Delhi District Court
C B I vs Mukesh Kumar on 30 January, 2025
IN THE COURT OF MS. SUNENA SHARMA
SPECIAL JUDGE : CBI-20 (PC ACT): ROUSE AVENUE
COURT : NEW DELHI
CBI Case No. 62/2019 (1/19)
RC No.DAI-2018-A-0031/CBI/ACB/New Delhi.
CNR No. DLCT11-000151-2019
Date of Institution : 24.12.2018
Final arguments concluded on : 24.01.2025
Judgment pronounced on : 30.01.2025
In the matter of:
Central Bureau of Investigation (CBI)
5B, 3rd Floor, CGO Complex,
Lodhi Road, New Delhi.
Versus
Mukesh Kumar
S/o Late Sh. Ram Premi
R/o 1/191, Ground Floor,
Subhash Nagar, New Delhi
....... Accused no. 1
Shyam Sunder
S/o Late Sh. Nanak Chand
R/o 325, Block F-II, Madangir, Phase-II
Dr. Ambedkar Nagar.
........ Accused no. 2
INDEX
S.No. Particulars Page no.
1.
Factual Matrix 3-8 2. Cognizance/Charge 8 3. Prosecution Evidence 8-10 (I) Complainant and Independent 10-31 Witnesses (ii) CBI witnesses of verification and 31-42 CBI Case No. 62/2019 (1/19) Page no. 1/134 trap proceedings (iii) Expert witnesses from CFSL 42-46 (iv) Witness to voice identification of 46-48 accused no.1 (v) Witness to CDR and related 48-50 documents pertaining to phone instruments/numbers used by complainant and accused at the relevant time (vi) Witnesses pertaining to Sanction 50 under Section 19 of PC Act, 1988 (vii) Witnesses to the Inspection 50-54 conducted on 14.09.2018 (viii) Other formal Witnesses 55-57 4. Statement of Accused/Defence Evidence 57-58 5. Prosecution Arguments 58-67 6. Defence Arguments. 67-73 7. Analysis of material by the Court 73-90 (i) Pre-complaint Demand 90-93 (ii) Post-complaint Demand raised at 94-105 the time of Verification. (iii) Demand raised at the of Trap 105-114
(iv) Discrepancies in the Transcripts of 114-116
Q1, Q-2 and Q-3.
(v) Acceptance and Recovery of 116-122
tainted money.
(vi) Validity of Sanction under Section 122-127
19 of PC Act.
(vii) Admissibility Voice Identification. 127-134
8. Conclusion 134
Judgment
1. The instant chargesheet is the outcome of the
case FIR/RC DAI-2018-A-0031/CBI/ACB/New Delhi dated
25.09.2018 registered under Section 120-B read with
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Section 7, 7A of Prevention of Corruption Act, 1988
(hereinafter referred as PC Act).
Factual Matrix
2. The aforementioned FIR/RC was registered on
the basis of a joint complaint dated 24.09.2018 filed by two
brothers namely Ramesh Kumar and Naresh Kumar. As per
the complaint, the allegations were that accused Mukesh
Kumar (Public Servant/accused no.1), Assistant
Commissioner, Food & Supply Department (South), GNCT,
Delhi and accused Shyam Sunder (Private Person/accused
no.2), in furtherance of their common intention had a raid
carried out on 14.09.2018 in the Fair Price Shop No.9230
belonging to family of complainants and seized sale & stock
register from the shop without issuing any receipt thereof.
The license of said Fair Price Shop was in the name of
Nirmala Devi, the wife of complainant Rajesh Kumar. It is
also alleged that on 17.09.2018, the accused no.2, who
often used to meet the complainants in the office of accused
no.1, gave a call to the complainant Naresh Kumar and
demanded a bribe of Rs.1,50,000 in connection with the raid
conducted in their ration shop.
