Delhi District Court
Cc No. 02/16 Cbi vs . Naresh Kumar Arya & Anr. Page No. 1 Of 63 on 13 April, 2017
IN THE COURT OF SH. SANJAY GARG-I:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI
CC No. 02/2016
Central Bureau of Investigation (CBI)
Versus
1. Naresh Kumar Arya,
S/o Late Sh. Satya Dev Arya,
R/o Plot No. 6, Site-11, West Patel Nagar,
New Delhi
2. Virender Kumar Singh,
S/o Sh. Hukum Chand,
R/o H.No. 356, Vill & PO Bakhtawarpur,
Delhi - 110036 Accused
Case arising out of: FIR No. RC 36(A)/2010-DLI
Date of FIR : 20.08.2010
Date of Institution : 04.07.2011
Date of conclusion of Final
Arguments : 06.04.2017
Date of Judgment : 13.04.2017
JUDGMENT
FACTS 1.0. This case was registered on 20.08.2010 on the written complaint of Sh. Neeraj Yadav (PW-12) wherein he has mentioned that he is owner of 2 nd and 3rd Floor of Building No. 11-B, Rajendra Park, Rajendra Nagar, New Delhi. V.K. Singh, J.E. (Building), Karol Bagh Zone, MCD (A-2) had visited the premises of complainant and told him that he has a court order CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 1 of 63 to seal his premises and if he wanted the sealing to be stopped, he should pay him and his Executive Engineer an amount of ₹ 15 lakhs as bribe. When he declined to pay, A-2 sealed the 3 rd floor of the said building on 13.08.2010 and again stated that if the complainant wanted favourable action regarding 2 nd floor then he should pay a bribe of ₹ 15 lakhs or face sealing and subsequent demolition. On 16.08.2010 he further asked him to contact Naresh Kumar Arya an Architect (A-1) having his office in Karol Bagh for settling the issue. Complainant contacted A-1 on 16.08.2010. He confirmed the demand of ₹ 15 lakhs as bribe and A-1 again contacted him and told him that he had spoken to E.E. Chauhan and A-2 and the matter would be settled in his favour and he should come on 20.08.2010 before lunch with ₹ 5 lakhs as first installment of the bribe money.
1.1. Investigation revealed that PW-12 is the owner and also having physical possession of 2nd and 3rd Floor of Building No. 11-B, Rajendra Park, Rajendra Nagar, New Delhi. A-2 was posted in ward no. 149 in which Building no. 11-B, Rajender Park, New Delhi is situated. He was incharge of the area alongwith Sh. Kaptan Singh, A.E. (B). His duty was to check unauthorised construction in the area, their sealing and demolition. There were orders of Dy. Commissioner, MCD dated 27.07.2010 for the sealing of 2nd and 3rd floor of the building which was passed in compliance to the Appellant Tribunal directions in appeals filed by Sh. Surojit Banerjee. A-2 told him that he has court orders to seal the building but he did not show any orders to him. He asked the complainant (PW-12) to pay CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 2 of 63 him and his Executive Engineer a bribe of ₹ 15 lakhs for favourable action in the matter of sealing of the building. When complainant declined to pay, A-2 sealed the 3 rd floor of the said building on 13.08.2010 and again repeated his demanded. On 16.08.2010 A-2 had asked the complainant to contact A-1 having his office at Karol Bagh for further settling the issue. Complainant (PW-12) had contacted A-1 on 16.08.2010 who also acted in league with the demand. Thereafter, during meeting with the complainant on 18.08.2010 A-1 again confirmed the demand of ₹ 15 lakhs and assured to settle the issue with MCD officials the next day i.e. 19.08.2010. A-1 had informed complainant that his wife is sick. A-1 had contacted complainant on telephone and assured him that he had a talk with A-2 and Executive Engineer S.K. Chauhan of MCD and the matter of sealing would be settled favourably by the next day evening. A-1 called complainant to his office next day i.e. 20.08.2010 before lunch alongwith ₹ 5 lakhs as first installment of the total demanded bribe of ₹ 15 lakhs.
1.2. In order to verify the allegations made against accused persons and Executive Engineer, MCD, verification was conducted by CBI in the presence of an independent witness Sh. Rohit Gupta(PW-15), Officer Bank of Baroda, Sansad Marg. Complainant (PW-12) produced a DVR make CENIX and showed the recorded conversation. This DVR was played before the independent witness which confirmed the demand on part of A-2. This DVR was sealed by CBI and marked as Q-1. Thereafter, to fix an appointment for meeting, complainant CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 3 of 63 contacted from his mobile with A-1. A-1 had asked complainant to come to his office within half an hour. This conversation was heard by all present through the inbuilt speaker of the mobile phone and was also recorded in official DVR make Sony. Thereafter, complainant (PW-12) alongwith independent witness and SI Nikhil Malhotra went to the office of A-1 at 7061/1, Street No. 5, Rameshwari, Nehru Nagar, Karol Bagh, New Delhi. On reaching the spot, the DVR was put in switch on mode and given to the complainant to put it inside his vest. Then PW-12 went inside the office of A-1 and after sometime he returned with DVR. He informed that A-1 was demanding bribe on behalf of the public servants and asked him to come with ₹ 5 - 7 lakhs. The DVR was played and conversation was heard which confirmed the version of the complainant regarding the demand of bribe by A-1. After verification of the complaint case was registered against A-1 u/s 8 of P.C. Act, 1988 and a trap team comprising Sh. S.K. Khullar, Inspector / TLO and other CBI officials was constituted. Independent witness Sh. Rohit Gupta and Sh. Attar Singh Sr. Executive Assistant, MSTC Ltd. were also joined. All the team members assembled at CBI Office were briefed about the purpose of assembly. They were briefed about the complaint. Thereafter, complainant produced a sum of ₹ 1 lakh comprising of 200 GC notes of ₹ 500/- denomination each as part payment of first installment of ₹ 5 - 7 lakhs out of the total demand. Inspector Vikas Pathak gave a demonstration to all the members present to explain the purpose and significance of use of phenolphthalein powder and its chemical CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 4 of 63 reaction with sodium carbonate and water solution. All the GC notes were treated with phenolphthalein powder. Personal search of the complainant was conducted. The tainted bribe amount was put in front pocket of his bag. Introductory voice of independent witnesses was recorded in the blank DVR. DVR was handed over to PW-12 with the direction to switch on the same after reaching the spot. Sh. Rohit Gupta, independent witness was asked to act as a shadow witness. He was also directed to give signal by rubbing his face by his both hands after the transaction is over. They were also directed to give calls from their mobile phones to the mobile phone of TLO or Inspector Rajesh Chahal immediately after the transaction of bribe, in case they are not able to see the TLO or other team members.
1.3. The handing over proceedings were conducted. After completion of the handing over proceedings, the CBI trap team proceeded towards the office of A-1 at Karol Bagh. DVR was given to complainant (PW-12) on switch on mode. Complainant alongwith shadow witness Sh. Rohit Gupta proceeded towards the office of A-1. After some conversation complainant (PW-12) took the tainted bribe mount and handed over the same to A-1 stating that this is ₹ 1 lakhs and the rest of the amount of ₹ 4 lakhs is being brought by his driver. A-1 accepted the same with his right hand and kept on the office table. A-1 asked the complainant to arrange ₹ 6 - 7 lakhs through the driver. Thereafter, complainant (PW-12) on the pretext of calling his driver made the pre-appointed signal i.e. a call to mobile of CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 5 of 63 Inspector Rajesh Chahal. On receipt of this signal, the CBI team rushed to the office of A-1. On identification by the complainant, the TLO after disclosing his identity and identity of other team members challenged A-1 for demanding and accepting a bribe amount of ₹ 1 lakh. A-1 was apprehended by catching his hands. DVR was taken from the complainant (PW-12) and was put on switched off mode. Shadow witness Sh. Rohit Gupta narrated the entire incident. The wash of right hand of A-1 was taken in a freshly prepared colourless solution of sodium carbonate which turned pink. The said pink colour wash was transferred in neat and clean glass bottle in presence of independent witnesses and was sealed and signed by independent witnesses. The tainted bribe amount was recovered from the office table of A-1. It was tallied with numbers and denomination mentioned in the handing over memo which tallied in toto. Surface wash of the table on which the bribe money was kept was also taken and it also turned pink. The said solution was also sealed.
1.4. On being questioned A-1 explained that this amount was meant to be handed over to A-2, S.K. Chauhan, EE for showing favour to the complainant with regard to the sealing / demolition of his property. A-1 was directed to contact A-2 on his mobile. A-1 called A-2 on his mobile and discussed the issue of sealing of building and having receiving of ₹ 5 lakhs. A-2 told A-1 that he will be sending a boy to the office of A-1 by 10:00 PM to collect the bribe money. Thereafter, on instructions, A-1 had conversations with Executive Engineer Sh. S.K. Chauhan and discussed with him the issue of sealing of property of CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 6 of 63 complainant and transaction of ₹ 5 lakhs. Sh. S.K. Chauhan got angry when A-1 talked of receipt of ₹ 5 lakhs for showing favour in the issue of sealing of the property and declined to talk further in this regard. The recorded conversation which took place during trap proceedings was transferred into CD which was marked as Q-3. It was sealed with CBI seal and signed by independent witnesses. A-1 was formally arrested at the spot. A rough sketch of the place of occurrence was also prepared. The specimen voice of A-1 was taken in presence of independent witnesses, which he gave voluntarily. During the course of investigation initially A-2 fled away for evading his arrest, joined investigation on directions from the Hon'ble High Court of Delhi after getting anticipatory bail. His specimen voice was taken in presence of independent witnesses, which he gave voluntarily.
1.5. The CFSL opinion regarding the washes taken during trap proceedings, confirmed the presence of phenolphthalein in the washes. Transcript of the recorded conversations was prepared. The CFSL has given opinion with regard to questioned recordings recorded during trap proceedings. Investigation revealed that A-1 in conspiracy with A-2 demanded bribe from the complainant for settling the issue of sealing of building no. 11-B, Rajendra Park, Rajendra Nagar, New Delhi. A-1 was working as a conduit to A-2 and was caught red handed while accepting bribe on behalf of A-2. The sanction for prosecution of A-2 has been accorded by competent authorities. Charge sheet is filed for commission of offences punishable u/s 120B IPC R/w Section 13(2) R/w Section 13(1)(d) of P.C. Act CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 7 of 63 and substantive offences thereof.
Charge 2.0. Both the accused persons were charged for commission of offence punishable under Section 120B IPC R/w Section 7 & Section 13(2) R/w Section 13(1)(d) of P.C. Act. A-2 was also charged for commission of offence punishable under Section 7 & 13(2) R/w Section 13(1)(d) of P.C. Act. Both pleaded not guilty and claimed trial.
