V. Industries Pvt. Ltd., company of the complainant, were seized apart from other documents. Ex.PW10/DB is the letter vide which Assistant Commissioner, Central Excise, Laxmi Nagar was asked to forward the copies of monthly returns of the company of the complainant. Vide letter Ex.PW10/DA in addition to monthly returns, office of the Assistant Commissioner, Central Excise, Laxmi Nagar was asked to forward the details of manufacturing process as well as list of inputs; any subsequent information in the said context; and process flow chart along with copy of ground plan of the company of the complainant.
76 The search list Ex.PW11/A of the office premises of accused Subhash Narain show that his office was also searched in his presence and during search, several files, documents and Movement AC No.19/2008 CBI Vs. Hari Chand etc. Page 58 of 109 Register were seized.
77 PW2 Sh. Rajeshwar Kumar Tyagi, Deputy Commissioner of Central Excise in his testimony has stated that file of M/s J.V. Industries Pvt. Ltd. was maintained in Range 38. He further stated that accused Sanjay Kumar Singh was the Superintendent and accused Hari Chand was the Inspector in the said range. He further stated that Anti Evasion Cell wrote two letters Ex.PW2/A and Ex.PW2/B to Assistant CommissionerVIII seeking monthly returns of M/s J.V. Industries. He further stated that those two letters were marked by accused Subhash Narain to Range 38 being the Incharge of said range apart from incharge of four other ranges. He has also proved the file Ex.PW2/C of M/s J.V. Industries and has stated that the said file was being dealt with by accused Sanjay Kumar Singh being Incharge of Range 38. He also proved the Movement register as Ex.PW2/D. 78 So, the testimony of PW2 duly proves that information was sought from accused Subhash Narain, Assistant Commissioner with regard to company of the complainant and he marked the matter to accused range 38 in which accused Sanjay Kumar Singh being Superintendent was the incharge. It is also AC No.19/2008 CBI Vs. Hari Chand etc. Page 59 of 109 proved that both accused Sanjay Kumar Singh and Hari Chand were posted in Range 38 at the relevant time and they were marked with the matter of company of the complainant. The seized documents from the office premises of accused persons duly proves that they were handling the matter of the company of the complainant and accused Subhash Narain marked the matter to his coaccused persons. It has been convincingly proved that the range/office of the accused persons were dealing with the matter of M/s J.V. Industries Pvt. Ltd., company of the complainant and had every purpose to demand and accept illegal gratification from the complainant to give a favorable report. The contention of the ld. defence counsel that only the monthly returns were sought, is without any basis as letter Ex.PW10/DA shows that in addition to monthly returns, accused Subash Narain, being Assistant Commissioner, Central Excise, Laxmi Nagar was asked to forward the details of manufacturing process as well as list of inputs; any subsequent information in the said context; and process flow chart along with copy of ground plan of the company of the complainant. Therefore, the authorities relied upon by the accused are of no help to him.
79 It is argued by the ld. defence counsel that the AC No.19/2008 CBI Vs. Hari Chand etc. Page 60 of 109 testimony of complainant as well as independent witnesses (PW12 & PW13) cannot be relied upon as they have turned hostile. It is further argued that there are several material contradictions in their statements which falsifies the case of the prosecution and raises a doubt about the demand and acceptance of bribe. There are several discrepancies in their statements. There is not even any corroboration to the allegations levelled against the accused persons. 80 In support of the above contentions, ld. counsel for accused Hari Chand has relied upon judgment in case of Sita Ram Vs. The State of Rajasthan AIR 1975 SC 1432; Balaka Singh and others Vs. The State of Punjab (1975) 4 SCC 511; Ram Swaroop and others Vs. State of Rajasthan (2004) 13 SCC 134; Arjun Bajirao Kale Vs. State of Maharashtra 2009 (4) Crimes 504 (Bom.); Anand Prakash and Anr. Vs. State of Haryana 2008 (4) Crimes 365 (P&H).
81 Ld. Counsel for accused Sanjay Kumar Singh has argued that the oral testimony of the complainant and independent witnesses examined by the prosecution is not reliable and full of contradictions and discrepancies. It is submitted that such a testimony of the witnesses cannot be relied upon to base the AC No.19/2008 CBI Vs. Hari Chand etc. Page 61 of 109 conviction as the same creates about the case of prosecution and the story put forward. The complainant as well as independent witnesses who were part of the trap team have turned hostile and have not supported the case of prosecution. There are several material contradictions in their testimony. In support of these contentions, reliance has been placed on judgments in case of Suraj Sigh Vs. State of U.P. JT 2008 (8) SC 411; C. Magesh Vs. State of Karnataka AIR 2010 SC 2768; Kali Ram Vs. State of H.P. 1973 SC (Cri.) 1048; R.P. Kapoor Vs. State of Punjab AIR 1973 SC 498; Sat Paul Vs. Delhi Admn. AIR 1976 SC 294; State of Maharashtra Vs. Wasudeo Ramchandra (1981) 3 SCC 199; Toran Sigh Vs. State of M.P. AIR 2002 SC 2807; State of Andhra Pradesh Vs. T. Venkateswar Rao 2004 III AD (SC) 493); Rudrappa Ramappa Jainpur & Ors. Vs. State of Karnataka 2004 (2) JCC 1172; Ram Swarup & Ors. Vs. State of Rajasthan 2004 (1) JCC 555; Karuppanna Thevar & Ors. Vs. State of Tamilnadu AIR 1976 SC 980; Aher Raja Khima Vs. State of Saurastra 1955 SCR (2) 1285; Avtar Singh Vs. State of Punjab 2006 IX AD (SC) 335 ; Raghbir Sigh Vs. State of Punjab AIR 1976 SC 91; Hira Lal Vs. State of Haryana AIR 1971 SC 356; AC No.19/2008 CBI Vs. Hari Chand etc. Page 62 of 109 State Vs. Satish Chand Sharma 1987 Cri.L.J. 1205; Khilli Ram Vs. State of Rajasthan AIR 1985 SC 79; Panna Lal Damodhar Rathi Vs. State of Maharashtra 1980 SCC (Cri.) 121; Ayyasami Vs. State of Tamilnadu 1992 Cri.L.J. SC 608; Chanderbhan Vs. State (CBI) 73 (1998) DLT 318; Subhash Prabhat Sonvane Vs. State of Gujarat AIR 2003 SC 2169; Karnail Singh Vs. State of Punjab (2009) 3 C.C. Cases (HC) 145; State of Maharashtra Vs. D.L. Rao Wankhede 2009 (4) RCR (Cri.) 217; A. Subair Vs. State of Kerala 2009 VII AD (SC) 117; V. Kannan Vs. State 2009 IX AD (SC) 293; Banarsi Dass Vs. State of Haryana 2010 (3) JCC 1842; Rajinder Singh Vs. State of Punjab 2010 (1) C.C. Cases (HC) 60; Harbans Singh Vs. State of Punjab 2010 (2) C.C. Cases (HC) 287; Ashok Kumar Vs. State of Haryana 2011 (1) C.C. Cases (HC) 281; Rajinder Prasad Vs. State 43 (1991) DLT 28; Som Prakash Vs. State of Delhi (1974) 3 SCR 200; Lachman Dass Vs. State of Punjab AIR 1970 SC 450. 