3. Subsequently, on 21.09.2018, accused Mukesh
Kumar met the complainant Naresh Kumar in his office and
demanded Rs.50,000 in order to save him from the
prosecution and cancellation of license of their Fair Price
Shop. Since the complainants were not willing to pay bribe,
they lodged a joint complaint with CBI on 24.09.2018. The
complaint was assigned to SI Umesh, CBI, ACB (verification
officer), who joined independent witness Gaurav Sharma for
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the purpose of verification and got a phone call made on the
mobile phone of accused Shyam Sunder who asked the
complainant Naresh Kumar to meet him on the next day i.e
on 25.09.2018 in the office of accused Mukesh Kumar. The
said conversation was recorded in the Memory Card Q-1
through DVR.
4. On 25.09.2018, as directed by accused Shyam
Sunder, complainant Naresh Kumar met accused Mukesh
Kumar in his office and requested him to reduce the bribe
amount. The complainant was assured not to worry and
through gesture, he was asked to talk to accused Shyam
Sunder, who took him to the adjoining room wherein, he
demanded Rs.70,000 and told that Rs.50,000 was for
Mukesh Kumar and Rs.20,000 was for the Inspector. After
that when complainant and accused Shyam Sunder came
out of the adjoining room, complainant was again assured
by accused Mukesh Kumar by uttering that he would fight
for him (complainant) till end. The entire conversation
between the complainant and the accused persons was
recorded in the memory card Q-2 through DVR. The
verification proceedings of each day were recorded in the
respective verification memos dated 24.09.2018 and
25.09.2018.
5. After verification, the aforementioned RC No.
DAI-2018-A-0031/CBI/ACB/New Delhi was registered on
25.09.2018. The investigation of said FIR was entrusted to
Insp. C.M.S. Negi, who constituted the trap team for laying
the trap. As per the instructions of the TLO, the complainant
arranged Rs.50,000 in the denomination of Rs.500 each. The
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GC notes were applied with the phenolphthalein powder,
demonstration of which was also given to the trap team for
showing its reaction with the solution of water and sodium
carbonate. The trap was laid and accused Shyam Sunder
was caught red-handed by the trap team while demanding
and accepting the tainted amount of Rs.50,000/-.
6. After his apprehension by the trap team,
accused Shyam Sunder disclosed that the bribe amount was
accepted by him on the instruction of accused Mukesh
Kumar. On the asking of CBI, accused Shyam Sunder made
some telephonic calls to accused Mukesh Kumar, who
initially did not pick up the calls but after sometime, he
picked up the call and informed that he was in a meeting.
After some time, a call was again made to accused Mukesh
Kumar and during said call, accused Shyam Sunder informed
him about having received Rs.50,000, to which accused
Mukesh Kumar replied “theek hai”. The said calls were also
simultaneously recorded in the memory card Q-3 through
DVR by keeping the mobile phone of accused Shyam Sunder
on speaker mode.
7. Thereafter, the accused Mukesh Kumar was
apprehended from his ITO office, where a search was also
conducted and File No. FPS9320 alongwith other documents
were seized from his office.
8. The entire sequence and manner of execution of
pre-trap and post-trap proceedings were recorded in the
respective memos. During investigation, one mobile phone
of i-phone bearing no. 8178967723 (Jio) and one mobile
phone of Samsung having two SIM numbers, bearing
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number 8826766542 (Airtel) and 9213816186 (Jio) were
recovered from the personal search of accused Shyam
Sunder. One mobile phone Vivo bearing No. 9811988484
was also seized on the personal search of accused Mukesh
Kumar. The message history of SMS and WhatsApp
messages exchanged between accused Mukesh Kumar and
co-accused Shyam Sunder was photographed from the
aforementioned mobile phones of the accused and printouts
of the same were taken.
9. During investigation, specimen voice of both the
accused were recorded in memory card S-1 and S-3
respectively, while the complainant’s specimen voice was
recorded in a separate memory card S-2. The sealed bottles
of right hand wash and left hand wash of accused Shyam
Sunder, which were prepared after his apprehension with
the tainted money, were sent to CFSL for chemical
examination. The CFSL report confirmed the presence of
phenolphthalein in the washes.