Prosecution Evidence 3.0. Prosecution examined 17 witnesses to support its case.
3.1. PW-1 Sh. Samir Kumar Sharma who earlier used to work in Moser baer, Greater Noida. His SIM of Aircel bearing no. 9716777237 was lost alongwith his mobile. He has proved production cum receipt memo dated 25.10.2010 as Ex. PW-1/A (D-21) vide which he had handed over his complaint to CBI. He has also proved his complaint which he made to P.S. Kotwali regarding lost of his mobile bearing no. 9716777237 as Ex. PW- 1/B. 3.2. PW-2 Sh. Pawan Singh, Nodal Officer, Idea Cellular Ltd. has proved forwarding letter to Inspector, CBI, ACB as Ex. PW- 2/A (D-15) vide which letter Customer Application Form (CAF) of mobile no. 9891483685 and CDR of the said mobile for the period 20.08.2010 to 21.08.2010 was sent to CBI. He has also proved CAF of above mentioned mobile number in the name of Sh. Neeraj Yadav, (PW-12) as Ex. PW-2/B, certified copy of CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 8 of 63 voter ID card as Ex. PW-2/C and CDR as Ex. PW-2/D. 3.3. PW-3 Dr. N.M. Hashmi, Sr. Scientific Officer has proved his opinion / report as Ex. PW-3/A (D-18), sealed bottles as Ex. PW-3/RHW-1 & Ex. PW-3/SW, brown envelop addressed to SP, CBI, ACB as Ex. PW-3/B and cloth wrappers which are in Ex. PW-3/B as Ex. PW-3/C & Ex. PW-3/D. 3.4. PW-4 Sh. V.K. Goel, Dy. Law Officer (Vig.), EDMC has proved forwarding letter as Ex. PW-4/A vide which two copies of sanction for prosecution against A-2 were sent to DIG, ACB, CBI.
3.5. PW-5 Dr. Rajinder Singh, Director, CFSL, CBI has proved his report no. CFSL-2010/P-0604 & CFSL-2010/P-0604 (RR) as Ex. PW-5/A and various other exhibits sent by SP, ACB CBI vide letter no. DAI-2010-A-0036/DLI/12160 & DAI-2010-A- 0036/DLI/13929 dated 26.08.2010 & 28.09.2010 respectively.
3.6. PW-6 Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd. has proved forwarding letter dated 24.09.2010 to SI, CBI, ACB as Ex. PW-6/A alongwith which Customer Application Form (CAF) of mobile no. 9810008449 & 9810108449 and CDR of the said mobiles for the period 20.08.2010 to 21.08.2010 were sent to CBI. He has also proved CAF of mobile no. 9810008449 in the name of A-1 as Ex. PW-6/B, certified copy of enlargement of photograph as ID of the subscriber with bill plan, receipt dated 21.04.2015 of ₹ 1,399/-, check list as Ex. PW-6/C (Colly), certified copy of CDR of mobile no. 9810008449 as Ex. PW-6/D, CAF of mobile no. 9810108449 in the name of A-1 as Ex. PW-
CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 9 of 63 6/E, certified copy of Form No. 60, DL and voter ID card of the subscriber with bill plan as Ex. PW-6/F, CDR of mobile phone no. 9810108449 as Ex. PW-6/G and certificate u/s 65B of Indian Evidence Act as Ex. PW-6/H. 3.7. PW-7 Sh. S.K. Chauhan, Executive Engineer (Building), Karol Bagh Zone from 01.10.2009 till 03.06.2013. He has deposed that during his tenure in Building Department A-2 being J.E. was working under his supervision. During August, 2010 A-2 was working in Ward No. 149 as J.E. (Building). He has proved production cum seizure memo vide which he had handed over certain documents to CBI as Ex. PW-7/A, the office order dated 04.05.2010 as Ex. PW-7/B, office order dated 21.09.2010 as Ex. PW-7/C, office order dated 22.09.2010 as Ex. PW-7/D, note sheets in file D-22/2 as Ex. PW-7/E, order of Dy. Commissioner, Karol Bagh Zone u/s 345-A of DMC Act as Ex. PW-7/F, copy of order dated 05.03.2010 as Mark PW-7/1, file D-22/2 as Ex. PW- 7/G, note sheet in file D-22/1 as Ex. PW-7/H, two letters of A.E. (Building) as Ex. PW-7/J, file D-22/1 as Ex. PW-7/K, file D-22/3 as Ex. PW-7/L, note sheet in file D-22/3 as Ex. PW-7/M, his order dated 17.03.2010 as Ex. PW-7/N, two letters dated 12.02.2010 & 28.01.2010 as Ex. PW-7/O, file attached with file D-22/1 and D-22/3 as Ex. PW-7/P, the note sheets as Ex. PW- 7/Q, the report dated 13.08.2010 as Ex. PW-7/R and the letters in file D-22/2 as Ex. PW-7/S (Colly).
3.8. PW-8 Sh. Janak Digal was posted as Addl.
Commissioner (Establishments), MCD in the month of January, CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 10 of 63 2011, which was the competent authority to remove J.E. of MCD. He has deposed that he had given sanction for prosecution of A- 2 after having gone through the statement of witnesses, documents and other material sent by CBI. He also proved his sanction order as Ex. PW 8/1.
3.9. PW-9 Sh. Kaptan Singh was posted as A.E. (Building) in Karol Bagh Zone, MCD from 15.01.2010 to 14.01.2011. As per him as A.E. (Building) his duties were to check the unauthorised construction in the area and to take appropriate steps for action against such unauthorised constructions as per DMC Act & Building Bye Laws. He has further elaborated the procedure for taking appropriate steps against the violator / unauthorised construction. He has deposed that A-2 who was working as J.E. (Building) in Karol Bagh Zone had worked with him in Ward No.
149. 3.10. PW-10 Inspector Sanjay Kumar Khullar is Trap Laying Officer (TLO). He proved FIR as Ex. PW-10/A, verification memo as Ex. PW-10/B. He has deposed about the constitution of trap team, laying of trap and apprehension of accused. He has proved complaint Ex. PW-10/C, the file D-24 containing building plan of property no. 11B as Ex. PW-10/D. 3.11. PW-11 Inspector Nikhil Malhotra is a Verifying Officer. He has deposed about the procurement of presence of independent witness Sh. Rohit Gupta and conducting verification of the complaint of complainant Sh. Neeraj Yadav. He identified his signature on verification memo Ex. PW-10/B. He was also CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 11 of 63 member of the trap team and has deposed about joining of two independent witnesses in the trap team, conducting trap and apprehension of A-1. He proved the certificate u/s 65B of Indian Evidence Act as Ex. PW-11/A. He also identified signature of Sh. Sumit Saran, SP, CBI on the forwarding letter dated 26.08.2010 to Director, CFSL, CBI as Ex. PW-11/B & Ex. PW- 11/C. 3.12. PW-12 Sh. Neeraj Yadav is the complainant. He was declared hostile and cross examined by the Ld. PP, CBI. He has proved his complaint Ex. PW 10/C, the memorandum D-4 as Ex. PW-12/1, arrest memo of A-1 as Ex. PW-12/2, recovery memo as Ex. PW-12/3, voice identification cum transcription memo and transcription as Ex. PW-12/4 (Colly), production cum receipt memo dated 07.10.2010 as Ex. PW-12/5, self attested copy of the sale deed as Ex. PW-12/6 and his letter dated 13.08.2010 written by him to Executive Engineer, Building Department, Karol Bagh as Ex. PW-12/7.
3.13. PW-13 Sh. Shishir Malhotra, Nodal Officer, Aircel has proved certificate u/s 65B of Indian Evidence Act, forwarding letter dated 13.10.2010, CDR of Mobile No. 9716777237, certified copy of CAF and copy of DL of subscriber Sh. Sameer Kumar Sharma and cell ID list of telephone number as Ex. PW- 13/A(Colly).
3.14. PW-14 Sh. Attar Singh is an independent witness. He was declared hostile and cross examined by Ld. PP, CBI at length. Thereafter, he has supported the prosecution case to CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 12 of 63 large extent.
3.15. PW-15 Sh. Rohit Gupta, Sr. Manager, Bank of Baroda was working as officer in Bank of Baroda, Connaught Place, New Delhi in September, 2010. He is witness regarding verification proceedings and trap proceedings. He also turned hostile and was cross examined by CBI.
3.16. PW-16 Inspector Alok Kumar Singh is the IO of this case. He has proved the order dated 31.08.2010 received by him for carrying out investigation as Ex. PW-16/A. He has further proved statement of complainant which was earlier marked as Mark PW-12/A and was typed by him as Ex. PW-16/B, further statement of complainant as Ex. PW-16/C, the statement of shadow witness Sh. Rohit Gupta as Ex. PW-16/D, further statement of Sh. S.K. Chauhan as Ex. PW-16/E, statement of Sh. Sameer Kumar Sharma as Ex. PW-16/F, specimen voice recording memo regarding specimen voice of A-2 as Ex. PW- 16/F-1 (it also wrongly mentioned as Ex. PW-16/F) and forwarding letter dated 28.09.2010 sent to CFSL as Ex. PW- 16/F. 3.17. PW-17 Sh. S.K. Jain was posted as Asstt. Director, Central Government Employees Welfare Housing Organization. In September, 2010 he was called by IO in his office and there he witnessed the recording of specimen voice of A-2.
STATEMENTS OF ACCUSED PERSONS 4.0. On the basis of incriminating evidence against both the accused persons their statements were recorded u/s 313 Cr.P.C.
CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 13 of 63 4.1. A-1 denied the entire evidence against him and took the defence of false implication. He has stated that he is a Proprietor of Architectural and Structural Consultancy Firm with the name and style of Design Aid having its office at 7061/1, Street No. 5, Rameshwari Nagar, Nehru Nagar, Karol Bagh, New Delhi. Complainant had come to his office to take professional advice and estimate for regularization of his building as per Building Bye Laws. He has advised complainant to file an application for regularization after demolishing the unauthorised construction. He had also told complainant that during the process of regularization, he will inspect and identify unauthorised construction in his building, prepare necessary maps, site plans, applications and other related documents to be annexed with the regularization application. He had further told that he would also demolish unauthorised construction on 2nd and 3rd floor of the building of the complainant and thereafter repair and renovate it as per Building Bye Laws. He had also told him that he would also arrange building material and labourers and masons and also appear and present the case of the complainant before the competent authority/Executive Engineer on all dates of hearing. He had given an estimate of ₹15 lakhs to the complainant and had not demanded any bribe for any officer of MCD or co- accused and Executive Engineer or any other person. Complainant misconstrued his words and lodged a complaint against him with the CBI under misconception / confusion. He did not opt to lead any defence evidence.