82 Though it is correct that the complainant (PW1) and independent witnesses (PW12 & PW13) have turned hostile on some points and have not supported the case of prosecution on every count, but their testimony cannot be discarded mere on the basis that they AC No.19/2008 CBI Vs. Hari Chand etc. Page 63 of 109 have turned hostile. It is a settled law evidence of a person does not become effaced or washed of from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of prosecution. It was also held that evidence of such a witness cannot be rejected in toto. The complainant has corroborated the contents of the complaint Ex.PW1/D made to the CBI that when he met accused Hari Chand and Sanjay Kumar Singh, demand of bribe of Rs.10 lacs was made from him. The complaint Ex.PW1/D is specific that both these accused demanded bribe of Rs.10 lacs from the complainant to give a favorable report with regard to raid conducted by Anti Evasion Cell of Central Excise in the factory of the complainant. The complainant has also stated that both these accused visited the factory of the complainant on 31.12.2007 when again demand of bribe was made. 83 The complainant has also stated that after making his complaint and verification of demand of bribe, a trap was laid by the CBI during which also demand of bribe was made from him by accused Hari Chand. He has also stated that accused Hari Chand accepted the bribe of Rs.2.5 lacs during trap and tainted GC notes were recovered from him. He has also stated that at the spot, accused AC No.19/2008 CBI Vs. Hari Chand etc. Page 64 of 109 Hari Chand was accompanied by accused Sanjay Kumar Singh. Both the independent witnesses have also stated that during trap, accused Hari Chand accepted bribe from the complainant and same was recovered from his person. They have also corroborated the testimony of the complainant that accused Hari Chand demanded and accepted bribe from the complainant and the same was recovered from him. Though, the independent witnesses have not stated anything against accused Sanjay Kumar Singh, but they have stated that accused Sanjay Kumar Singh was apprehended at the spot. 84 It has also come in evidence that accused Hari Chand had made a telephone call to accused Subhash Narain after his apprehension during which accused Subhash Narain also agreed to accept the bribe to be obtained from the complainant. The recorded conversation between the accused persons during the trap and after apprehension of accused Hari Chand, further corroborates the case of the prosecution that all the three accused were hand in glove with each and they had criminally conspired with each other to demand bribe from the complainant. Though there are some contradictions and discrepancies in the testimony of witnesses, but such contradictions are not material which can go to the root of the matter. AC No.19/2008 CBI Vs. Hari Chand etc. Page 65 of 109 I am not convinced with the arguments advanced by Ld. Defence counsel that the testimony of complainant and independent witnesses cannot be relied upon as there are contradictions in their testimony, as they are not which can be to the root of the matter and discredit the case set up by the prosecution. Secondly, in State of U.P. Vs. M.K. Anthony, AIR 1985 SC 48 ; State of Rajasthan Vs. Om Prakash, AIR 2007 SC 2257 ; State Vs. Saravanan and Others, AIR 2009 SC 152 and Prithu @ Prithvi Chand and Another Vs. State of Himachal Pradesh (supra), it is settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evidence in its entirety. Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to AC No.19/2008 CBI Vs. Hari Chand etc. Page 66 of 109 convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. Therefore, the authorities relied upon by the accused persons is of no help to them.
85 It is further argued by Ld. defence counsel that the story put forth by the prosecution is not reliable as the place of alleged payment was not fixed. It is argued that neither in the complaint nor during alleged preverification of demand, it came that the place of transaction would be in front of Cross River Mall. It is submitted that the accused persons have been falsely implicated in the present case by showing their arrest near Cross River Mall after forming a concocted story of trap. It is further argued that even there is no evidence on record that the date of transaction would be 01.01.2008 and the CBI just to make out a case against the accused persons, concocted a story. It is further argued that if the case of prosecution is to believed, then how the bribe amount was reduced to Rs.2.5 lacs has not been explained. It is submitted that as per case of prosecution itself, the bribe demanded was Rs.10 lacs, but how it came to be Rs.2.5 lacs when the alleged transaction had taken place AC No.19/2008 CBI Vs. Hari Chand etc. Page 67 of 109 and this fact has not been explained by the prosecution. In support of this contention, reliance has been placed on judgment titled P. Parasurami Reddy Vs. State of Andhra Pradesh (2011) 2 SCC 294 in which the conviction of the appellant was reversed while observing that the recovery was not proved and the prosecution could not prove that accused had fixed time and place to receive bribe money. 86 To appreciate the contentions raised by Ld. defence counsel, I have gone through the evidence on record. The complainant (PW1) in his testimony has stated that on 01.10.2008, he went to CBI office and stated that he could arrange only Rs.2.5 lacs. He also stated that he received telephone call from accused Hari Chand about the place of meeting and accused told that the place of meeting near Cross River Mall. He further stated that on repeated requests as well as on expression his inability to arrange such money (Rs.10 lacs) in short time, accused Hari Chand postponed the transaction and asked him to deliver the said bribe on the next day i.e. 01.10.2008. During play of cassette in the Court, complainant identified the voice of accused Hari Chand that he fixed the place of meeting at Cross River Mall.
87 The testimony of the complainant that the date of AC No.19/2008 CBI Vs. Hari Chand etc. Page 68 of 109 transaction was postponed to 01.01.2008 and place of meeting was fixed at Cross River Mall, has also been corroborated by transcription Ex.PW1/J. In this transcription of the talks between complainant and accused Hari Chand, it is clear that the meeting place was fixed at Cross River Mall from where both accused Hari Chand and Sanjay Kumar Singh were apprehended. In view of this clear cut evidence, there remains no doubt that the date and place of transaction was already fixed from where both these accused were apprehended. It has also come in the testimony of the complainant (PW1) that he could not arrange the bribe amount of Rs.10 lacs demanded by the accused persons, rather he could arrange only Rs.2.5 lacs, which were recovered from the person of accused Hari Chand at the time of trap. Therefore, there is no force in the contention raised by ld. defence counsel and the authority relied upon in case of Parasurami Reddy (supra) is of no help to accused persons as the same is distinguishable from the facts of the present case.