10. During investigation, IO also collected CAFs,
CDRs, Cell ID Charts in respect of the aforementioned mobile
phones of the accused persons and also that of the
complainant from the concerned service providers and it
showed that the above-mentioned phone numbers were
issued in the respective names of the accused Shyam
Sunder and the complainant. The mobile phone of accused
Mukesh Kumar bearing no. 9821897761 was found to be
registered in the name of his daughter namely Sony. The
inspection report dated 14.09.2018 and the office order of
the Assistant Commissioner i.e. accused Mukesh Kumar
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herein to carry out the inspection at the aforementioned
shop of the complainants were seized from the FSO
(Enforcement), Food & Supply Department, Govt. of NCT of
Delhi vide production-cum-seizure memo dated 04.10.2018.
11. Investigation revealed that on 14.09.2018, a
surprise inspection was done by Sh. V.P. Singh, FSO Circle-
48 and Mehar Singh, FSI Circle-48 at FPS 9230 in the
presence of complainants and two independent witnesses
namely Mr. Vishal and Smt. Seema. During inspection,
records of FPS 9230 i.e. 1 stock register and 4 sale registers
were seized vide counting-cum-weightment memo dated
14.09.2018. The inspection report was thereafter, forwarded
to the Assistant Commissioner, Food & Supply, Enforcement
Branch, Mr. Mukesh i.e. accused no.1 herein, on 17.09.2018
for further action. During investigation, Sh. Arun Kumar
Mishra, Special Commissioner, Food & Supply Department
recognized the voice of accused Mukesh Kumar in the
questioned conversation vide voice identification memo
dated 08.10.2018.
12. Investigation also revealed that accused Shyam
Sunder was running a fair price shop no.5237, Circle-48,
Public Distribution System at 325, Ground Floor, F Block-II,
Madangiri, New Delhi and said shop also falls under the
jurisdiction of accused Mukesh Kumar with whom, accused
Shyam Sunder was in contact through calls, SMS and
WhatsApp messages.
13. After completing the investigation and obtaining
the sanction of Section 19 of PC Act against accused Mukesh
Kumar, the IO filed the chargesheet on 24.12.2018, against
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both the accused for the offences punishable under Section
120-B IPC read with Section 7, 7A of PC Act, 1988 and for
substantive offences thereof. As per record, cognizance was
taken by the court on the same date and both accused were
summoned.
Cognizance/Charge
14. Vide order on charge dated 10.07.2019,
sufficient material was found on record to frame the charges
of alleged offences against both the accused. In accordance
with the order dated 10.07.2019, a formal charge for the
offence of conspiracy punishable under Section 120-B IPC
read with Section 7, 7A of PC Act was framed against both
the accused. Besides that, accused Mukesh Kumar was
charged for the substantive offence punishable under
Section 7 PC Act, while accused Shyam Sunder was charged
for the offence punishable under Section 7A of PC Act.
Prosecution evidence
15. In order to prove its case, 20 witnesses were
examined by the prosecution and their examination-in-chief
is succinctly discussed herein below. All the witnesses were
cross examined at length by the Ld. Defence Counsels but,
as and when required, relevant part of the their cross-
examination shall be referred in the later part of this
judgment starting under the heading “Analysis of material
by the Court”. For the sake of convenience, witnesses have
been categorized in following eight categories.