4.2. A-2 also denied the entire evidence against him and tool CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 14 of 63 the defence of false implication. He took the plea that since he was the part of the team of MCD officials, who sealed the 3 rd floor of the subject building which had been purchased by the complainant and due to this reason complainant had grudge against him. In order to settle the said grudge and to over owe the officials of MCD, so that the subject building, face no action from MCD, he had lodged the false complaint against him. It is a matter of record that after lodging the complain with CBI, the complainant had sold his portion of the subject building. He opted to lead defence evidence but did not examine any defence evidence.
ARGUMENTS 5.0. Heard arguments of Sh. V.K. Dogra, Ld. PP for CBI, Sh. Ravi Bassi, Ld. Counsel for A-1 and Sh. H.K. Sharma, Ld. Counsel for A-2 and perused the written submissions and judicial precedents filed on behalf of both the accused.
5.1. Ld. PP has submitted that though complainant PW-12 has turned hostile being won over by accused persons but from his testimony the demand and acceptance of ₹ 1 lakh by A-1 stands established. It has been stated that from the transcripts of the conversation between complainant and A-1 it stands established that A-1 was conduit and he had demanded bribe amount of ₹ 15 lakhs for A-2 but subsequently while deposing before this court complainant has wrongly introduced the theory of fee demand by A-1 for getting the unauthorised construction regularized by submitting application and doing necessary CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 15 of 63 demolition and construction. It has been stated that from the transcript of CD Q-3 and statements of various CBI officials, it stands established that A-1 had talked with A-2 intimating him regarding receipt of bribe amount which proves that both A-1 & A-2 were in agreement with each other for the commission of alleged offences. It has been stated that though both the shadow witnesses PW-14 & PW-15 were cross examined by the prosecution after declaring them hostile but they have supported the major particulars of the prosecution case in their testimonies. It has been stated that even the CFSL report has established the prosecution story of recovery of bribe money from A-1 and the voice of complainant, A-1 & A-2 while negotiating the transaction of bribe. It has been stated that prosecution has been able to prove its case beyond reasonable doubt.
5.1. Ld. Counsel for A-1 has submitted that complainant PW-12 is the backbone of the prosecution case but he has not supported prosecution in any manner. It was stated that complainant has deposed that A-1 is an expert in MCD matters and to seek his help complainant had contacted him. It was stated that PW-12 has admitted that A-1 had demanded professional fee of ₹ 15 lakhs and A-2 had also demanded amount of ₹ 15 lakhs and due to this reason he got confused that A-1 is demanding bribe on behalf of A-2. It was stated that PW-12 has specifically denied the suggestion that the amount of ₹ 5 - 6 lakhs demanded by A-1 was towards of bribe amount to be paid to A-2. It was stated that PW-12 is admitted to have complained to CBI under misconception of facts. It was stated CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 16 of 63 that even TLO PW-10 has not denied the suggestion that A-1 had given estimate of ₹ 15 lakhs to complainant for regularization of his building by carrying out inspection of unauthorised construction in the building, preparation of necessary plans and documentation with MCD. It was stated that similarly the verification officer PW-11 Inspector Nikhil Malhotra has also not denied the similar suggestion. It was stated that even the IO PW-16 has not denied the suggestion that complaint was lodged by complainant under misconception and confusion. It was stated that prosecution has failed to prove demand of alleged bribe by A-1 from the complainant at the time of verification.
5.2. It was further submitted on behalf of A-1 that the independent witness Sh. Rohit Gupta (PW-15) has also supported the complainant by stating that complainant had told them that A-1 had asked for ₹ 5 - 7 lakhs for regularization of building of complainant and for this purpose A-1 had called him for meeting in his office. It was stated that PW-11, PW-12 & PW- 15 have totally disowned, discredited and nullified the allegations made by prosecution more specifically in verification memo Ex. PW-10/B. It was stated that there are various material contradictions in the statement of TLO (PW-10), verification officer (PW-11) and independent witness (PW-15) which conclusively establish that large scale tampering was done with case property and illegal investigation was carried out in this case. It was stated that as per CBI, only one brass seal was used in the present case but as per the testimonies of PW-10 & CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 17 of 63 PW-11 they used two brass seals during the proceedings individually conducted by them which points towards the illegality of the investigation conducted by the CBI. It was stated that as per CBI case complainant had approached CBI only on 20.08.2010 but as per PW-15 he was informed by bank staff on 19.08.2010 about being called in CBI in connection with this complaint. It was stated that as per CBI case after apprehension of A-1 he was made to talk on telephone with A-2 and with Executive Engineer Sh. S.K. Chauhan and there he had talked about the receiving of bribe money. It was stated that this alleged confession which CBI is using against A-1 is inadmissible in evidence being hit u/s 25 & 27 of Indian Evidence Act. It was stated that from the evidence which has come on record, it stands established that A-1 was compelled by CBI officials to call A-2 & Sh. S.K. Chauhan. It was stated that copies of audio recordings relied upon by CBI are inadmissible in evidence in view of mandate of section 65B of Indian Evidence Act. It was stated that even certificate u/s 65B of Indian Evidence Act subsequently filed by prosecution is inadmissible being vague and not carrying all the necessary particulars and same is of no help to prosecution. In support of his contentions Ld. Counsel for A-1 has relied upon the following judgments:-
1. Vijender & Ors. Vs. State of Delhi, MANU / SC / 1224 / 1997
2. Amit Pratap & Anr. Vs. State, MANU / DE / 6633 / 2011
3. Aghnoo Nagesia Vs. State of Bihar, CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 18 of 63 AIR 1966 SC 119
4. Mukesh Vs. State, MANU / DE / 0908 / 2010
5. Anvar P.V. Vs. P.K. Basheer, MANU / SC / 0834 / 2014
6. Harpal Singh @ Chhota Vs. State of Punjab, Decided by Hon'ble Supreme Court on 21.11.2016
7. Nilesh Dinkar Paradkar Vs. State of Maharashtra, MANU / SC / 0293 / 2011 5.3. Ld. Counsel for A-2 has submitted that complainant PW- 12 is the backbone of the prosecution case but has not supported the case of prosecution. It has been stated that complainant has specifically deposed that A-2 has demanded ₹ 15 lakhs from him as legal and professional fees and A-2 has categorically told him that out of this money he would not be paying anything to them. It has been stated that complainant PW-12 has been cross examined by prosecution at length but nothing has come on record in his statement to support the prosecution. It has been stated that electronic record i.e. Q-1, Q- 2 & Q-3 is neither admissible in evidence nor carries any probative evidentiary value. It has been stated that Q-2 & Q-3 are CDs stated to have been prepared after transferring the data from DVR through laptop but there is no certificate u/s 65B of Indian Evidence Act accompanying these articles and the certificate Ex. PW-11/C do not fulfill the requirements contemplated in the section. It has been stated that there is no description of the source i.e. DVR or laptop used for preparing CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 19 of 63 Q-2 & Q-3 which is violation of section 65B of Indian Evidence Act. It has been stated that Q-3 Ex. PW-5/A shows that Q-3 had 14 different files and different duration and file bearing no.
100820_010, 100820_012 & 100820_017 are missing and a file bearing no. 100821_005 is available but these files are not there in transcript which proves that the evidence was tempered by CBI. It has been stated that sanction for prosecution of A-2 granted by Addl. Commissioner is not proper as he is not the authority competent to impose penalties. In support of his submissions he has relied upon the following judgments:-
1. The Management of DTU Vs. Sh. B.B.L. Hajelay & Anr., AIR 1972 SC 2452
2. Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, AIR 1997 SC 701
3. MCD Vs. Ravinder Kr. Gupta, 28 (1985) DLT 176
4. Vijender & Ors. Vs. State of Delhi, I (1997) CCR 212 (SC)
5. Jagjit Singh @ Jagga Vs. State, AIR 2005 SC 913
6. State of Goa Vs. Babu Thomas 2005 (8) SCC 130
7. State Inspector of Police, Vishakhapatnam Vs. Surya Sankaram Karri, (2006) 3 SCC (Crl.) 225
8. Prakash Singh Badal Vs. State of Punjab, AIR 2007 SC 1274 CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 20 of 63
9. State of Gujarat Vs. Shailendra Kamal Kishore Pandey, 2008 Crl.L.J. 953
10. State of A.P. Vs. S. Swarnalatha & Ors., (2009) 8 SCC 383
11. Nilesh Dinkar Paradkar Vs. State of Maharashtra, 2011 (VII) AD SC 10
12. K.C. Singh Vs. CBI, Crl. Appeal No. 976/2010 dated 10.08.2011 passed by High Court of Delhi
13. G.S. Matharoo Vs. CBI, AD (Cr.) 2012 (1) 564
14. Anvar P.V. & Ors. Vs. P.K. Basheer & Ors., 2014 (10) SCALE 660
15. Nanjappa Vs. State of Karnataka, 2015 (8) SCALE 339
16. Sanjaysinh Ramarao Chavan Vs. Dattatrey Gulabrao Phalke, I (2015) SLT 436
17. Harpal @ Chhota Vs. State of Punjab, VIII (2016) SLT 88
18. Mahavir Singh Vs. State of M.P., VII (2016) SLT 716
19. Ashok Kumar Aggarwal Vs. CBI & Ors., 2016 (154) DRJ 489
20. Vadivelu Thevar Vs. State of Madras, AIR 1957 SC 614 APPRECIATION OF EVIDENCE 6.0. For better appreciation of facts let's see what is the CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 21 of 63 complaint made by PW-12. The complaint Ex. PW-10/C reads as follows:-
"To The Superintendent of Police, C.B.I. (Anti Corruption Branch) C.G.O. Complex, Lodhi Road, New Delhi Sub: Complaint against Sh. Naresh Arya (Architect) of Design-Aid at 7061/1, Street No. 5, Rameshwari Nehru Nagar, Karol Bagh, New Delhi-5 and J.E. Building V.K. Singh, MCD and Executive Engineer Sh. Chauhan, Building Department MCD of Karol Bagh Zone, Delhi. Sir, I Neeraj Yadav s/o Sh. M.K. Yadav, R/o H.No. 213, Near Post Office, Nangloi, Delhi-41 is the owner of 2nd and 3rd floor of Building No. 11-B, Rajendra Park, New Delhi-60. Sh. V.K. Singh, JE (Building MCD Karol Bagh) visited my above premises about 1 month back and told me that he has a court order to seal the said 2nd and 3rd floors of the said building. However, he did not show any court order to me despite request. He also said that the sealing can be stopped and action in my favour can be taken by them if I am ready to pay him and his executive engineer Sh. Chauhan a bribe of ₹ 15 lakhs. I straightway declined as I did not want to pay any bribe. He threatened me to either pay the bribe or face the consequences. On my reluctance and denial, Sh. V.K. Singh J.E. sealed the 3rd floor of my said premises on 13.08.2010.