88 In view of above discussion and totality of evidence, the prosecution has successfully established that all the three accused persons demanded bribe from the complainant or agreed to accept the accept bribe from the complainant. The conversation of accused Hari AC No.19/2008 CBI Vs. Hari Chand etc. Page 69 of 109 Chand and Sanjay Kumar Singh with complainant at the spot and the conversation between accused Hari Chand and accused Subhash Narain clearly establishes that accused Hari Chand and Sanjay Kumar Singh demanded bribe of Rs.10 lacs from the complainant and accused Subhash Narain agreed to accept illegal gratification which was to be accepted from the complainant. It has also been established that accused Hari Chand accepted bribe of Rs.2.5 lacs from the complainant in his car and its recovery was effected from his person. Criminal Conspiracy 89 The next question arises for consideration is whether there was any criminal conspiracy between the accused persons for demand and acceptance of the bribe amount from the complainant (PW1). The essence of criminal conspiracy is the unlawful combination and an agreement of minds between two or more accused persons whereby they cooperate to accomplish an object. 90 While dealing with criminal conspiracies, Hon'ble Apex Court in case titled K.R. Purushothaman vs. State of Kerala, AIR 2006 SC 35 observed that "to constitute a conspiracy, meeting of minds of two or more persons for doing an illegal act or an act by an illegal means is the first and primary condition and it is not necessary AC No.19/2008 CBI Vs. Hari Chand etc. Page 70 of 109 that all the conspirators must know each and every details of the conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are proved by the circumstantial evidence, as the conspiracy and its objects are usually deduced from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind well known rule governing circumstantial evidence viz. each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the accused is possible. The criminal conspiracy is an independent offence in Indian Penal Code. The unlawful agreement is sine qua non for constituting offence under Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two of more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, AC No.19/2008 CBI Vs. Hari Chand etc. Page 71 of 109 of the plan would not per se constitute conspiracy." 91 In another case titled Shivnarayan Laxminarayan Joshi Versus State of Maharashtra 1980 SCC (Cri.) 493, the Hon'ble Supreme Court has also observed that it is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design which has been amply proved by the prosecution as found as a fact by the High Court. 92 In the present case, it is alleged that all the accused persons were in conspiracy with each other to demand bribe from the complainant or agreed to accept bribe from the complainant. 93 It has been argued by Ld. counsel for accused persons that prosecution has failed to prove that there was a prior meeting of minds between the accused persons, therefore, accused persons are entitled to be acquitted for charge under Section 120B IPC. They have further argued that there is no evidence on record to suggest that accused persons criminally conspired with each other to demand and accept bribe from the complainant. In support of the arguments advanced, ld. counsel for accused Hari Chand has relied upon AC No.19/2008 CBI Vs. Hari Chand etc. Page 72 of 109 judgment in case of P.K. Narayan Vs. State of Kerala (1995) 1 SCC 142 in which it was observed that the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. The circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. But if those circumstances are compatible also with the innocence of the accused persons then it cannot be held that the prosecution has successfully established its case. On similar point, judgments in case of State of Kerala Vs. P. Sugathan and Another (2000) 8 SCC 203 and Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao (2012) 9 SCC 512 have been relied upon.
94 Ld. Counsel for accused Subhash Narain has argued that the prosecution has not brought any evidence on record to show that accused Subhash Narain was in agreement with coaccused persons for demanding bribe from the complainant. It is submitted that there is no evidence on record to show that accused Hari Chand ever made any telephone call to accused Subhash Narain prior to AC No.19/2008 CBI Vs. Hari Chand etc. Page 73 of 109 01.01.2008, the day of trap. The call records show that accused Hari Chand made call to accused Subhash Narain at the behest of CBI officials. Even the alleged conversation between them does not suggest any prior meeting of minds for demand of bribe from the complainant. In support of these contentions, judgment in case of CBI, Hyderabad Vs. K. Narayan Rao (supra), A.K. Ganju Vs. CBI 2014 I AD (Delhi) 349 and K.R. Purushottam Vs. State of Kerala (supra) have been relied upon. The ratio of judgments of K. Narayan Rao and K.R. Purushottam has already been discussed above and the ratio of judgment in case of A.K. Ganju is also similar. 95 Ld. Counsel for accused Subhash Narain has also relied upon judgment in case of Noor Mohd. Vs. State of Maharashtra MANU/SC/0157/1970 in which it was observed that in most case proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct, among other factors constitute relevant material.
96 It is further argued that it is the cumulative effect of the proved circumstances which should be taken into consideration in determining the guilt of accused. On this point, judgment in case of AC No.19/2008 CBI Vs. Hari Chand etc. Page 74 of 109 State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru MAU/SC/0465/2005 has been relied upon in which it was observed that those who committed the offences pursuant to the conspiracy by indulging in various overt acts will be individually liable for those offences in addition to being liable for criminal conspiracy, ut the nonparticipant conspirators cannot be found guilty of the offence committed by the other conspirators.
97 The evidence brought on record in form of complaint Ex.PW1/D made by the complainant (PW1) to the CBI clearly proves that accused Hari Chand and Sanjay Kumar Singh criminally conspired with each other in demanding bribe from the complainant (PW1). In the complaint Ex.PW1/D, it is mentioned that on 28.12.2007 when complainant went to the office of Central Excise at Laxmi Nagar, he met accused Hari Chand there who took him to accused Sanjay Kumar Singh. Both these accused asked the complainant that they were asked by Anti Evasion Cell to conduct inspection in the factory of the complainant and the could get the matter settled by sending a favorable report. It is specifically mentioned therein that both these accused demanded bribe of Rs.10 lacs from the complainant in order to send a favorable report. They AC No.19/2008 CBI Vs. Hari Chand etc. Page 75 of 109 even threatened the complainant that if he would not pay bribe of Rs. 10 lacs on 30.12.2007, they would send report against the factory of the complainant.
98 The complainant (PW1) in his testimony has corroborated the contents of his complaint Ex.PW1/D. He stated that he made complaint Ex.PW1/D to the CBI as he did not wish to pay any bribe. He has stated that on 28.12.2007, he met accused Hari Chand in his office who demanded bribe of Rs.10 lacs for correcting the report. He also stated that accused Hari Chand and Sanjay Kumar Singh visited his factory and insisted that the complainant should make the payment. In his further testimony, he has stated that while trap was laid at Cross River Mall, both accused Hari Chand and Sanjay Kumar Singh came there where the talks of bribe had taken place and the bribe amount was accepted by accused Hari Chand. 99 The presence of both the accused Hari Chand and Sanjay Kumar Singh at the spot at the time of laying trap is also proved from the testimony of independent witnesses (PW12 & PW13). Though, both these witnesses have not supported the case of prosecution in toto, but they have admitted that both these accused were present at the spot and both of them were apprehended by the AC No.19/2008 CBI Vs. Hari Chand etc. Page 76 of 109 CBI officials at the spot.
100 The Trap Laying Officer DSP Sandeep Chaudhary (PW15) and another CBI Officer DSP Rajesh Chahal (PW16) have also also corroborated that both accused Hari Chand and Sanjay Kumar Singh came at the spot i.e. in front of Cross River Mall; both of them had conversation with the complainant (PW1); accused Hari Chand demanded and accepted bribe money from the complainant; recovery of bribe money was effected from the person of accused Hari Chand and both these accused were apprehended and arrested at the spot. The complainant as well as both CBI officials have stated that the conversation between the complainant and accused Hari Chand and Sanjay Kumar Singh which had taken place in CBI office, on the way and at the spot, was recorded which confirmed the demand of bribe by them. The transcriptions Ex.PW1/M, Ex.PW1/H and Ex.PW1/J also proves the case of the prosecution that accused Hari Chand and Sanjay Kumar Singh had criminally conspired with each other in demanding and accepting bribe from the complainant. 101 The transcription Ex.PW1/H of talks between accused Hari Chand and accused Subhash Narain shows that accused Hari Chand informed accused Subhash Narain that they had seen the AC No.19/2008 CBI Vs. Hari Chand etc. Page 77 of 109 investigation of J.V. Industries, the company of the complainant. When he asked accused accused Subhash Narain as to whether he would talk about the len den (give or take), to which accused Subhash Narain asked him to see the matter. Accused Hari Chand further asked accused Subhash Narain that if some settlement arrived, where he (Subhash Narain) would meet him, to which accused Subhash Narain said that he was at his home. When accused Hari Chand asked accused Subhash Narain to settle on what amount, accused Subhash Narain replied to see himself. Accused Hari Chand further informed that he had asked for 10 and initially complainant was denying but he had managed something, to which accused Subhash Narain said that he would come to office and talk.