(i) Complainant and Independent Witnesses
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(ii) CBI witnesses of verification and trap proceedings
(iii) Expert witnesses from CFSL
(iv) Witness to voice identification of accused no.1
(v) Witness to CDR and related documents pertaining to
phone instruments/numbers used by complainant and
accused at the relevant time
(vi) Witnesses pertaining to Sanction under Section 19 of
PC Act, 1988
(vii) Witnesses to the Inspection conducted on 14.09.2018
(viii) Other formal Witnesses
(i) Complainant and independent witnesses
1. Sh. Naresh Kumar (Complainant) (PW-1)
2. Sh. Rajesh Kumar (Complainant) (PW-2)
3. Sh. Gaurav Sharma (Independent witness) (PW-9)
4. Sh. Rahul Jaiswal (Independent witness) (PW-10)
(ii) CBI witnesses of verification and trap proceedings
5. SI Umesh Kaushik (verification officer) (PW-12)
6. Insp. C.M.S. Negi (Trap Laying Officer) (PW-19)
7. Inspector Kuldeep Sharma (IO) (PW-21).
(iii) Expert witnesses from CFSL
8. Ms. Deepti Bhargava Sr. Scientific Officer/Chemical
examiner) (PW-15)
9. Sh. Vijay Verma, Sr. Scientific Officer, Grade-II
(documents)-Assistant Chemical Examination, CFSL
(PW-16).
10. Sh. Mahesh Kumar Jain, Sr. Scientific Officer, CFSL
(Chandigarh) (PW-18)
(iv) Witness to voice identification of accused no.1
11. Sh. Arun Kumar Mishra, Special Commissioner, Food &
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Supply Department, Govt. of NCT of Delhi (PW-11)
(v) Witnesses to CDR and related documents
pertaining to phone instruments/numbers used
by complainant and accused at the relevant
time
12. Sh. Pawan Singh, Nodal Officer, IDEA (PW-3)
13. Sh. Kamal Kumar, Nodal Officer, Reliance Jio (PW-4)
14. Sh. Saurabh Aggarwal, Nodal Officer Vodafone
(PW-17)
15. Sh. Ajay Kumar, Nodal Officer, Bharti Airtel Ltd.
(PW-20)
(vi) Witnesses pertaining to sanction under Section
19 of PC Act, 1988
16. Sh. Vijay Kumar Dev, Chief Secretary, Govt. of NCT of
Delhi (PW-14)
(vii) Witnesses to the Inspection conducted on
14.09.2018
17. Sh. Vishal, Independent Witness to the Inspection
(PW-5)
18. Smt. Seema, Independent Witness to the Inspection
(PW-6)
19. Sh. Virender Pal Singh, FSO, Food & Supply
Department, Govt. of NCT of Delhi (PW-7)
(viii) Other formal witnesses
20. Smt. Nirmala, the Licensee of FPS-9230 (PW-8)
21. Sh. Randheer Kumar, FSO, Food & Supply
Department, Govt. of NCT of Delhi (PW-13)
(witness to the search conducted in the office of
accused no.1).
(i) Complainant and independent witnesses
16. PW-1 is complainant Sh. Naresh Kumar. As per
his version, Rajesh Kumar is his brother and the license of
FPS 9230 was in the name of wife of Rajesh Kumar, namely
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Smt. Nirmala. The said FPS at Neb Sarai, New Delhi was run
in the name of Rajesh Store since 2015 and he and his
brother were looking after the work of said ration shop. On
14.09.2018, at about 04.10 PM, FSO V.P. Singh and FSI
Mehar Singh carried out inspection of said FPS 9230 and
joined two persons namely Seema and Vishal of the locality,
who were cardholders and were taking rations from their
shop at that time. They also inspected the entire record of
their shop and seized the sale & stock register from there
after the inspection. A memo was prepared by the
inspecting officers and they took their signatures on the
same. The statement of his younger brother Rajesh Kumar
was also recorded. He identified the signature on the
statement (Ex.PW1/A) of his younger brother Rajesh Kumar
and he claimed that the same was written by him (PW-1).
PW-1 also identified the signatures of Vishal and Seema on
said document Ex.PW1/A.
16.01 PW-1 further deposed that next day, he went to
enquire about the outcome of the inspection at the office of
V.P. Singh, FSO in Asian Market and V.P. Singh asked him to
talk to accused no.1. Thereafter, on 17.09.2018, he (PW-1)
received a call from accused no.2 Shyam Sunder, who asked
him to pay Rs.1.5 Lakhs to accused no.1 to avoid
registration of FIR and cancellation of license of his shop.
