TMI Blog2021 (6) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act as it is only hearsay. Therefore, the testimony of the approver is liable to be rejected only on this ground - the Ld. Special Judge committed error of law getting corroboration for the deposition of PW 9/Approval for his earlier statement under Section 164 Cr.P.C., which is prohibited under law. The approver stands as a special guilty witness and hence, Sections 145/157 of Evidence Act is not applicable. In the instant case PW 5 is bribe giver and he is an abettor for the offence of PW 9 for acceptance of bribe. The appellant could not give a direction to PW 5 to give money to somebody else. PW 9 could not be the agent/accomplice of the appellant since he is also a government servant - Since the appellant did not demand any money from PW 5, there was no question of having an accomplice to receive money, as the complainant met the appellant and got the opportunity to give money when he was alone in his chamber, and talk to complainant. The prosecution has failed to prove its case against the appellant beyond a reasonable doubt. Moreover, learned Trial Court has overlooked the material on record in favour of the appellant - Appeal disposed off. - CRL.A.692/2010 - - - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t) was pending adjudication before the appellant. During the course of hearing of the appeal on 28.02.1996, the appellant allegedly demanded ₹ 4000/- as bribe for deciding the said appeal in his favour. A raid was organized by the CBI official with the aid of electronic devices and with the help of public Panch witnesses, who were required by the raiding officer for listening to the conversation between the appellant and the complainant and simultaneously, the conversation transpired between them was also recorded on one micro cassette and other normal cassettes. The complainant was directed to pay the bribe amount to his reader Ravi Bhatt, UDC (co-accused), who was sitting in another room. The complainant allegedly gave the bribe money to Ravi Bhatt in his separate room, who was immediately apprehended by trap laying officer and recovered the bribe money from the left side pocket of his pant. 6. The appellant appeared in person and submitted that he and co-accused were arrested and on the next day i.e. 02.03.1996, they were produced before Special Judge, Delhi at 02:00 pm. The said Judge while granting bail on 02.03.1996 to both of them, reprimanded the C.B.I. officers an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particularly PW 5 Shri Gulshan Kumar Sikri did not depose at all about any bribe having been demanded by the accused, question of corroboration thereof, does not arise at all. Resultantly, there is a prayer for acquittal of the accused. 9. The Ld. trial court also noted in para-35 of the judgment as under:- ..PW-5 Shri Gulshan Sikri had also deposed that P.A. of the accused had been demanding ₹ 8000/- to ₹ 10,000/- significantly, the said complainant PW5 Shri Gulshan Kumar Sikri did not depose in the court that the bribe amount had been demanded by the accused on 28.2.1996 from him. Based on this testimony, the argument of Ld. Defence counsel is that prosecution has miserably failed to prove that any demand of bribe had been made by the accused on 28.2.1996 and therefore accused is entitled to be acquitted particularly when the S.P. concerned has not been examined. 10. It was submitted by the appellant that the Ld. Trial Court passed this order without due application of mind and in violation of all canons of justice and laws declared by Hon'ble Supreme Court and without invoking Section 20 of the P.C. Act, 1988. 11. To strengthen his arguments, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand..... 13. It was, accordingly, submitted by the appellant that in B. Jayraj (Supra), the Hon'ble Supreme Court acquitted the appellant therein though there was acceptance and recovery of money but the complainant turned hostile and did not support demand. He further submitted that the Hon'ble Supreme Court in the case of P. Satyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh Anr. (2015) 10 SCC 152 held that the proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. On the matter of demand and acceptance inferential deduction is not permissible in law. Further held that in reiteration of the gold principle which runs through the web of administration of justice in Criminal cases. Moreover, in Sujit Biswas vs. State of Assam, (2013) 12 SCC 406 , it is held that suspicion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h, 1985 SCC (Supp.) 611 that 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 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. The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence direct or circumstantial. Every possibility or tempering with or erasure of a part of a tape recorded statement must be ruled out otherwise it may render the said statement out of context and therefore, inadmissible. The statement must be relevant according to the rules of Evidence Act. The recorded cassette must be carefully sealed and kept in safe or official custody. The voice of the speaker should be clearly audible and not lost or distorted by other-sounds or disturbances. 