102 The report of voice expert as well as wash expert further proves the case of prosecution. As per report Ex.PW3/B, the voice contained in questioned cassettes matched with the specimen voice of all the three accused persons. He has opined that the voice contained in the questioned cassettes were the probable voice of accused Hari Chand, Sanjay Kumar Singh and Subhash Narain whose specimen voice were contained in cassettes marked S1, S2 and S3 respectively. The report of the voice expert (PW3) also establishes AC No.19/2008 CBI Vs. Hari Chand etc. Page 78 of 109 the case of the prosecution that the conversation between complainant and accused persons and between accused Hari Chand and accused Subhash Narain matched with their specimen voice during which talks of demand, agreeing to accept the bribe and acceptance of bribe between them had taken place. These conversations also establishes the role of accused Subhash Narain that he was also in conspiracy with his coaccused persons as he agreed to accept the bribe money which was to be received by accused Hari Chand from the complainant. Therefore, the authorities relied upon by the accused persons are of no help to them as the same are distinguishable from the facts & circumstances of the present case. In the present case, it has duly been established beyond reasonable doubt that all the accused persons criminally conspired with each other in demanding or accepting or agreeing to accept bribe from the complainant. 103 It has been argued by ld. defence counsel that the prosecution is bound to prove its case against the accused persons beyond reasonable doubt. It is submitted that where two views are possible one favourable to accused is to be taken into consideration and accused are liable to be acquitted. In support of this contention, reliance has been placed on judgments titled T. Subramanian Vs. AC No.19/2008 CBI Vs. Hari Chand etc. Page 79 of 109 State of Tamil Nadu AIR 2006 SC 836, Vikramjit Singh @ Vickey Vs. State of Punjab 2007 (1) Crimes 181 and Sambhaji Hindurao Deshmukh & Ors. Vs. State of Maharashtra 2008 (1) C.A.R. (SC)
235. 104 It is correct that it is a settled law that if from the evidence and material brought on record, two views are there i.e. one favouring the accused and one favouring the prosecution, then the view favorable to accused is to be taken into consideration. But in the present case, I am not agreeable with this contention of the ld. defence counsel inasmuch as it is established beyond reasonable doubt that all the accused persons hatched a criminal conspiracy and the object thereof was to take bribe from the complainant. It has also been established beyond reasonable doubt that firstly accused Hari Chand and Sanjay Kumar Singh demanded illegal gratification of Rs.10 lacs from the complainant in their office and at the time of inspection of factory of the complainant. It has also been established that during telephonic conversation also demand of bribe was made. It is further established that during laying of trap, accused Hari Chand and Sanjay Kumar Singh came to collect the bribe money from the complainant; accused Hari Chand accepted the illegal gratification of Rs.2.5 lacs AC No.19/2008 CBI Vs. Hari Chand etc. Page 80 of 109 which was recovered from his person. It has also been established that during talks of accused Hari Chand with accused Subhash Narain, accused Subhash Narain agreed to accept bribe amount which was to be accepted from the complainant. So, the ocular testimony of witnesses and documentary evidence duly proved the case of prosecution. There is only one view that points towards the guilt of accused persons. Therefore, the accused cannot get any help from the judgments relied upon on this point.
105 From the totality of evidence discussed above, the prosecution has successfully established beyond reasonable doubt that all the accused persons, namely, Hari Chand, Sanjay Kumar Singh and Subhash Narain criminally conspired with each other in demanding, accepting or agreeing to accept the bribe money from the complainant. Consequently, the charge under Section 120B IPC stands proved against all the accused persons.
Sanction 106 To prove the sanction under section 19 of the P.C. Act, prosecution has examined PW8 Ms. Vandana K. Jain who accorded sanction for prosecution of accused Hari Chand and PW9 Sh. Praveen Jain who accorded sanction for prosecution of accused AC No.19/2008 CBI Vs. Hari Chand etc. Page 81 of 109 Sanjay Kumar Singh.
107 PW8 Ms. Vandana K. Jain has deposed that during the year 2008, she was posted as Additional Commissioner (P&V), Office of Commissioner of Central Excise, Delhi. She was the disciplinary authority and competent to remove an officer to the rank of Inspector. She proved the sanction order dated 12.08.2008 as Ex.PW8/A for prosecution of accused Hari Chand. She has further deposed that she had granted sanction for prosecution of accused Hari Chand after going through all the documents which were placed in the file. After due application of mind, she accorded the sanction. 108 During crossexamination, PW8 has stated that before according sanction, she had examined the entire file. On perusal of record, she came to know that initially demand of Rs.10 lacs was made but subsequently, it was only 2.5 lacs which could be arranged for payment. She denied that there was no material to justify the finding arrived at by her regarding demand of Rs.10 lacs and Rs.2.5 lacs. She was aware of the post held by accused Hari Chand at the time of according sanction. She admitted that accused Hari Chand as an Inspector had no link or authority vis a vis on going proceedings initiated by Central Excise, Anti Evasion Cell. She AC No.19/2008 CBI Vs. Hari Chand etc. Page 82 of 109 clarified that Additional Commissioner, Anti Evasion wrote letters to Divisional Assistant Commissioner to carry out inspection of the factory and also to verify the monthly returns from 2003 and also to verify raw materials on which cenvat credit had been availed by M/s J.V. Industries. For this verification, Divisional Assistant Commissioner had directed Hari Chand and S.K. Singh, Superintendent to carry out necessary verification. She further stated that she did not examine the IO of the case to ascertain the truthfulness of the allegations. In this case, she had not granted sanction u/s 197 Cr.P.C. She denied that she was not the competent authority to grant sanction against accused Hari Chand. Though she admitted that draft for sanction was sent by CBI, but she clarified that she accorded sanction on her own satisfaction. She admitted that one Mr. Jamwal was working in her office and he was of the rank of Inspector. She denied that sanction order was prepared by Mr. Jamwal and she just signed the same.