However, PW-1 expressed his inability to pay such huge
amount and requested him to reduce the amount but, he
was asked to meet Mukesh Kumar. On 20.09.2018, PW-1
met Shyam Sunder at the office of Mukesh Kumar and he
was asked to come again on 21.09.2018 at 09.30 AM to
meet accused Mukesh Kumar.
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16.02 On 21.09.2018, PW-1 reached Asian Market at
09.30 AM and met both the accused in a car and told them
that he did not have the capacity to pay Rs.1.5 lakh, upon
which, he was told to arrange atleast Rs.50,000. After 2-3
days, PW-1 again met accused Shyam Sunder in the office
who asked PW1 to arrange additional sum of Rs.20,000 for
the FSO and the FSI. Finding no other option, PW-1 with his
brother went to CBI office on 24.09.2018 and lodged the
complaint Ex.PW1/B, which was written by complainant/PW-
1 and signed by both of them i.e. PW-1 and his brother i.e.
co-complainant/PW-2.
16.03 PW-1 further deposed that after filing of said
complaint, SI Umesh called an independent witness namely
Gaurav Sharma and sent him with PW-1 and his brother to
the office of Mukesh Kumar but he (Mukesh Kumar) was not
found available in the office. Before leaving the office of SI
Umesh, a DVR with a new memory card, was given to PW-1
on switch on mode and PW-1 was asked to keep it in his left
side pant pocket. PW-1 then gave a call to accused no.1
from the CBI office itself and he was asked to come to the
office of Mukesh Kumar on 25.09.2018 at 09.30 PM as
Mukesh Kumar was not in the office on that day i.e. on
24.09.2018. The said conversation was recorded in the DVR.
16.04. PW-1 proved on record the verification memo
dated 14.09.2018 (D-31 as Ex.PW1/C). PW-1 also correctly
identified his signature as well as of his brother on the
brown envelope as well as on the cover of the memory card
taken out from said envelope and proved brown envelope,
cover of memory card and the memory card(Q-1) as Ex.P1,
P2 and P3 respectively. The yellow envelope containing
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aforementioned brown envelope was brought in sealed
condition with the seal of CFSL and the same was exhibited
as Ex.P-4.
16.05. PW-1 deposes further that on 25.09.1998, he
went to the office of accused Mukesh Kumar at 9:30 a.m.
However, prior to that, he alongwith his brother Rajesh
Kumar had visited CBI office at 8-8:15 am where they met
witness Gaurav Sharma and SI Umesh. A fresh memory card
was taken by SI Umesh and its seal was opened and
thereafter, it was put in the DVR. The memory card was
blank and voice sample of Gaurav Sharma was recorded to
check its blankness. At about 8:50 am, they (PW-1, his
brother Rajesh Kumar, SI Umesh, witness Gaurav Sharma
and driver of SI Umesh) left the CBI office, in a govt. vehicle
and reached the Asian Market at about 9:30 am. SI Umesh
and his driver remained in the car, while PW-1, Rajesh
Kumar and Gaurav Sharma went to the office of accused
Mukesh. Before leaving the car, the DVR was switched on
and put in the pocket of the complainant/PW-1.
16.06 In the office, they met Shyam Sunder. As the
accused Mukesh was yet to reach the office, they all three
went downstair and apprised SI Umesh about the same. SI
Umesh took the DVR from PW-1 and switched it off. Though
it was left lying the pocket in the pant of PW-1. They all
waited downstairs for some time and again went up stairs at
about 10:30 a.m. Before going upstairs, DVR was again
switched on.