He then told me that if I wanted any favourable action and avoid further sealing of 2nd floor I will have to pay him and executive engineer Sh. Chauhan a bribe of ₹ 15 lakhs otherwise the building will be sealed and subsequently demolished. On Monday i.e. 16.08.2010 Sh. V.K. Singh, J.E. conveyed to me that I should contact Sh. Naresh Arya, Architect of Design-Aid, Karol Bagh to settle the issue of sealing and demolition of CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 22 of 63 my said premises favourably. He also told that Sh. Chauhan, E.E. building department had also told him to give this instructions to me.
Accordingly, I contacted Sh. Naresh Arya in his office on 16.08.2010 where he assured that the issue of sealing / demolition will be settled after his meeting with said J.E. V.K. Singh and E.E. Chauhan.
Then on 18.08.2010 I went to the office of said Sh. Naresh Arya where he confirmed the demand of ₹ 15 lakhs by Sh. V.K. Singh, J.E. and E.E. Sh. Chauhan for favourable action in sealing / demolition. This conversation was recorded by me with the help of my digital voice recorder make Cenix. I am producing the said digital voice recorder wherein the said conversation is recorded.
During the said conversation Sh. Naresh Arya told me that he will get my meeting fixed with Sh. V.K. Singh, J.E. tomorrow evening i.e. on 19.08.2010. However, on 19.08.2010 Sh. V.K. Singh informed me telephonically that his wife was not well and I should contact the said Sh. Naresh Arya, however, it was learned that Sh. Naresh Arya was also not well. Then at about 9 PM on 19.08.2010 Sh. Naresh Arya contacted me on my telephone no. 9891483685 from mobile no. 9810108449 and told that he had a talk with E.E. Chauhan and J.E. V.K. Singh and the matter will be settled tomorrow evening and asked me to come to his office tomorrow before lunch and to bring ₹ 5 lakhs as first installment.
I do not want to pay any bribe to the said persons. It is requested that legal action may please be taken against Sh. Naresh Arya and the above said MCD officers. I am able to arrange only ₹ 1 lakh which may be used as part bribe demanded by them.
Yours faithfully, Neeraj Yadav CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 23 of 63 S/o Sh. M.K. Yadav, R/o H.No. 213, Near Post Office, Nangloi, Delhi-41"
6.1. Complainant Sh. Neeraj Yadav is in real terms backbone of the case and was examined as PW-12.Let us see what he has to say in support of his complaint. He has turned hostile and has demolished the prosecution case considerably. He has deposed that he was having 2nd and 3rd floors of property no. 11-B, Rajendra Park, New Delhi till July, 2011. In July he had sold this property. He has purchased the said plot in July, 2009. A-2, J.E. of MCD alongwith his staff visited his property about one month back of making complaint to CBI. A-2 had told him that there is court order and said building will be demolished. It was told that there was one old complaint against this building by the neighbor Sh. Atul Dutt and they were asked to vacate the building. He had told that building is old one and they had not done any construction and building is standing since 2005. The staff of A-2 told that they have to vacate the building. He asked the staff of A-2 about the solution who told him to meet A-2. He met A-2 who told him that there are 4 - 5 files pending against this building and the building shall be seized and demolished. On being asked about the papers of the other cases, A-2 refused to show any papers and asked to hire a lawyer. He went to the office of A-2 4-5 times. After many meetings, A-2 demanded ₹ 15 lakhs to save his floors as well as floor of other occupiers. This demand was made by A-2 in the beginning of August, 2010.
CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 24 of 63 Since the head of the family of the occupier of the other floors of the said building was in jail, he requested A-2 to wait but A-2 asked him to pay all the amount. Since bribe amount was big, he requested A-2 through mutual contacts but A-2 refused and sealed his 3rd floor on 13.08.2010. The message was spread in the building to pay the bribe amount otherwise building will be seized and demolished.
6.2. He has further deposed that either on 15.08.2010 or 16.08.2010 he again met A-2 and requested him to negotiate the bribe amount. On 16.08.2010 A-2 told him to contact A-1 the Architect having office at Karol Bagh. A-2 told him that A-1 is expert in MCD matters and court orders and being technical expert he will help him. Thereafter, he alongwith Executive Engineer Sh. Chauhan will take care of the matter. He had contacted A-1 on 16.08.2010, who told him that he knows the cases of this building and will sort out the matter legally. He asked him about his fee and he demanded ₹ 15 lakhs as fee. He was amazed and shocked to know that A-1 had demanded a huge fee of ₹ 15 lakhs and A-2 had also demanded the same amount. On being asked about the huge amount of ₹ 15 lakhs as legal and professional fees, A-1 explained that firstly he will demolish unauthorised structure to the extent it violate the Building Bye Laws, repair it and thereafter present the case for regularization before Executive Engineer Sh. Chauhan. A-1 further told that he will get the building constructed after regularization and this ₹ 15 lakhs is for all this purpose. He has asked A-1 whether this ₹ 15 lakhs demanded by him would CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 25 of 63 include the payment to be given to A-2 and Sh. Chauhan, Executive Engineer. A-1 replied that it is only his fees and he would not pay anything to them. He thought that A-1 & A-2 and Sh. Chauhan, Executive Engineer were hands in gloves to extract money from him as the amount was similar. He decided to approach CBI for making complaint against A-1 & A-2. He went to CBI office and made a complaint. He himself has recorded his conversation with A-1 and perhaps with A-2.
6.3. The witness was declared hostile and cross examined by Ld. PP. During cross he stated that his statement Mark PW-12/A was recorded by CBI. He further deposed that after making complaint to CBI, CBI officials discussed the case with him and assured that they will arrest the person who is demanding bribe from him. He admitted that after making the complaint by him, CBI officer had conducted verifications of the allegations mentioned in his complaint Ex. PW-10/C regarding demand of bribe by the persons named therein. He admitted that his Cenix make DVR wherein he had recorded the conversation between him and A-1 was played. He cannot say with certainty whether it had the voice of A-2. He admitted that before sealing of said DVR by CBI officials during verification proceedings, a copy of the said conversation was prepared by them and all this happened in the presence of independent witness PW-15. He admitted that he was asked by CBI official to fix an appointment with A-1 by making a call from his mobile number. He admitted that at about 11:15 AM on 20.08.2010 he contacted A-1 on his mobile no. 9891483685 from his mobile no. 9810008449 and CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 26 of 63 during conversation A-1 asked him to come to his office within half an hour. This conversation was heard by all the persons present in the CBI office through inbuilt speaker of his mobile phone. The conversation was also simultaneously recorded in the official DVR of CBI. Thereafter, it was decided to reach at the office of A-1 alongwith CBI officials and independent witness Sh. Rohit Gupta (PW-15).
6.4. Complainant has further deposed that on reaching near the office of A-1, car was parked at some distance. DVR was given to him for recording purposes by keeping it on switch on mode. He went inside the office of A-1. A-1 told him to bring the amount and work will be done. A-1 told that initially he should pay an amount of ₹ 5 - 6 lakhs. This amount was for A-1 as the legal and professional fee. He admitted that he had told CBI during recording of his statement that during discussion with A-1 regarding sealing matter of his property A-1 demanded bribe on behalf of A-2 and Executive Engineer Sh. Chauhan and asked him to come with ₹ 5 - 7 lakhs. He has further stated that it appears from the discussion of A-1 as if he was demanding the installment of aforesaid amount as bribe for A-2 and Executive Engineer and due to this reason he told the same to the CBI. Regarding verification memo Ex. PW-10/B he admitted his signature on it but stated that he does not remember whether the facts mentioned in it had happened on the spot or not. He denied the suggestion that he is giving evasive reply about the contents of the verification memo. He admitted that voices were heard by playing the DVR containing the conversation during verification CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 27 of 63 and after hearing conversation he had identified the voice of A-1. He further admitted that copies of CDs of the conversation contained in the DVR was prepared and one of the CD was sealed by the CBI official and one copy was kept for investigation purpose. He also identified his signatures on FIR Ex. PW-10/A. 6.5. Regarding handing over memo complainant has stated that facts mentioned therein were correctly recorded by CBI officials in his presence and in presence of independent witnesses PW-14 & PW-15. He identified his signatures on it. The demonstration with regard to change of colour of sodium carbonate solution to pink was also done. For demonstration GC notes of ₹ 1 lakh in denomination of ₹ 500/- each were given to CBI officials and their numbers were noted down in the said memorandum Ex. PW-12/1. Thereafter, they proceeded to office of A-1 at Karol Bagh which was situated at second floor. The reached near the office of A-1 at about 07:00 PM in CBI vehicles as well as in his car. They parked the vehicles near the office of A-1. DVR was handed over to him for keeping the same in switch on mode which was kept by him in his waist. Independent witness PW-15 was directed to remain with him to see and hear the whole proceedings. He alongwith PW-15 went to the office of A-1. A-1 was found sitting in his chamber. He entered in the chamber of A-1 alongwith PW-15. He handed over ₹ 1 lakh to A- 1, on this A-1 asked "Baki Amount Kaha Hai". He told A-1 that rest of the amount is being brought by his driver. A-1 told "Thik Hai Mangao Jaldi". A-1 accepted the amount and kept the same CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 28 of 63 in his drawer. A-1 insisted to bring more money as decided. Thereafter, he called CBI officials from his mobile no. 9210039793, which is his another number and being carried by him. He admitted to have told to CBI in his statement recorded u/s 161 Cr.P.C. that initially the amount of ₹ 1 lakh accepted by A-1 was kept on table but subsequently he kept the same in drawer of the table. He admitted to have given signal confirming acceptance of money by A-1 on the mobile phone of Inspector Rajesh Chahal. The whole team of CBI officials entered into the chamber of A-1. CBI officials after introducing themselves challenged A-1. A-1 has stated that it is not bribe and thereafter he kept mum. A-1 was caught by CBI team. DVR was taken from him and put on switch off mode. PW-15 was also asked to narrate the incident which had happened in the office chamber of A-1. PW-15 has correctly narrated all the incident to CBI. An amount of ₹ 1 lakh was recovered from office table of A-1 by independent witness PW-14. The amount was tallied by PW-14 with handing over memo. These notes were found to be same which were treated with the phenolphthalein powder in the CBI office during handing over proceedings. He has denied the suggestion that he had handed over ₹ 1 lakh as part of bribe amount to A-1 for giving the same to A-2.