109 PW9 Sh. Praveen Jain has proved the sanction against accused Sanjay Kumar Singh. He has deposed that during the year 2008, he was the Commissioner of Central Excise, Delhi and was competent to appoint or take any disciplinary action including AC No.19/2008 CBI Vs. Hari Chand etc. Page 83 of 109 removal from service an officer of the rank of Superintendent. He had issued prosecution sanction order in respect of accused Sanjay Kumar Singh, Superintendent, Central Excise on 12.08.2008. He proved the sanction order as Ex.PW9/A. He further deposed that before granting sanction, he had gone through the entire case material placed before him by his subordinates including recommendation of CBI seeking sanction for prosecution. It was his independent decision to grant the sanction.
110 During crossexamination, witness PW9 has stated that he did not remember the date when file was received from CBI or when it was put up before him. The file was put up before him by Addl. Commissioner (P&V) Ms. Vandana K. Jain. He denied that Ms. Vandana K. Jain prepared the prosecution sanction order Ex.PW9/A and he merely signed it. He stated that since considerable time had elapsed, he could not recall exactly what documents/articles were placed before him for granting the sanction. He denied that he granted the sanction order merely on the basis of draft sanction order sent by CBI. He denied that he was not the competent authority to grant sanction. He further denied that he accorded sanction in a mechanical manner without application of mind. He denied that no AC No.19/2008 CBI Vs. Hari Chand etc. Page 84 of 109 document or articles were placed before him. He further denied that documents or articles referred by him in order Ex.PW9/A were not perused by him. He further denied that sanction order Ex.PW9/A was issued at the instance of CBI.
111 No sanction for prosecution of accused Subhash Narain was obtained as he already ceased to be in service. 112 Section 19 of the P.C. Act provides protection to an accused who happened to be public servant at the time of taking the cognizance by the court. The purpose of sanction under section 19 of the Act to have the approval of the competent authority to remove the accused from the office, is just because that at the time of taking the cognizance, he was a public servant.
113 It has been argued by ld. counsel for accused Hari Chand that the sanctioning authority was having draft sanction order before according sanction, which invalidates the sanction accorded. There is no force in this contention of ld. defence counsel. I have gone through the ratio of judgment in case of Amar Lal Vs. State of Punjab 2009 Cri.L.J. (NOC) 1246 (P&H) in which it was observed that mere fact that witness has stated that draft sanction was received from Vigilance Department and sanction letter was issued, does not AC No.19/2008 CBI Vs. Hari Chand etc. Page 85 of 109 invalidate sanction. In the present case, it has been stated by PW8 & PW9 that after due application of mind, they accorded sanction. PW8 has specifically stated that she had accorded sanction on her own satisfaction. Therefore, there is no force in the contention of the Ld. defence counsel that having draft sanction order invalidate the sanction.
114 In the sanction orders Ex.PW8/A and Ex.PW9/A, it has been mentioned that sanctioning authorities perused all the documents provided by the CBI such as complaint, FIR, statement of witnesses, transcriptions, CFSL report and other documents, before according sanction. In the present case, sanction orders have been duly proved on record by PW8 and PW9 for prosecution of accused Hari Chand and Sanjay Kumar Singh. In a judgment of our own Hon'ble High Court in case titled Ram Chander Versus State (Govt. of NCT of Delhi) 2009 Cri.L.J. 4058, it was observed that once the sanctioning authority has been produced in the court, unless there is anything brought on record which may vitiate the sanction order, the sanction order has to be taken as proved. Therefore, in my considered opinion, PW8 & PW9 were competent to accord sanction for prosecution of accused Hari Chand and Sanjay Kumar Singh and AC No.19/2008 CBI Vs. Hari Chand etc. Page 86 of 109 sanction orders do not suffer from any illegality and are valid one. 115 It has been argued by the Ld. counsel for accused Hari Chand that apart from sanction under section 19 of the P.C. Act, no sanction has been granted under section 197 Cr.P.C. which invalidates the sanction accorded. It is submitted that witness PW8 has categorically admitted that sanction under section 197 Cr.P.C. was not granted.
116 In support of the contentions, ld. counsel has relied upon authority in case of R. Balakrishna Pillai Vs. State of Kerala and Another (1996) 1 SCC 478 in which the criminal conspiracy alleged against the appellant was that he sold electricity to an industry in the State of Karnataka without the consent of the Government of Kerala. It was observed that the appellant did that in the discharge of his duties as a Minister. It was held that the charge would attract the protection of Section 197 (1) of Cr.P.C. as the act alleged was directly and reasonably connected with his official duty as a Minister. 117 Next judgment relied upon is in case of N. Bhargavan Pillai (dead) by LRs. and Another Vs. State of Kerala (2004) 13 SCC 217 in which it was observed that no court shall take cognizance of such offence except with the previous sanction when AC No.19/2008 CBI Vs. Hari Chand etc. Page 87 of 109 the offence alleged to have been committed by a public servant was in the discharge of his official duty. On similar point, authority in case of Rakesh Kumar Mishra Vs. State of Bihar and others (2006) 1SCC 557 has also been relied upon. On similar point, ld. counsel for accused Sanjay Kumar Singh has relied upon judgments in case of Mansukhlal Vithaldas Chauhan Vs. State of Gujarat (1997) 7 SCC 622, K.C. Singh Vs. CBI (Crl. A. No.976/2010, DHC) and State of Karnataka Vs. Ameer Jan 2008 Cri.L.J. 347.
118 On the other hand, Ld. PP for CBI has argued that the offence committed by the accused Hari Chand and Sanjay Kumar Singh are the demand and acceptance of illegal gratification covered under section 7 and 13(2) read with 13(1)(d) of the P.C. Act and for such offences, no sanction under section 197 Cr.P.C. is required as such offences cannot be said to have been committed by public servants in discharge of his official duty. It is vehemently argued that the accused has not been prosecuted for the violation of discharge of official duty, rather they have demanded bribe not to discharge the official function which they were required to do under the law. In support of his contention, he has relied upon authority in case of Harihar Prasad Etc. Vs. State of Bihar 1972 (3) SCC 89 in which it AC No.19/2008 CBI Vs. Hari Chand etc. Page 88 of 109 was observed that the offence of criminal conspiracy u/s 120B read with section 409 IPC and section 5(2) of the P.C. Act, cannot be said to be of the nature mentioned in section 197 Cr.P.C. It was further observed that it is no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct.
119 In the present case, neither the prosecution nor the defence side has claimed that the act done for which accused persons are being prosecuted is the part of discharge of official function. As per the prosecution, act done by the accused is being public servant but not as a part of discharge of official duty.
120 It would be pertinent to mention that Prevention of Corruption Act, 1988 is a complete Code and it itself deals with regard to required sanction. No prosecution can taken place without the sanction under section 19 of the P.C. Act. It would further be pertinent to mention that there had been provision of Section 6A of the Delhi Special Police Establishment Act as per which advance permission/sanction was required to investigate the matter against the public servants, but the Hon'ble Apex Court in its historical decision delivered by a Constitutional Bench in case of Dr. Subramanian AC No.19/2008 CBI Vs. Hari Chand etc. Page 89 of 109 Swamy Vs. Director, Central Bureau of Investigation & Anr. (Writ Petition (Civil) No.38/1997) strike down the provision of Section 6A. It has been held that Section 6A(1) of the Delhi Special Police Establishment Act which requires approval of the Central Government to conduct any inquiry or investigation into any offence alleged to have been committed under the P.C. Act, 1988 where such allegations relates to the employees of the Central Government, is violative of Article 14 of the Constitution. It was also observed that where there are allegations of an offence under the P.C. Act against a public servant, whether high or low, whether decisionmaker or not, an independent investigation into such allegations is of utmost importance and unearthing the truth is the goal.