16.07 Thereafter, they all three reached the office of
Mukesh and were standing outside the office. By that time
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accused Mukesh had already reached his office. Thereafter,
accused Shyam Sunder called PW-1 inside the office, while
his brother Rajesh Kumar and the independent witness
Gaurav Sharma were asked to wait outside. After going
inside the cabin of Mukesh Kumar, PW-1 again requested
Mukesh Kumar to reduce the amount to which he told him
“matter khatam karo, baki sab baad ki baatein hai” and with
his hands and eyes Mukesh Kumar gestured towards Shyam
Sunder and asked the complainant/PW-1 to talk to him
(Shyam Sunder). Accused Shyam Sunder took him in a
small room inside the room of accused Mukesh Kumar,
where accused Shyam Sunder told him to give Rs. 70,000/-,
Rs. 50,000/- for accused Mukesh Kumar and Rs. 20,000/- for
FSO and FSI. Thereafter, PW-1 and accused Shyam Sunder
came to the room of Mukesh Kumar, where PW-1 again
requested Mukesh Kumar to reduce the amount but he told
him that “hum baithe hai tumare liye. Tumahre liye aakhir
tak ladge”. He again told PW-1 to arrange money quickly.
Thereafter, PW-1 came out of the cabin of accused Mukesh
Kumar and came downstairs with his brother Rajesh Kumar
and witness Gaurav Sharma. PW-1 briefed the CBI officer
about whatever happened inside the office. SI Umesh took
the DVR from PW-1 and switched it off and thereafter, they
all came back to the CBI office.
16.08 After return to CBI office, the FIR was registered
and PW-1 was told that further proceedings would be
conducted by IO CMS Negi. The memory card was taken out
from the DVR, recording of conversation contained therein
was taken on a laptop and same was heard by the entire
team. The memory card was thereafter, sealed and was got
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signed by PW-1, his brother Rajesh Kumar and independent
witness Gaurav Sharma. PW-1 proved the verification memo
dated 25.09.2018 as Ex. PW1/D (D-3). Similarly, he identified
the memory card of 8 GB make Sandisk, which was taken
out from a brown envelope contained in another yellow
envelope as Ex. P-5. Ex. P-6 and Ex.P-7 respectively are the
brown envelope and the cover of memory card.
16.09 PW-1 further deposes that he was already
carrying Rs. 50,000/- with him on 25.09.2018 and said
amount was in the denomination of Rs. 500/- (100 currency
notes). Another witness Rahul Jaiswal was also joined by CBI
officials. The money was counted and number of each
currency notes was noted on a paper upon which signatures
of PW-1 were taken. PW-1 correctly identified the handing
over memo and the list of currency notes as Ex. PW1/E
(colly) (D-4). CBI official Sudeep Punia counted the money
and sprinkled some powder on the currency notes and also
smeared the same powder on the fingers of the hand of
Gaurav Sharma. When Gaurav Sharma dipped his hands in
the water in a glass, the same changed its colour and
became pink. The water was thrown away and Gaurav
Sharma was asked to wash his hands. PW-1 was asked to
empty his pant pocket and currency notes were put in the
right pant pocket of his wearing pant with the directions to
PW-1 not to touch the currency notes.
16.10 The entire team came in two govt. vehicle and
the complainant’s Etios car to Asian market. When they
were on the way, PW-1 received a call from accused Shyam
Sunder to inquire as to when he (PW-1) would reach. PW-1
told him that he would be reaching within 5-7 minutes. At
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2:50 to 3 pm, PW-1 with the entire trap team left the CBI
office and on the way, again a call was received from
accused Shyam Sunder who inquired about the time to
reach. After reaching Asian market, the entire team of CBI
stationed downstairs, while PW-1 with his brother Rajesh
Kumar and witness Gaurav Sharma went to the office of
Mukesh, where they met Shyam Sunder but accused Mukesh
was not present in said room. PW-1 and his brother Rajesh
was called inside the room but the independent witness
Gaurav was asked to wait outside. While PW-1 and his
brother Rajesh was sitting in the room of Mukesh, PW-1
again asked Shyam Sunder, if the amount of bribe could be
reduced and told him (Shyam Sunder) to take a total sum of
Rs. 50,000/- out of which Rs. 40,000/- could be given to
Mukesh and remaining Rs. 10,000/- for FSO and FSI. Upon
this Shyam Sunder became angry and asked “laao paise
nikalo”. Accordingly, PW-1 took out money from his right
side pant pocket of his wearing pant and gave it to Shyam
Sunder. Shyam Sunder took money in his right hand and
then in his left hand.