17. Appellant further submitted that the tape was not sealed on the spot/office of the appellant rather it was taken outside to Palika Bazar, Conn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been passed after application of mind and considering all the material and document which were placed before the Sanctioning Authority including the transcription of the audio cassette. Further, Ex. PW1/A clearly shows that the complete facts constituting the offence under Section 7 and 13(1)(d) r/w 13(2) of the Act, were before the Sanctioning Authority. 21. PW 2, Rajinder Singh, SSO Grade-I, CFSL had examined the voice in the cassette marked Q1 and S1 by auditory and voice spectrographic technique and found that the voice in cassette Q1 and S1 are similar in respect of their acouspic cues, narrowband characteristics and fundamental frequency, hence, gave report that the voice in cassette Q1 and S1 are probable voice of same person and proved the Ex PW2/A. 22. PW 3, Rakesh Garg, Ld. MM, Tis Hazari Court proved the statement of PW-9 Sh. Ravi Bhatt (Ex PW3/A) recorded under section 164 Cr.P.C. after satisfying himself that PW 9 is giving statement voluntary. The aforesaid witness further proved application Ex PW3/B for recording statement under section 164 Cr.P.C. 23. PW 4, Praveen Kumar, Ld. MM, Tis Hazari Court had granted the pardon to the PW 9, Mr. Ravi Bhatt after cros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed him to the room of the appellant and requested him to decide his case after taking ₹ 3000/-. The appellant uttered the words yeh bhindi bazar hain, jahan approach se kaam karana chahte ho. main apka case dismiss kar dunga . Then PW 9 came out of the room of the appellant. After about 5 minutes Mr. Gulshan came to PW 9 and handed over ₹ 4000/- saying yeh sahab ko de dena, baat ho gayi hain . Further submitted, when the PW 9 was present in the room of the appellant and he was snubbing the complainant but the appellant also gave signal to PW 9 to accept the money. After taking the money from Mr. Gulshan, PW 9 kept the same in his left pant pocket and when PW 9 was going to the room of the appellant alongwith the money, he was trapped by the CBI officials, namely, Mr.Negi and Mr. Kapoor to the room of the appellant. 28. PW 10, Kailash Chand, (Retd.), the then Section Officer, NDMC who is independent witness and he proved the pre and post proceeding and also proved the recovery memo Ex.PW5/D, personal search memo of the appellant Ex. PW8/A, tainted GC notes Ex.PW1/1 to PW1/40, bottles Ex.P2 and Ex.P-3, cloth wrappers Ex.P -and Ex.P-5 and pant wrapper Ex.P-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that from bare perusal of documents on record specially written complaint Ex. PW5/A lodged by the complainant, PW 5 clearly shows demand made by the appellant for passing favourable order in favour of the complainant. After receipt of aforesaid complaint Sh. Dharamveer Negi, Sub Inspector, Crime Branch, Delhi (PW 14) secretly verified the genuineness of the complaint from his secret sources and he found the complaint to be genuine. Thereafter, trap was laid. PW 9 Mr. Ravi Bhatt, who later became approver and appellant were arrested. The pre tarp and post trap proceedings have been proved by the prosecution by Ex.PW5/B, Ex. PW5/C, Ex. PW5/D and Ex. PW14/B. 36. The demand and acceptance was further proved from the deposition of PW 9 and PW 14. PW 9 (Mr. Ravi Bhatt) has proved entire case on material aspects. PW 14 in his deposition has categorically stated I was hearing the conversation through earphone and I heard that the complainant was requesting the accused for reducing the amount of bribe from 4,000/- to 3,000/-. I also heard the accused directed the complainant to hand over the bribe to his PA. 37. Further submitted that despite the fact that PW 5 turned hostile, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or sustaining the allegation of an offence under Section 13(1)(d) of the PC Act as in force prior to 26th July 2018, is without merit .. 39. It was submitted by learned SPP that the appellant has sought acquittal on the ground of minor discrepancies in the investigation. The Hon ble Supreme Court in case of Zindar Ali SK vs State of West Bangal Ors. MANU/SC/0141/2009 has categorically held that defence cannot take advantage of bad investigation, when there is a clinching evidence. 40. Further submitted that the appellant has also pointed out some minor contradictions for seeking acquittal. It is settled proposition of law that minor contradictions in prosecution case can be ignored if cogent evidences are available on record for conviction of the accused. He relied upon the judgments passed in case of Krishna Mochi Ors vs State of Bihar MANU/SC/0327/2002 and Girwar Singh Ors. Vs CBI MANU/DE/4551/2015. 