121 It has been observed by Hon'ble Apex Court that no sanction for inquiry or investigation is necessary where a government servant is involved for commission of offence under the P.C. Act. In the present case, it is alleged against the accused persons that they have entered into a criminal conspiracy to demand and accept bribe from the complainant. The evidence brought on record and as discussed above, established the allegations against the accused persons that they either demanded or agreed to accept the bribe from AC No.19/2008 CBI Vs. Hari Chand etc. Page 90 of 109 the complainant which cannot be said to be an act done in discharge of official duty. So, as observed by Hon'ble Apex Court in Dr. Subramanian Swamy's case (supra), there is no necessity to obtain sanction where the government servant is accused of offence under the Prevention of Corruption Act. Thus, it is made clear that no previous sanction for the offences committed under the Prevention of Corruption Act, particularly under section 7 is required before investigation of the matter and the cognizance can be taken by the Court on according of sanction under section 19 of the P.C. Act without any other sanction. In the facts and circumstances, the authorities relied upon by accused in case of R. Balakrishna Pillai (supra), N. Bhargavan Pillai (supra), Rakesh Kumar Mishra (supra), Mansukhlal Vithaldas Chauhan (supra), K.C. Singh (supra) and Ameer Jan (supra) does not render any help as the same are not attracted in view of judgment in case of Dr. Subramanian Swamy (supra).
Defence 122 The defence taken by accused Hari Chand is that there are contradictions regarding giving of preappointed signal about the transaction of bribe. Ld. defence counsel has argued that AC No.19/2008 CBI Vs. Hari Chand etc. Page 91 of 109 shadow witness has stated that after transaction of bribe, he gave signal to Insp. Rajesh Chahal by making telephone, but his statement has been contradicted by DW1 who stated that no official mobile phone was issued to Insp. Rajesh Chahal.
123 DW1 Rajbir Singh, UDCcumCashier, ACB, CBI has deposed that during the period 31.12.2007 to 01.10.2008, no official mobile phone was issued from CBI office to Inspector Rajesh Chahal.
124 Defence witness DW1 has been examined by accused to probabilise their defence that Insp. Rajesh Chahal had no official mobile phone at the time of laying trap on which the alleged call of the shadow witness was received. Though the testimony of DW1 shows that no mobile phone from the office was issued to Insp. Rajesh Chahal, but it cannot be said with certainty that he could not have any other mobile phone at that time. There is no force in this contention of the accused.
125 Accused has also examined defence witness DW3 Rakesh Kumar who had produced the visitors register for the period December, 2007 to 31.01.2008 maintained in CBI office and proved the relevant entries as Ex.DW3/A. This witness has been examined AC No.19/2008 CBI Vs. Hari Chand etc. Page 92 of 109 by accused to probabilise defence that complainant never went to CBI office on 31.12.2007 or on 01.10.2008 and if he had gone there, there must be entries in this regard.
126 Though DW3 has been examined and if it is believed that there is no entry in the visitors register of CBI, then also the case of prosecution cannot be discarded merely on this technicality. When it has convincingly been established that demand of bribe was made by the accused persons and during trap, acceptance and recovery has been proved, these technicalities do not come in the way. 127 Accused Hari Chand has also taken the defence that on the day of alleged trap, he had gone to Cross River Mall to deliver sarees to his sisterinlaw. It is submitted that on the request of the complainant that he had to hand over some documents, he met the complainant near Cross River Mall where he has been falsely implicated in the false allegations of the present case. 128 To probabilise his defence, accused Hari Chand has examined DW3 Ritu Kumari who deposed that accused Hari Chand is her brotherinlaw. She was residing at 25A/114, Mahavir Block, Gali No.6, Shahdara, Delhi On 31.12.2007, she made call to Vimlesh, wife of accused Hari Chand to send sarees at cross river AC No.19/2008 CBI Vs. Hari Chand etc. Page 93 of 109 mall on 01.10.2008 as prospective groom was supposed to visit their house on 02.01.2008. She was told that Hari Chand would hand over sarees on 01.01.2008 in the morning while going to his office. She waited uptill 10.30 a.m., but Hari Chand did not turn up then she made call to her sister. She did not get any information till evening. In the evening, they came to know that while Hari Chand was coming to her, CBI people took him for making certain inquiries. 129 The testimony of this defence witness is not reliable inasmuch as accused Hari Chand has not stated anything as such during entire trial nor in his statement under section 313 Cr.P.C. In his statement under section 313 Cr.P.C., accused Hari Chand has stated that on 01.01.2008, he had to meet his sister in law in connection with some personal work. He has not specified the purpose for which he had to meet DW4 on that day. The defence taken that he had to deliver sarees to his sister in law appears to be an after thought. Even otherwise, after apprehension of accused Hari Chand, no such saree was found in his possession to substantiate his plea that he had actually gone there to deliver sarees to his sister in law.
130 As discussed above, the accused has failed to AC No.19/2008 CBI Vs. Hari Chand etc. Page 94 of 109 probabilise his defence that he was present at the spot for delivering sarees to his sisterinlaw. Even otherwise, it has been proved that at the spot, a trap was laid in which he demanded and accepted bribe from the complainant and the tainted GC notes were recovered from him.
Presumption u/s 20 of P.C. Act 131 Section 20 of the P.C. Act provides that where in any trial of an offence punishable u/s 7 or section 11 or 13(1)(a) or (b), it is proved that accused has accepted or obtained or has agreed to accept or attempted to obtain for himself or for any other person, any gratification or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as a motive or reward which he knows to be inadequate.
132 As discussed in the earlier part of the judgment, it has duly been established against accused Hari Chand and Sanjay Kumar Singh that they had demanded and agreed to accept gratification in the form of bribe of Rs.10 lacs other than legal remuneration from the complainant. It has also been established that accused Subhash AC No.19/2008 CBI Vs. Hari Chand etc. Page 95 of 109 Narain also agreed to accept gratification from the complainant which was to be obtained from the complainant. Even the acceptance of bribe money by accused Hari Chand and its recovery from him has also been duly proved.