6.6. Complainant has further deposed during his cross examination by prosecution that right hand wash of A-1 was taken by dipping the right hand in a freshly prepared colourless solution of sodium carbonate in a neat and clean tumbler. The solution turned pink and it was transferred in empty glass bottle CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 29 of 63 and same was sealed by CBI officials. The surface of the table on which money was kept was sweeped with the help of clean cloth. The said cloth was dipped in a freshly prepared colourless solution of sodium carbonate and the colour of the solution turned pink. The said solution was also transferred in empty glass bottle and sealed by CBI officials. He admitted that A-1 on instructions from CBI officials had talked with Executive Engineer on his mobile phone and discussed the issue of sealing of his property and transaction of ₹ 5 lakhs. One CBI official was deputed to arrest A-1. A-1 had told that he was in hospital. He admitted that DVR which was taken from him was played and conversation contained in it was heard by all present there including him and independent witnesses. He identified the voice of A-1 & A-2. The conversation from DVR was transferred into the CD with the help of laptop and copy of the same was also prepared for the purpose of investigation. One copy of the CD was also sealed with the seal of CBI. The signatures of independent witnesses were also taken on CD. The proceedings went on at the spot till 10:30 - 11:00 PM. A-1 was arrested vide arrest memo Ex. PW-12/2. The proceedings of trap were also recorded and he had signed the same alongwith other witnesses which is Ex. PW-12/3.
6.7. Complainant PW-12 has further deposed that on 16.09.2010 he had gone to CBI office, there in presence of PW- 14, PW-15 and other CBI officials he identified voice of A-1 & A-
2. He identified his signatures on voice identification cum transcription memo and transcription Ex. PW-12/4 (Colly). He CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 30 of 63 has further stated that in D-12 i.e. voice identification cum transcription memo and transcription of the conversation was prepared same day. He has further stated that vide production cum receipt memo Ex. PW-12/5 dated 07.10.2010 he had handed over self attested photocopy of sale deed between him and Surojit Banerjee to CBI. The self attested copy of the sale deed is Ex. PW-12/6. After 16.09.2010 he had again went to CBI office for handing over copy of sale deed and regarding that his statement was recorded on 07.10.2010 which is Ex. PW-12/B. He has identified the currency notes as Ex. PW-12/TM (Colly). On CD Q-1 being played in the court this witness identified his voice as well as voice of A-1 in it. In CD Q-2 he again identified his voice as well as voice of A-1. In CD Q-3 he identified his voice, voice of A-1,A-2 & Executive Engineer Sh. Chauhan. He denied the suggestion that he is deliberately improving the version of paying the professional fees to A-1. He further denied the suggestion that A-1 had demanded bribe on behalf of A-2. During his cross examination by A-1 he has stated that A-2 has referred him to A-1 as A-1 is an expert dealing with regularization of unauthorised constructions and de-sealing of properties for presentation of his case before MCD authorities for regularization. When he had met A-1 he was told that he (A-
1) will inspect the unauthorised construction of his building and would prepare necessary maps, site plans, application and document for filing regularization application before competent authority i.e. Sh. Chauhan, Executive Engineer of the area. A-1 had further told him that he will demolish the unauthorised CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 31 of 63 construction of his building of 2nd and 3rd floor, repair it and renovate it. A-1 has further told that he would appear before the competent authority for presentation of regularization case. A-1 has further told that he would arrange labour and mason for demolishing unauthorised construction and would also arrange building material and for said work and other works cost will be ₹ 15 lakhs. Complainant has categorically stated that A-1 had not demanded any money from him for any officer of MCD. When he had given complaint Ex. PW-10/C to CBI he was under
confusion that A-1 will not demolish/reconstruct/file application for regularization and would get his work done unofficially through A-2. Because of this confusion he thought that both A-1 & A-2 are hand in glove with each other and filed complaint under this misconception. He has further stated that during trap proceedings audios were recorded and heard by them were not having noise of traffic and disturbance etc. However, the audios which were played in court were having lot of traffic noise and disturbance. He has admitted that A-1 had asked him to pay his legal professional charges for construction and regularization work and had never demanded any amount for any officer of MCD or any other department. He has further admitted that he has made complaint against A-1 under misconception and confusion and A-1 had only asked for his legal fee.
6.8. Another important witness in this case is PW-15 Sh.
Rohit Gupta who is the punch witness. As per the prosecution case he was present at the time of verification proceedings and thereafter at the time of trap proceedings. He has also turned CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 32 of 63 hostile and has not supported the case of prosecution on material aspects of the case. Let see what he has deposed.
6.9. He was called by CBI on 20.08.2010 and reached there office at about 10:00 AM. There he met CBI officer Sh. Khullar who introduced him with complainant Sh. Neeraj Yadav and he was shown complaint. Complainant called A-1 at about 11:15 AM and talked with him by putting the phone on speaker mode. This conversation was heard by him, the other punch witness Sh. Attar Singh (PW-14) & TLO Inspector S.K. Khullar (PW-10). After that he alongwith complainant and TLO (PW-10) went to the office of A-1. The DVR was handed over to complainant for recording of conversation. The conversation which took place in CBI office was recorded in CD. On reaching office of A-1, he alongwith Inspector Nikhil Malhotra (PW-11) remained sitting in the vehicle and complainant went to the office of A-1. Before going to the office of A-1, complainant had put the recorder make Cenix in on mode. After about 20 - 30 minutes complainant came back and told that A-1 had asked for 5 - 7 lakhs for regularization of his building and for which he called for a meeting in his office. After reaching CBI office the recorded conversation was heard. He cannot tell the exact conversation but gist of the conversation was that A-1 had asked for 5 - 7 lakhs for regularisation of building of complainant. The recorded conversation was transferred in one CD with the help of laptop and same was sealed by CBI officials. Since the meeting was fixed in the evening same day they waited in CBI office. The bribe amount of ₹ 1 lakh to be given to A-1 consisting of 200 CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 33 of 63 notes each of ₹ 500/- denomination was handed over by complainant to CBI officials. The phenolphthalein powder was applied on these notes and demonstration was given. He was instructed to remain with complainant as a shadow witness during trap and was directed to give signal after handing over money to A-1 by putting his both hands on his face. At this stage witness was declared hostile and was cross examined by prosecution. During cross examination he stated that his introductory voice and of PW-14 were taken in voice recorder. He stated that he cannot admit or deny the fact that the recording which was done during verification proceedings in the office of Naresh Kumar Arya was done on DVR make Sony and not make Cenix. He cannot say that the amount which was taken by A-1 was on account of bribe was to be given to public servant.
6.10. Regarding the trap proceedings PW-15 has stated that they parked the vehicle near the office of A-1 and DVR was handed over to complainant by putting it on switch on mode. Complainant had kept the DVR in his vest. He alongwith complainant went to the office of A-1 situated at the second floor of the building. Remaining team members and independent witnesses remained downstairs near the vicinity of the building. They entered in the office of A-1 who was present in his cabin. Complainant handed over money at his own but A-1 said "Jaisi Baat Hui Thi". A-1 accepted the said amount with his right hand and kept the same on office table. Thereafter, complainant told A-1 that he is asking his driver to bring ₹ 4 lakhs in addition to this amount. On this A-1 asked the complainant to bring 5 - 6 CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 34 of 63 lakhs. Complainant took out his phone and called CBI Sh. Chahal, CBI official, to show that he was making a call to his driver for bringing the remaining amount. Because of the signal CBI team members including punch witness PW-14 reached office of A-1 within 2 - 3 minutes. On the pointing of the complainant A-1 was apprehended by CBI officials. DVR was taken back from complainant and it was put to off mode. Thereafter, he has deposed about taking of wash of right hand of A-1, surface wash of the table in the office of A-1. A-1 had told CBI officials that this money was to be handed over to A-2 and Sh. Sh. Chauhan from MCD for showing favour to complainant regarding sealing of property no. 11-B, Rajendra Park, New Delhi.
6.11. Regarding conversation between A-1 & A-2 this witness has deposed that CBI officials directed A-1 to make a call to A-2 stating that he had received ₹ 5 lakhs from complainant to settle the issue of property no. 11-B, Rajendra Park, New Delhi. Accordingly, A-1 spoke with A-2 on mobile phone by stating that he had received ₹ 5 lakhs from complainant to settle the issue of property. The conversation which took place between A-1 & A-2, A-1 & Sh. S.K. Chauhan was heard as the phone was put on speaker mode. A-2 had told A-1 due to hospitalisation of his wife at Parmanand Hospital he would not be able to collect the money and he was sending a boy by 10:00 PM on the same day to collect the money so received.
6.12. Panch witness PW-15 has denied the suggestion that A-1 CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 35 of 63 had not taken the money for regularization and he has deposed false in this regard. It is further stated that he cannot admit or deny that A-1 had demanded an amount of ₹ 5-6 Lakhs for the MCD officials namely A-2 as bribe amount and the tainted bribe amount of ₹ 1 Lakh was accepted by A-1 as instalment of ₹ 5-6 lakhs for and on behalf of A-2. During his cross-examination by A-2 he has stated that his bank's administrative staff had orally told him on 19.8.2010 in the evening hours that he has to visit CBI office on 20.8.2010 in reference to this complaint. Mr. Chahal had told him that complainant had provided a pen drive, a DVR and a CD to CBI. Again during his cross-examination by A-1, he has stated that he cannot admit or deny that during interrogation A-1 did not tell CBI that money was to be handed over to A-2 or Mr. Chauhan of MCD for showing favour to complainant regarding sealing of property 11-B, Rajendra Park, New Delhi. He voluntarily stated that it was for regularization expenditure as stated by him.