41. Further the Supreme Court in case of Subramanian Swamy vs Manmohan Singh Ors. MANU/SC/0067/2012 held as under: Today, corruption in our country not only poses a grave danger to the concept of constitutional governance, it also threatens the very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng ₹ 8000/- to ₹ 10,000/- for paying the same to the officer . Further, in his cross-examination PW 5 stated that my Complaint was dictated by Mr. Negi again said by Mr. Peshin of CBI that they are not meant for clerical staff and I should name the official in the complaint. Accused did not demand the money directly from me . Since the SP Mr. Kaumudi was not examined by the prosecution and the complainant PW 5 deposed against his own complaint /FIR and the PW 10 in his cross-examination stated in the First para as follows: The Complaint had already been written and it was only shown to us. I do not know the name of the inspector who is holding their complaint. 46. On cross-examination, by PP of CBI, the witness, PW 5, stated (at page 3) it is correct that I met P.C. Misra on 28.02.96 and after considering my documents he reserved the order, but it is not so that he demanded ₹ 4000/- from me for favorable order in my case. 47. In cross-examinations by the defence counsel, PW 5 stated that accused did not demand the money directly from him. Regarding demand during trap, PW 5 stated that the appellant did not demand any money from him. Further, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in-chief that complainant first contacted Mr. Bhatt, PA of accused who took the complainant in the room of the accused P.C. Misra . This point got confronted in cross-examination by the defence counsel Mr. Sunil Mehta as follows: It is correct that the complainant at first gone to the room of the PA of the accused, but it is incorrect that thereafter he came back to him. The witness has been confronted with the portion A to A of ex. PW-5/D where it is recorded that the complainant came back after sometime and informed that Mr. Ravi Bhatt, UDC/reader was in his room (Ravi Bhatt's) and he shall be proceeding inside the room of P.C. Misra shortly. The witness is confronted with potion of A to A of statement Ex.PW-14/C and witness admits the correctness thereof. I did not enquire from the complainant as to why he did not come to the room of the P.C. Misra for handing over the money and also about his purpose of visit to the room of Ravi Bhatt. It is correct that in the recovery memo Ex.PW5/D it was not mentioned that the complainant first contacted Mr. Bhatt, PA to the accused who took me to the room of accused, P.C. Misra. It is correct that I have not mentioned in the recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nspector CBI/TLO 59. Further important to mention that the prosecution did not examine Shri V. Thkaran, Inspector, CBI (listed Witness No. 14), Shri T.V. Kuriahose, Sub Inspector, CBI (listed witnessed No.15) also the CBI did not examine the person who prepared copy of the tape of the voice recording in Palika Bazar Market, Connaught Place, New Delhi and also the Malkhana Mohair who kept the recorded typed in custody. In addition, the SP, CBI Shri Kamadi Komal who ordered registration of FIR RC No. 15(A) 96, was also not examined. All these factors are against the prosecution and creating serious doubts on the veracity of the prosecution story. 60. In view of above, the Ld. Special Judge committed error of law getting corroboration for the deposition of PW 9/Approval for his earlier statement under Section 164 Cr.P.C., which is prohibited under law. The approver stands as a special guilty witness and hence, Sections 145/157 of Evidence Act is not applicable. 61. In addition to above, PW 17, A.K. Kapur, Inspector, CBI/IO in cross-examination stated that I got this application Ex. PW-17/A typed in CBI Office at Tis Hazari. I did not consult the public prosecutor before ty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ictory to each other and there is no corroboration of any kind. Thus, this is a material contradiction and cannot be relied upon to see the transaction between PW 5 and PW 9. 64. Since the appellant did not demand any money from PW 5, there was no question of having an accomplice to receive money, as the complainant met the appellant and got the opportunity to give money when he was alone in his chamber, and talk to complainant. 65. In the case of Surjit Biswas Vs. State of Assam, (supra), the Supreme Court observed in para 6 as under: 6. Suspicion, however grave it may be, cannot take the place of proof .. 66. Further observed in Para 7 8 that if two views are possible the view which is favourable to the accused should be adopted. This principle has a special relevance in cases where in the guilt of the accused is sought to be established by circumstantial evidence. The circumstances should be of a conclusive nature and tendency. 67. The case is filed by CBI U/ s 7 and 13 (1)(d) of PC Act, 1988 against the appellant. This Court in the case of L.K. Advani Vs. CBI, 1997 (4) Crime 1 analysis Section 7 in Para-49 50 and held as under: 49 a duty has be ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