133 The accused has adduced the defence evidence, but has failed to rebut the presumption provided under section 20 of the P.C. Act. On the other hand, his presence at the spot is proved from his own defence. Since it has been duly proved that all the accused persons accepted or agreed to accept illegal gratification from the complainant, presumption as provided under section 20 of the P.C. Act is drawn against them as they failed to rebut the presumption. Conclusion 134 The prosecution has successfully established that there was criminal conspiracy between all the three accused persons to demand and accept bribe from the complainant. The prosecution has established that there was any prior meeting of minds of accused persons in demanding and accepting bribe from the complainant. The prosecution has proved the criminal conspiracy between accused persons object of which was to demand and accept bribe money from the complainant for giving a favorable report with regard to raid AC No.19/2008 CBI Vs. Hari Chand etc. Page 96 of 109 conducted by Anti Evasion Cell of Central Excise. 135 The prosecution has successfully established the demand of bribe by accused Hari Chand and Sanjay Kumar Singh from the complainant. It has duly been established that both these accused met the complainant in their office at Laxmi Nagar and demanded bribe of Rs.10 lacs from him for giving a favorable report in respect of factory of the complainant. The complainant has specifically stated that he met both these accused in their office who demanded bribe of Rs.10 lacs from him.
136 During verification of demand of bribe, accused Hari Chand and Sanjay Kumar came to the factory premises of the complainant where they had again demanded bribe of Rs.10 lacs from the complainant by gesture of fingers. The complainant has specifically deposed in this regard and even the pretrap verification memo corroborates the case of the prosecution.
137 Demand of bribe by accused Hari Chand at the time of laying of trap has also been established. It is duly established that during laying of trap, accused Hari Chand and Sanjay Kumar Singh met the complainant in front of Cross River Mall and they had a conversation with the complainant with regard to factory of the AC No.19/2008 CBI Vs. Hari Chand etc. Page 97 of 109 complainant. It has further been established that thereafter accused Hari Chand sat in the car of the complainant and then demanded bribe from him. Thereafter, accused Hari Chand accepted illegal gratification of Rs.2.5 lacs from the complainant which was recovered from his person. The independent witnesses and the documentary evidence also corroborated the case of the prosecution. 138 The report of the wash expert also established the presence of phenolphthalein powder in the hand washes, coat wash and shirt wash of accused Hari Chand. It proved beyond reasonable doubt that accused Hari Chand accepted illegal gratification from the complainant and it was recovered from his person. It has also been established that both accused Hari Chand and Sanjay Kumar Singh were apprehended at the spot. After apprehension of accused Hari Chand, he was asked to talk on telephone with accused Subhash Narain and during the said talks, accused Subhash Narain also agreed to accept the bribe amount which was to be taken from the complainant.
139 The report of voice expert also corroborates the case of prosecution that all the three accused persons either demanded bribe from the complainant or agreed to accept the bribe. As per AC No.19/2008 CBI Vs. Hari Chand etc. Page 98 of 109 report of voice expert, the specimen voice of accused persons matched with their voices contained in questioned cassettes which were recorded during pretrap verification, during laying of trap and after apprehension of accused Hari Chand.
140 The charges against the accused persons have duly been established beyond reasonable doubt that they criminally conspired with each other in demanding bribe from the complainant; demanding bribe of Rs.10 lacs from the complainant or agreeing to accept the bribe; acceptance of bribe of Rs.2.5 lacs by accused Hari Chand and its recovery from his person. Thus, it is established that all the accused persons being public servants misused their official position and committed the offence of criminal misconduct by adopting corrupt means in demanding or agreeing to accept illegal gratification from the complainant.
141 The defence evidence has been adduced by accused to rebut the presumption u/s 20 of the P.C. Act. But the accused have failed to rebut the presumption, rather it has been duly proved that all the accused persons demanded, accepted or agreed to accept illegal gratification from the complainant, therefore, presumption as provided under section 20 of the P.C. Act is drawn against them. AC No.19/2008 CBI Vs. Hari Chand etc. Page 99 of 109 142 Consequently, in view of above discussion, all the accused persons namely, Hari Chand, Sanjay Kumar Singh and Subhash Narain are hereby held guilty of the charges framed against them under Section 120B IPC, under section 7 of the P.C. Act and under section 13(2) read with 13(1)(d) of the P.C. Act. They are accordingly convicted for the said offences.
143 The case property be confiscated to the State and the recovered bribe amount of Rs.2.5 lacs be released to the complainant.
Announced in the open Court ( P.S. TEJI )
Dated: 22.05.2014 District & Sessions Judge(East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.19/2008 CBI Vs. Hari Chand etc. Page 100 of 109
IN THE COURT OF SHRI P.S. TEJI : DISTRICT & SESSIONS JUDGE (EAST) : SPECIAL JUDGE (CBI), KARKARDOOMA COURTS, DELHI AC No.19/2008 Unique Case ID No.02402R0651282008 FIR No.RC DAI2008A0001/ CBI/ACB/New Delhi Under Sec. 120B IPC r/w Section 7 and 13(2) r/w Sec. 13(1)(d) of PC Act.
CBI Versus (1) Hari Chand
S/o Sh. Tota Ram
R/o K6, Gali No.20A, Gangotari
Vihar, West Gonda, Delhi53.
(2) Sanjay Kumar Singh
S/o Sh. Dharam Singh
R/o 46, Samachar Appt.,
Mayur Vihar PhI, Delhi91.
(3) Subhash Narain
S/o Late Sh. Parmanand
R/o 44, Priya Enclave, Delhi92.
ORDER ON SENTENCE
Vide judgment dated 22.05.2014, all the three
convicts, namely, Hari Chand, Sanjay Kumar Singh and Subhash AC No.19/2008 CBI Vs. Hari Chand etc. Page 101 of 109 Narain have been held guilty and convicted for commission of offences punishable under Section 120B IPC, under section 7 of the P.C. Act and under section 13(2) read with 13(1)(d) of the P.C. Act. 2 I have heard Sh. Thakuri, ld. PP for the CBI; Sh.
Vishal Gosain, ld. counsel for convict Hari Chand; Sh. H.K. Sharma, ld. counsel for convict Sanjay Kumar Singh and Ms. Seema Gulati, ld. counsel for convict Subhash Narain on the quantum of sentence. 3 The learned PP for the CBI has submitted that at the time of trap, convict Hari Chand was posted as Inspector, convict Sanjay Kumar Singh was posted as Superintendent and accused Subhash Narain was posted as Assistant Commissioner, in Central Excise. All the convicts have been held guilty for hatching a criminal conspiracy in demanding bribe from the complainant. He has further submitted that the convicts have also been held guilty for demanding and accepting bribe from the complainant. It has duly been established that the convicts Hari Chand and Sanjay Kumar Singh were apprehended and arrested at the spot and bribe money was recovered from the person of convict Hari Chand. He has further argued that convicts being public servants misused their official position by demanding Rs.10,00,000/ and accepting bribe of Rs. AC No.19/2008 CBI Vs. Hari Chand etc. Page 102 of 109 2,50,000/ for giving favorable report in respect of the raid conduct at the factory premises of the complainant. He has further submitted that the convicts may be awarded maximum punishment prescribed under the law.