6.13. PW-14 Attar Singh is another panch witness who had joined the trap proceedings. He deposed that on receipt of written letter from CBI in their office, he had visited CBI office on 20.8.2010 at about 10 AM. Before proceeding for Karol Bagh, they all gathered in the CBI office. Money was given to complainant by CBI officials. In the very beginning of his statement, this witness was declared hostile and was cross- examined by prosecution. During his cross-examination he has admitted that complainant had produced a DVR make CENIX to CBI team having recorded conversation between complainant CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 36 of 63 and A-1. The same was heard by all persons there and it was transferred in CD by CBI officers. He has admitted that money of ₹1 Lakh which was given to accused in fact brought by complainant in the denomination of ₹500 in two bundles of 100 notes each. He has admitted various suggestions given to him regarding demonstration treating of tainted bribe amount with phenolphthalein powder putting tainted bribe amount in front pocket of the bag of the complainant, directing PW-15 to remain with complainant so that he can overhear the conversation and see the transaction of bribe amount and gave a signal. He admitted that they reached Karol Bagh at about 7 PM and DVR was given to complainant after putting it on "switch on" mode. He admitted that about 7.20 PM a call was received from the complainant's mobile phone to mobile phone of CBI official confirming the transaction of bribe, on which they had rushed to the office of A-1 inside the building. He has stated that he does not remember if the CBI official after entering into the office of A- 1 had asked him that whether he had demanded and accepted the bribe amount of ₹ 1 Lakh from the complainant for facilitating a favourable decision in relation to sealing/demolition of the 2nd and 3rd floor of the building of complainant. He further deposed regarding recovery of the bribe amount, taking right hand wash, surface wash of the table and apprehension of A-1. He admitted that on the directions of CBI officials, A-1 contacted A-2 on his mobile phone number and had discussed the issue of sealing of Rajinder Nagar property and receiving of ₹ 5 Lakhs for this purpose. He further admitted that A-2 told A-1 that he will be CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 37 of 63 sending his boy in the office of A-1 by 10 PM for collecting the bribe amount. During his cross-examination by A-1 he has stated that he cannot admit or deny the suggestion that complainant had paid ₹1 Lakh to A-1 as part of his professional fee for filing regularization application, demolition, repair and renovation of unauthorized construction of 2nd and 3rd floor of the complainant.
6.14. As already discussed, complainant is the backbone of the prosecution case but he has turned total hostile, at least qua the allegations against A-1. He has deposed of having given ₹ 1 Lakh to A-1 on 20.8.2010 at the time of laying trap but his version is that A-1 had demanded ₹ 15 lakhs as professional charges for filing regularization application, demolition of unauthorised construction, renovation of the building, thereafter, preparation of documents and appearance before the competent authority. Complainant has deposed to the extent that since A-2 had also demanded bribe of ₹ 15 Lakhs, due to this reason he was under confusion that both A-1 and A-2 are hands in glove with each other and he filed complaint under this misconception.
6.15. The independent witness PW-15, who is witness to verification proceedings and trap proceedings has also turned hostile and has supported the version of complainant. Strangely, CBI officials, i.e. PW-10 Inspt. Sanjay Kumar Khullar, trap lying officer and PW-11 Inspt. Nikhil Malhotra, who had conducted verification of the complaint and was also member of the trap team have also failed to make any clear and specific statement CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 38 of 63 supporting the prosecution case regarding role played by A-1 in the entire incident. PW-10 during his cross-examination has stated that he has no personal knowledge as he was not present there that complainant had informed SP CBI that A-1 had informed the complainant that he would inspect the unauthorized construction of the building, prepare necessary maps, site plans, applications and documents for filing regularization application before the competent authority Sh. S.K. Chauhan, concerned Executive Engineer and would demolish the unauthorized construction and do the necessary construction etc. He has further stated that he has no personal knowledge as he was not present there that complainant at the time of lodging complaint was under misconception/confusion that A-1 and A-2 are hands in glove.
6.16. PW-11 has admitted in his cross-examination that complainant of his own had handed over the money to A-1 and he has no personal knowledge that during conversation A-1 had demanded his legal professional charges from the complainant for regularization of his building.
6.17. Similarly, IO PW-16 Inspt. Alok Kumar Singh during his cross-examination has stated that he has no personal knowledge as he was not present there that the complainant at the time of lodging complaint was under misconception/confusion that A-1 and A-2 are hands in glove with each other and under said CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 39 of 63 misconception he has filed the complaint against A-1.
6.18. The contention raised by Ld. PP CBI is that though PW-12 and independent witness PW-15 have turned hostile and have not supported the prosecution allegations on all aspects but to a great extent they are supporting the prosecution allegations and hence their statements cannot be totally ignored. It has been further submitted that to substantiate its case, prosecution has also relied upon and has been able to duly prove on record the recorded conversation and transcript Q-1, Q-2 and Q-3. 6.19. It has been vehemently argued on behalf of both A-1 and A-2 that transcripts Q-2 and Q-3 cannot be considered as the same are not inconsonance with the prescribed procedure and settled law. First contention raised on behalf of accused persons is that Q-2 and Q-3 are the CDs prepared from the original electronic device, i.e. DVR in which as per case of CBI the conversation during verification and trap proceedings was recorded, but the same are not filed with the charge sheet along with mandatory certificate under Section 65-B Indian Evidence Act. It has been stated that the Apex Court has settled the law in Anvar P.V. (supra) that a CD must accompany certificate under Section 65-B of Indian Evidence Act. They have also relied upon similar observations by Apex Court made in Harpal Singh @ Chhota (supra). It has been stated that subsequently PW-11 who is verification officer in this case has filed the mandatory certificate under Section 65-B of Indian Evidence Act dated 29.4.2016 which is contrary to the mandate of law and cannot be CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 40 of 63 considered.
6.20. On the other hand, Ld. PP CBI has submitted that law is settled that even at the stage of evidence, prosecution can file certificate under Section 65-B of Indian Evidence Act in support of the electronic record which it seeks to prove. In support of submissions, he has relied upon Kundan Singh Vs. The State [MANU/DE/3674/2015].
6.21. In Anvar P. V. (supra) Apex Court over ruling its observations in case State (NCT of Delhi) Vs. Navjot Sandhu @ Afsan Guru [Manu/SC/0465/2005], made following observations in para 22 as follows:
"The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence Under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia special bus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Section 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this Court in Navjot Sandhu case (supra), does not law down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements Under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc. the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 41 of 63 which, the secondary evidence pertaining to that electronic record, is inadmissible."
6.22. The apex Court in Harpal Singh and ors. (supra) has reiterated its observations in Anvar P. V. (supra) that electronic record in the form of secondary evidence cannot be admitted in evidence unless the requirement of Section 65-B of the Indian Evidence Act are satisfied.
6.23. Admittedly in this case certificate under Section 65-B was not filed by the prosecution along with CDs Q-1, Q-2 and Q-3 at the stage of filing of charge sheet and the same was filed subsequently by PW-11. In Kundan Singh (supra), Hon'ble Delhi High Court dealt with the issue whether certificate under sub-section 4 of Section 64-B of Indian Evidence Act must be issued simultaneously with the production of computer out put or a certificate under Section 65-B can be issued and tendered subsequent to it to be admitted in evidence in the Court when the official is called to give evidence. After discussing para 15 of Anvar P. V. (supra), the court observed that the aforesaid para does not postulate or propound a ratio that the computer output when reproduced as a paper print out or on optical or magnetic media must be simultaneously certified by an authorised person under sub-section 4 of Section 65-B of Indian Evidence Act. Of course, it is necessary that the person giving certificate under sub-section 4 to Section 65-B should be in a position to certify and state that the electronic record meets the stipulations and conditions mentioned in sub-section 2, identify the electronic CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 42 of 63 record, described the manner in which computer output was produced and also give particulars of the device involved in production of the electronic record for the purpose of showing that the electronic record was prepared by the computer.
6.24. In view of the observations of the court discussed above, the contention raised on behalf of accused persons that the CDs, Q-2 and Q-3 prepared from the DVR were not accompanying certificate under Section 65-B and, therefore, cannot be held admissible in evidence, holds no ground.
6.25. Other contention raised on behalf of accused persons is that Anvar P. V. (supra) has elaborated the various requirements of Section 65-B and the same should not be a mere formality. It has been stated that there are various deficiencies in the certificate Ex. PW 11/A given by PW-11 rendering it inadmissible in evidence and establishing that just to fill up the lacuna, the prosecution has introduced the same at a much later stage.
6.26. For better appreciation of facts contents of certificate Ex. PW 11/A are reproduced as follows:
" It is certified that the CDs prepared in case RC 36(A)/2010-DLI were produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by me;
(b) During the said period, information of the kind contained in the electronic record was regularly fed into the computer in the ordinary course of the said activities;
CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 43 of 63
(c) Throughout the material part of the said period, the computer was operating properly and
(d) the information contained in the electronic record is derived from such information fed into the computer in the ordinary course of the said activities."
6.27. In support of their submissions, Ld. counsels for accused has relied upon para 13 to 15 of Anwar P. V. case (supra). For better appreciation of facts, these paras of this judicial pronouncement are reproduced as follows:
"13. Any documentary evidence by way of an electronic record under the Evidence Act, in view of the Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned Under Sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions Under Section 65B(2) of the Evidence Act:
CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 44 of 63
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
14. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
(a) There must be a certificate which identifies the electronic record containing the statement;
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned Under Section CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 45 of 63 65B(2) of the Evidence Act; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
15. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence.
Electronic, records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice."
6.28. The certificate under Section 65-B of Indian Evidence Act has been given and proved by PW-11 Inspector Nikhil Malhotra, who has done verification of the complaint. Let us see what witness has stated about the procedure followed by him in preparing the CDs Q-2 and Q-3 from the original recording device, i.e. DVR. During his cross-examination he has stated that laptop was used for preparing CDs in the instant case. The said laptop was official laptop but not issued by malkhana. The said laptop was handed over to him by one official of Delhi Police, who was posted in CBI, on his repatriation. It was of Lenovo brand but he does not remember its internal CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 46 of 63 configuration. He has admitted that Ex. PW 11/A no where reflects use of laptop or laptop of Lenovo brand and it mention "computer" used for preparing the CD. On 29.4.2016, i.e. today, when he prepared Ex. PW 11/A, the said laptop is not in his possession.
6.29. One of the apparent discrepancy pointed out by Ld. defence counsel in Ex. PW 11/A vis-a-vis statement of this witness is that Ex. PW 11/A talks about a computer and there is no mention of any laptop or its brand there. The computer is defined under Section 2(1)(i) of I. T. Act and in view of this definition, I agree with the contention of Ld. PP CBI that it is a generic definition and laptop comes under this definition.