4 In support of his contentions, ld. PP has relied upon judgment in case of State of Madhya Pradesh Vs. Shambhu Dayal Nagar AIR 2007 SC 163 in which it was observed that the corruption by public servants has become a gigantic problem. It has spread everywhere. No facet of public activity has been left unaffected by the stink of corruption. It has deep and pervasive impact on the functioning of the entire country. Large scale corruption retards the national building activities and everyone has to suffer on that count. Ld. PP has also relied upon judgment in case of Narendra Champaklal Trivedi Vs. State of Gujarat AIR 2012 SC 2263 in which it was observed that it should be paramountly borne in mind that corruption at any level does not deserve either sympathy or leniency. The corruption corrodes the spine of a nation and in the ultimate eventuality makes the economy sterile. 5 The ld. counsel for convict Hari Chand has submitted that the convict is the sole bread earner of his family. Convict is AC No.19/2008 CBI Vs. Hari Chand etc. Page 103 of 109 having wife and two minor children in the family. He is also having old aged father in the family. It is further submitted that entire family of the convict is dependent upon him and there is nobody to look after them except the convict. It is further submitted that there is no previous conviction of convict in any other case. It is submitted that a keeping in view the familial circumstances, he may be awarded minimum sentence provided under the law.
6 In support of the contentions raised, ld. counsel for convict Hari Chand has relied upon judgment in case of Thangaraju Vs. State 2002 Cri.L.J. 189 in which the trial court imposed S.I. for one year and fine of Rs.500/, in default to undergo S.I. for three months for offences under ection 161 IPC and section 5(1)(d) read with 5(2) of the P.C. Act. Keeping in view the fact that the appellant had been facing trial since 1988 and he would lose his job on imposition of conviction, the Hon'ble Madras High Court modified the sentence of the appellant to simple imprisonment for six months and fine of Rs.500/, in default to undergo S.I. for three months. Next judgment relied upon is in case of Joginder Pal Dhiman Vs. Union of India 2002 Cri.L.J. 677 in which the Hon'ble Himachal Pradesh High Court reduced the sentence of R.I. for two years to one year R.I. AC No.19/2008 CBI Vs. Hari Chand etc. Page 104 of 109 The sentence of R.I. for two years and six months for offence u/s 13(2) of the P.C. Act was reduced to R.I. for one year. 7 On quantum of sentence, ld. counsel for convict Sanjay Kumar Singh has submitted that apart from his family, there are old aged father and mother of the convict in the family to look after. It is further submitted that there is no previous conviction of convict in any other case. Entire family of the convict is dependent upon him and it is prayed that minimum sentence may be awarded to the convict as provided under the law.
8 On behalf of convict Subhash Narain, it is submitted that he is aged about 65 years and having various ailments. He has already retired from the service. Convict is having old aged wife in the family to look after. Wife of the convict is fully dependent upon him and there is nobody in the family to look after her. It is submitted that keeping in view the age and other family circumstances of the convict, he may be awarded minimum sentence. 9 In support of the contentions raised, ld. counsel has relied upon judgment in case of Satpal Kapoor Vs. State of Punjab AIR 1996 SC 107 in which keeping in view the age and ailments of the appellant, the sentence was reduced to four months simple AC No.19/2008 CBI Vs. Hari Chand etc. Page 105 of 109 imprisonment. Next judgment relied upon is in case of State of Andhra Pradesh Vs. V. Vasudeva Rao 2003 (9) Scale 620 in which considering the age of the 75 years of accused, sentence of two years imprisonment was reduced to minimum of one year.
10 Ld. counsel has also relied upon judgment in case of State of Madhya Pradesh Vs. Babulal AIR 2008 SC 82 in which it was observed that sometimes it is the correctional need that justifies lesser sentence. Sentencing is a delicate task which requires skill, talent and consideration of several factors such as nature of offence, circumstances extenuating or aggravating in which it was committed, prior criminal record of the offender, age and background of the criminal with reference to education, home life, social adjustment, emotional and mental condition, prospects of his reformation and rehabilitation etc. Next judgment relied upon is in case of M.C. Gupta Vs. Central Bureau of Investigation, Dehradun MANU/SC/0699/2012 in which keeping in view the age of 70 years of the appellant; appellant being suffering from ailments and crime had taken place about 24 years ago, the sentence of two years RI for offence u/s 5(2) rad with 5(1)(c) of the Act was reduced to one year's R.I. AC No.19/2008 CBI Vs. Hari Chand etc. Page 106 of 109 11 I have heard submissions of the parties. It is important to note that corruption by public servants has become a gigantic problem. It has spread everywhere and no facet of public activity has been left unaffected by the sting of corruption. It has deep and pervasive impact on the functioning of the entire country and large scale corruption retards the national building activities and everyone has to suffer on that count. Corruption is corroding our country like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does his duty diligently, truthfully, honestly and devotes himself assiduously to the performance of his duty to the post. 12 Keeping in view the circumstances under which the offences were committed, in my considered opinion, the convicts do not get any help from the judgments relied upon by them. Consequently, the convicts are sentenced as under :
(i)Convict Hari Chand is awarded sentence of four years rigorous imprisonment with fine of Rs.1,00,000/ for the offence punishable under section 120B IPC. In default of payment of fine, he shall further undergo SI for six months.
Convict is awarded sentence of four years rigorous AC No.19/2008 CBI Vs. Hari Chand etc. Page 107 of 109 imprisonment with fine of Rs.1,00,000/ for the offence punishable under section 7 of the P.C. Act. In default of payment of fine, he shall further undergo SI for six months. Convict is also awarded sentence of three years rigorous imprisonment with fine of Rs.50,000/ for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, he shall further undergo simple imprisonment for six months.
(ii)Convict Sanjay Kumar Singh is awarded sentence of four years rigorous imprisonment with fine of Rs.1,00,000/ for the offence punishable under section 120B IPC. In default of payment of fine, he shall further undergo SI for six months. Convict is awarded sentence of four years rigorous imprisonment with fine of Rs.1,00,000/ for the offence punishable under section 7 of the P.C. Act. In default of payment of fine, he shall further undergo SI for six months. Convict is also awarded sentence of three years rigorous imprisonment with fine of Rs.50,000/ for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, he shall further undergo simple imprisonment for six months.
(iii)Convict Subhash Narain is awarded sentence of four years rigorous imprisonment with fine of Rs.1,00,000/ for the offence punishable under section 120B IPC. In default of payment of fine, he shall further undergo SI for six months. Convict is awarded sentence of four years rigorous imprisonment with fine of Rs.1,00,000/ for the offence punishable under section 7 of the P.C. Act. In default of AC No.19/2008 CBI Vs. Hari Chand etc. Page 108 of 109 payment of fine, he shall further undergo SI for six months. Convict is also awarded sentence of three years rigorous imprisonment with fine of Rs.50,000/ for the offence punishable under Section 13(2) read with Section 13(1)(d) of P.C. In default of payment of fine, he shall further undergo simple imprisonment for six months.
13 All the sentences of the convicts shall run concurrently. The convicts shall be entitled for the benefit of the provisions of Section 428 Cr.PC. Copies of the judgment and order on sentence be given free of cost to the convicts.
File be consigned to record room.
Announced in the open Court ( P.S. TEJI )
Dated: 23.05.2014 District & Sessions Judge(East)
Special Judge (CBI)
Karkardooma Courts : Delhi
AC No.19/2008 CBI Vs. Hari Chand etc. Page 109 of 109