6.30. Other contention raised by Ld. PP which is relevant to be discussed here is that PW-11 has no where stated if the data from the DVR was stored in computer and thereafter an investigating copy was prepared out of it. It has been urged that the investigation copy was prepared by a simultaneous process as is done while taking out a printout from a computer while recording evidence by a witness during trial, the statement is recorded by the steno in the court on the dictation given by the presiding officer and after completion of the deposition of a witness its printout is taken without issuing any certificate under Section 65-B of Indian Evidence Act. This contention has been objected by the defence submitting that it is no where clear from the statement of PW-11 or any of the prosecution witness, if the investigating copy of the CD was prepared simultaneously and CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 47 of 63 moreover the mandate of the Apex Court in Anvar P. V. (supra) is clear and prosecution is trying to dilute the mandate. I agree with this contention raised by Ld. defence counsels that PW-11 or TLO (PW-10) or any other prosecution witness has no where stated that the procedure of making investigating copy from the DVR was simultaneous, i.e. on transferring data from DVR to laptop immediately the investigation copy was prepared out of that. Moreover in Anvar P. V. (supra) appellant had filed a petition under Section 100(1)(b) read with Section 123 (2)(ii) & (4) of Representation of People Act alleging that respondent had indulged in corrupt practices. He had produced the CDs prepared from the original recording which were not accompanying certificate under Section 65-B of Indian Evidence Act. After considering the legal position in this land mark judgment, Hon'ble Apex court refused to consider those CDs by observing that the same cannot be admitted in evidence in absence of certificate under Section 65-B of Indian Evidence Act. In view of these reasons, I do not agree with the contention raised by Ld. PP CBI that in the facts of this case, the certificate under Section 65-B of Indian Evidence Act is not at all required.
6.31. Coming back to the contents of the certificate Ex. PW 11/A, Section 65-B(4) clearly provides that the certificate should identify the electronic record, it must describe the manner in which electronic record was produced and must furnish the particulars of the device involved in the production of that record. As discussed above, PW-11 has just talked about a laptop of Lenova brand of Delhi Police official who was working in CBI, CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 48 of 63 which was used to prepare the CDs, i.e. Q-2 and Q-3. The certificate under Section 65-B of Indian Evidence Act Ex. PW 11/A is deficient in many ways, which are as follows:-
(i) from the statement of PW-11, it is apparent that this laptop was not regularly used by CBI for this purpose, which is one of the essential requirement of Section 65-B (2). Mere certificate to the effect that "the period over which computer was used regularly to store or process information for the purpose of any activities regularly carried on over that period by me" is of no avail.
(ii) Section 65-B (4) talks about the particulars of the device involved in the production of that record. But PW-11 has failed to give particulars, except the brand name Lenovo. To a specific question, he has replied that he is not aware of the configuration of the said device.
6.32. Section 65B (4) also talks about identification of electronic record. This implies the brand name of the device which includes its number "which is unique number given by the manufacturer to that particular device" etc. 6.33. It is admitted case of the prosecution that CDs Q-2 and Q-3 were prepared from the DVR and transcripts were prepared from these CDs. Q-1 is the original DVR produced before the court and same is admissible in evidence.
6.34. The other contention raised on behalf of Ld. counsel for A- 1 is that even transcript prepared from CD should have certificate under Section 65B of Indian Evidence Act and in the CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 49 of 63 absence of that same cannot be considered and looked into by the court. In support of his submission, Ld. counsel has relied upon the observations made by Hon'ble High Court in Girwar Singh & others (supra). The fact of the present case are distinguishable from the facts of this case. In this case, transcription-cum-voice identification memo was made on a computer and not by hand by the I.O. It was under these circumstances, the court has observed that certificate under Section 65-B was required to be filed along with transcript. But in the instant case, the transcription from CDs Q-2 and Q-3 were prepared by IO by hand after hearing the contents of the CDs. In view of this reasons, I do not agree with the contention raised by Ld. counsel that even transcript should have accompanied certificate under Section 65-B of Indian Evidence Act in the present case. It is further relevant to discuss here the contention raised by Ld. counsel for A-2 that there appears to be tempering in the transcript and deliberately certain files have been left which causes serious doubt regarding the credibility of these transcripts. Ld. counsel has also submitted that complainant in his statement has admitted that there is noise of traffic sounds of unknown persons in CDs Q-1, Q-2 and Q-3 when played before the court. It has been stated that in view of Ram Singh & others Vs. Col. Ram Singh (Manu/SC/0176/1985) the CDs cannot be taken into consideration.
6.35. Complainant PW-12 in his statement, while DVR Ex.PW 5/B3 was played, has stated that there is voice of unknown persons in the background and also noise of traffic in the CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 50 of 63 background, the pitch of recorded sound at some place is low and high at some places. Similarly, for Q-2 and Q-3 he has stated that there are some unidentified voices and some voices of traffic.
6.36. In Ram Singh (supra), the court has stated that some conditions are necessary for admissibility of tape recorded statement which are as follows:
(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. (2) The accuracy of the tape-recorded statement has to be proved by the maker of the record by satisfactory evidence-- direct or circumstantial.
(3) Every possibility of tampering with or erasure of a part of a tape-record statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible. (4) The statement must be relevant according to the rules of Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
6.37. Except these voices at some places of unknown persons and traffic, all other requirements specified by the Apex Court for admissibility of tape-recorded statement appears to be satisfied in this case. The Ld. counsel for A-2 has pointed out CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 51 of 63 that as per the report of physics devision of CFSL Ex. PW 5/A, Q-3 was having 14 files but file no. "100820_005" is not mentioned in the transcript. He has further pointed out that similarly transcript has details of file Nos. 100820_19 and 100820_20 but there is no mention of these files in CFSL report Ex. PW 5/A. Regarding this discrepancy in the transcripts and CFSL report, Ld. PP CBI has stated that the files which were not having material contents were not mentioned. He has further submitted that CFSL official could have explained this discrepancy but no such question was put to him. On this, Ld. counsel for accused has pointed out that PW-5 who was working as Director, CFSL, CBI has admitted during his cross- examination that while transferring the recorded voices from original storage to CD, there is possibility of tempering, editing and erasing of the voices and there is possible to create totally new sentences by editing the already recorded voices.
6.38. Perusal of the transcript and CFSL report Ex. PW 5/A reveals that there exists discrepancies regarding some files. These files, which are not there in CFSL report, have some contents as mentioned in transcript but prosecution has failed to explain this discrepancy. I do not agree with the contention raised by Ld. PP for CBI that it was duty of the accused to have put the question regarding this discrepancy to the witness who has proved his report rather it was duty of the prosecution to have cleared this discrepancy to strengthen its case.
6.39. The other contention raised on behalf of prosecution is that CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 52 of 63 the conversation, during the verification proceedings and trap proceedings, are having supportive value to the oral testimony of other prosecution witnesses. It has been stated that though complainant has turned hostile specially against A-1 but he has admitted to have made complaint Ex. PW 10/C, having joined verification proceedings, trap proceedings and further conversation which took place between A-1 and A-2 in the office of A-1 after the trap proceedings. It has been stated that law is settled that the testimony of a hostile witness cannot be discarded in toto. It has been stated that support given by the complainant to the version which took place between A-1 and A- 2 after laying trap, affirmative answers given by A-2, statement of A-2 that he will send his man to the office of A-1 to collect bribe money, goes to prove that both were part of the conspiracy to take bribe from the complainant.
6.40. In the background of the facts discussed above, complainant is the backbone of the prosecution case. He has turned totally hostile as far as role assigned to A-1 in this prosecution is concerned. As discussed in above paras, regarding the admitted demand by A-1 of ₹15 Lakhs, he has stated that he was under misconception that since A-2 had also made demand of ₹15 Lakhs, A-1 must be hand in glove with A-
2. I agree with the contention raised by Ld. PP CBI that testimony of a hostile witness cannot be discarded in total, certain part of the testimony can be believed but the same should be supported by some other evidence. In Satpaul Vs. Delhi Admn. [AIR 1976 SC 294] and Shyamlal Ghosh Vs. State CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 53 of 63 of West Bengal [AIR 2012 SC 3539], the Hon'ble Apex Court has held that the testimony of a hostile witness is not liable to be wholly rejected and can be relied upon to the extent that it supports the version of the prosecution; conviction can be based on such testimony if corroborated by other reliable evidence.
6.41. As far as evidence against A-1 is concerned, evidence led by prosecution against him is statement of complainant, the transcript of Q-1, Q-2 and Q-3. Q-2 and Q-3 are held to be inadmissible in evidence due to various reasons discussed above.
6.42. Q-1 is admissible in evidence but its careful perusal reveals that A-1 is talking about the documents and total expenses involved. Ld. PP has pointed out that A-1 has stated that "Jis Say Baat Hui Hai, Pahle Uss say to confirm Karoo", which shows that he was in conspiracy with A-2 and court should take cognizance of this fact.
6.43. Section 120-B IPC defines criminal conspiracy. In Kehar Singh & Others Vs. State (Delhi Admn.), [Manu/SC/ 0241/ 1988] and State Vs. Nalini, [Manu/SC/0945/1999], Hon'ble Apex Court has observed that a conspiracy may be hatched in secrecy and it may be difficult to adduce direct evidence in such cases, and the prosecution will more often rely on circumstantial evidence. Existence of a conspiracy and its objective are usually deducted from the circumstances of the case and conduct of the accused involved in the conspiracy.
6.44. Even at the cost of repetition, it is mentioned that CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 54 of 63 complainant has turned hostile, despite elaborated cross examination by Ld. PP he has not deposed anything incriminating against A-1. CDs Q-2 and Q-3 on the basis of which transcripts were prepared, are held inadmissible in evidence. Independent witness PW-15, as per prosecution case, has not gone inside the office of A-1 along with complainant when he has gone there for verification of allegations on 20.8.2010, however, he was with complainant at the time of laying trap. This witness has also turned hostile. He has stated that complainant has handed over the tainted bribe amount of ₹ 1 Lakh to A-1 at his own and this amount was for regularization expenditure. The only evidence which now remains against accused persons is the communication which took place, between A-1 and A-2 on 20.8.2010 after trap proceedings, in the office of A-1.
6.45. Regarding the conversation which took place between A- 1 & A-2 on 20.08.2010 after the trap proceedings, Ld. Counsel for A-1 has contended that when A-1 had contacted A-2 on his mobile phone at that time he was in custody of CBI and whatever he has stated is hit by section 26 of Indian Evidence Act. In support of his submissions Ld. Counsel has relied upon the observations made by the court in Mukesh Vs. State (Supra), where court has observed that police custody for the purposes of section 26 of Indian Evidence Act commences as soon as movements of accused get restricted. In Aghnoo Nagesia (Supra) the Apex Court has held that the confessional statement made by accused to police officer while in custody of police CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 55 of 63 officer is inadmissible in evidence.
6.46. To prove this conversation between A-1 & A-2, in addition to relying upon the statements of TLO (PW-10) and PW-11 Inspector Nikhil Malhotra who were members of trap team, prosecution has also relied upon the transcript of CD Q-3. As discussed in above paras, since the CD Q-3 is held to be inadmissible in evidence being not accompanying a proper certificate complying with the requirements of section 65B of Indian Evidence Act and because of the discrepancies in transcript and CFSL report Ex. PW-5/A, the only evidence which can be considered regarding this conversation is oral testimonies of prosecution witnesses.
6.47. TLO (PW-10) has stated that A-1 was directed to make a call from his mobile phone to the mobile phone of A-2. A-1 had conversation with A-2 and during the conversation A-2 was found in agreement with A-1 as A-1 had discussed the issue of sealing of property and receiving ₹ 1 lakh from the complainant. This conversation was heard with the help of inbuilt speaker of mobile phone of A-1 and at the same time it was recorded in the DVR. PW-11 who is the other CBI official being member of trap team examined by prosecution has deposed that in order to ascertain the role of A-2, A-1 was directed to make a call from his mobile to the mobile phone of A-2 informing him of the delivery of bribe amount. Accordingly, call was made by A-1 to A-2 informing him that he has received the bribe amount. A-2 was found in collusion with A-1 and also stated that he was sending a boy to CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 56 of 63 collect the bribe amount from the office of A-1. While contacting A-2 a few calls were also made by A-1 but the same could not materialize. These calls were recorded with the help of DVR by putting the mobile phone of A-1 in speaker mode. The independent witness PW-14 during his cross examination by Ld. PP, CBI has admitted that A-1 was directed to contact A-2 on his mobile phone, A-1 had discussed the issue of sealing of Rajender Nagar property and of receiving ₹ 5 lakhs. He has admitted that he could gather from the discussion of A-1 that A-2 has agreed with A-1 regarding settlement of issue in lieu of acceptance of ₹ 5 lakhs. He further admitted that he heard A-2 telling A-1 that he will be sending the boy in the office of A-1 for collecting the bribe amount by 10:00 PM. Second independent witness PW-15 during his cross examination by Ld. PP, CBI has stated that CBI officials directed A-1 to make a call to A-2 and tell that he had received ₹ 5 lakhs from complainant to settle the issue of above said property. He heard that A-2's wife was not well and she was admitted in Parmanand Hospital. A-2 had told A-1 that he will send his boy by 10:00 PM same day to collect the money so received.
6.48. At the time of this conversation A-1 was in custody and as per the evidence discussed above he was made to call A-2 on his mobile phone and talk about the settlement of the issue regarding the property of the complainant and receipt of bribe amount of ₹ 5 lakhs. There is no doubt that statements made by PW-1 is hit by section 25 & 26 of Indian Evidence Act and cannot be read against him. However the conduct of A-2 by CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 57 of 63 agreeing to the information given by A-1 regarding settlement of issue regarding property of complainant and receiving of ₹ 5 lakhs as bribe amount in lieu of that, Ld. PP, CBI has contended that it amounts to discovery of fact as defined u/s 27 of Indian Evidence Act and same should be considered to substantiate the allegations of conspiracy between A-1 & A-2 for seeking bribe from complainant. Ld. Counsel for A-2 has contended that as per the case of CBI, A-1 had contacted A-2 on his mobile no. 9716777237 but CBI has failed to establish that this mobile SIM was issued on the name of A-2 or was being used by him. It has been further submitted that as per the CFSL report Ex. PW-5/A the specimen voice of A-2 was compared with the alleged voice of A-2 with CD Q-3 but as CD was not accompanying certificate u/s 65B of Indian Evidence Act when sent to CFSL, the CFSL report regarding comparison holds no value.
6.49. As per PW-13 Nodal Officer, Aircel the mobile phone no. 9716777237 was issued on the name of Samir Kumar Sharma (PW-1). PW-1 has deposed that his SIM was lost along with his mobile phone on 07.03.2010. He had not got reissued the same number on his name. He had made a complaint in P.S. Kotwali same day in this regard which is Ex. PW-1/B. In view of these circumstances it remain a mystery that how as alleged by prosecution, A-2 was using this SIM number. Ld. PP, CBI has contended that CDRs and tower location of this SIM establish that A-2 was using it and at the time of this conversation between A-1 & A-2, location of this SIM was near Sant Parmanand Hospital,which was location of A-2.
CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 58 of 63 6.50. Tower location reflected in the CDR of a SIM number covers distance of few kilometers and it is not possible to locate the location of the user precisely. The CDR of SIM no. 9810008449 which was admittedly used by A-1 confirms the calling of SIM no. 9716777237 by the user on 20.08.2010 on 11 occasions between 04.14 PM till 9.20 PM. Except the voice identification in CFSL report Ex. PW-5/A there is no evidence to connect the SIM no. 9716777237 with A-2. The taking of specimen voice of A-2 stands proved from the statement of IO (PW-16) and independent public witness Sh. S. K. Jain (PW-17). As per CFSL report Ex. PW-5/A the questioned voice marked Ex. Q-3(B) and specimen voice of A-2 marked Ex. S-2(A) revealed that both are similar in respect of their linguistic and phonetic features. The questioned voice is the probable voice of A-2. In view of the CFSL report, though the CD Q-2 & Q-3 are held inadmissible in evidence during the trial but comparison of questioned voice of A-2 from CD Q-3 by CFSL with specimen voice cannot be disputed.
6.51. Ld. counsel for A-2 has contended that since A-2 had sealed some portion of the property of the complainant due to this reason he has turned vindictive and has made this false complaint. It has been further submitted that statement of complainant, having turned hostile on material particulars of the case is not inspiring confidence and its credibility gets dented considerably. To prove his contention Ld. Counsel has drawn attention of this court to statement of PW-7 & PW-9 who are officials of MCD and were posted in building department in Karol CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 59 of 63 Bagh Zone at the relevant time. As per the statement of PW-7 who was working as Executive Engineer (Building), Karol Bagh Zone at the relevant time, 3rd floor of property no. 11-B, Rajindra Park, Delhi was sealed. The owner / occupier / tenant of ground floor, first floor and second floor of the rear portion of the said building had requested for one week time to vacate the premises. The report in this regard is Ex. PW-7/R which is under the signature of A-2. PW-9 was working as AE (Building) at the relevant time. He has deposed that on 13.08.2010 he alongwith A-2 had gone to property no. 11-B, Rajindra Park to seal ground floor, first floor, second floor and third floor. Since third floor was vacant they sealed the same. The owner / occupier of other floors requested for grant of one week's time so that they could vacate the premises under their occupation for further action by the MCD. They moved application in this regard.
6.52. As per complainant he was owning second and third floor of property no. 11-B, Rajindra Park, New Delhi. His property being under threat of getting sealed by A-2 being area JE of building department, he has every reason to nurture grudge against A-2. But from this fact it cannot be presumed that he might have made a false complaint. Complainant has made specific allegations in his complaint Ex. PW-10/C that A-2 had demanded bribe of ₹ 15 lakhs for not sealing second floor of the property. In Ex. PW-10/C it is specifically mentioned that on 16.08.2010 A-2 conveyed him that he should contact A-1, Architect of Design-Aid, Karol Bagh to settle the issue of sealing and demolition of his said premises favourably, he had met A-1 CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 60 of 63 on 16.08.2010 & 18.08.2010 and he had confirmed demand of ₹ 15 lakhs by A-1 and E.E. Sh. Chauhan for favourable action in sealing / demolition. But while deposing before this court complainant has deposed that A-2 had asked him to hire a lawyer and demanded ₹ 15 lakhs to save his floor as well as floors of other occupiers. There exist serious contradictions in the statement of complainant vis a vis his complaint Ex. PW- 10/C. Moreover, regarding his allegations against A-1 he has turned hostile by stating that A-1 has demanded ₹ 15 lakhs to get the unauthorised construction in his building demolished and repair as per Building Byelaws after taking necessary permission from MCD. Whereas there is not even a whisper of such demand of fee by A-1 for getting property of complainant complied with Building Bye laws in complaint Ex.PW-10/C. In view of these reasons, the credibility of complainant has come under serious doubt and in the absence of any supporting evidence same cannot be believed. Moreover, even in the chain of events which prosecution has tried to prove, one of the important event was making of demand and acceptance of bribe amount by A-1 on behalf of A-2. But as discussed in above paras, prosecution has failed to prove on record any evidence against A-1. Accordingly, the conspiracy angel alleged by prosecution and demand of bribe amount by A-1 on behalf of A-2, remain unproved.
6.53. The other contention raised by Ld. PP CBI is that Section 20 of P. C. Act provides presumption where public servant accept gratification other then legal remuneration. It has been stated that since acceptance of bribe amount of ₹ 1 Lakh stands CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 61 of 63 established by A-1 being conduit of A-2, there arises a presumption in favour of prosecution. The law is settled that legal presumption under Section 20 is rebutable presumption. Before presumption under this section comes to the aid of prosecution, it is required to prove the acceptance of any gratification by the public servant or any other person on his behalf.
6.54. As discussed in above paras in this case, A-1 has admitted to have demanded ₹ 15 Lakhs and had accepted ₹ 1 Lakh. As stated by complainant this was on account of professional services for demolition, reconstruction as per Building Bye-laws of the property by A-1, being working as a professional architect. Same is the defence taken by A-1. Therefore, prosecution has failed to prove the necessary ingredients of acceptance of gratification by a government servant or any other person on his behalf which is one of the essential ingredients of Section 20 of P. C. Act.
6.55. Ld. counsel for A-2 has also assailed the sanction order for his prosecution given by PW-8 Sh. Janak Digal, Additional Commissioner (Establishment) MCD. Since prosecution has failed to prove its case beyond reasonable doubt, because of that there is no purpose left to discuss the contention raised by Ld. counsel for A-2 assailing the sanction order Ex. PW 8/1.
Conclusion 7.0. In view of the aforesaid reasons, it is held that prosecution has failed to prove its case beyond reasonable CC No. 02/16 CBI Vs. Naresh Kumar Arya & Anr. Page No. 62 of 63 doubt that both A-1 and A-2 acted in conspiracy and under this conspiracy A-1 made a demand of ₹ 15 Lakhs from the complainant and accepted ₹1 Lakh, against demand of this amount. Prosecution has also failed to prove beyond reasonable doubt that A-2 had demanded ₹ 15 Lakhs from the complainant and asked him to contact A-1 to settle the issue. Accordingly, both the accused are acquitted from the offences punishable under Section 120-B IPC read with Section 7, 13(1)
(d) read with Section 13(2) of P. C. Act. A-2 is also acquitted from the substantive offences punishable under Section 7 and 13(1)(d) read with Section 13(2) of P. C. Act.
7.1. Both the accused are directed to furnish personal bond for a sum of Rs. 20,000/- with one surety of the like amount in compliance of Section 437-A Cr.P.C.
7.2 File be consigned to record room.
Announced in open court (SANJAY GARG-I)
on 13th April, 2017 SPECIAL JUDGE-IV, CBI (PC Act)
TIS HAZARI COURTS, DELHI
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