16.11 PW-1 further testified that as instructed by CBI
officials, his brother Rajesh gave a missed call on the
mobile phone of TLO Mr. Negi. After a short while, entire CBI
team came to the room and closed the door from inside.
Accused Shyam Sunder threw the money on the floor but, SI
Umesh and Mr. Negi caught hold of the hand of accused
Shyam Sunder. Witness Rahul Jaiswal picked up the money
at the instance of CBI and counted them and kept them in
an brown envelope. Accused Shyam Sunder was made to
wash his right hand in the bottle of water. The water turned
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pink. The bottle was sealed. Similarly, left hand wash was
taken and said bottle was also sealed. Accused Shyam
disclosed that he had accepted money at the instance of
accused Mukesh Kumar.
16.12 Thereafter, as instructed by TLO, Shyam Sunder
made a call to accused Mukesh Kumar, who did not pickup
his call. After some time accused Mukesh Kumar called up
and informed accused Shyam Sunder that he was in a
meeting and would call back later. After sometime, accused
Mukesh gave a call on the phone of Shyam Sunder, which
was kept on speaker mode. During said call, accused Shyam
Sunder told accused Mukesh “sir 50,000/- rupee aa gaye
hai”, to which, accused Mukesh replied “theek hai”.
16.13. PW-1 further deposed that before proceeding for
trap, besides bribe amount, a DVR was also kept in the left
side pocket of his wearing pant and in the DVR a blank
memory card was also placed after recoding the voice of
witnesses Rahul Jaiswal and Gaurav Sharma. He deposed
further that at the time of demonstration regarding powder
sprinkled on the bribe amount, the team members were
instructed not to touch the tainted money and were made to
wash their hands. The calls received from the accused on
the way to Asian Market were also recorded in the DVR by SI
Umesh as the phone of PW-1 was put on speaker mode and
the conversation was heard by everyone. After the trap of
accused Shyam Sunder, a site plan was also prepared by CBI
officials.
16.14. PW-1 further deposed that the numbers of the
currency notes which were picked up from the room of
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accused Mukesh were tallied with the numbers mentioned in
memo Ex. PW1/E by independent witness Rahul Jaiswal.
After sealing the currency notes and bottles of coloured
water, another team of CBI officials was constituted and PW-
1 was sent with said team to Food and Supply Headquarter
at ITO, where accused Mukesh was having his office on the
2nd floor. After reaching said office of Mukesh Kumar, CBI
officials seized everything, which was there and did not
allow accused Mukesh to make any phone call. The files
pertaining to the ration shop of PW-1 were also called and
seized by CBI officials, at about 8:30 to 9 p.m proceedings
were completed. CBI officials with PW-1 and Mukesh Kumar
came to CBI office, where the recordings of memory card
were heard, memos were prepared, DVR and the memory
card were sealed. Search of accused Mukesh was
conducted. PW-1 proved the recovery memo dated
25/26.09.2018 as Ex PW1/F. He further deposed that on
05.10.2018, he had again visited the CBI office and in his
presence the recordings were heard and transcripts were
prepared.
16.15 As per PW-1, he again visited CBI office on
08.10.2018 and on that day, recorded conversation was
again heard on the laptop in his presence and in the
presence of Rahul Jaiswal and Gaurav Sharma. The
transcription of said recorded conversation was got prepared
by the IO through some stenographer. On 08.10.2018, PW-1
and his brother Rajesh had also taken witnesses Seema and
Vishal with them to identify their signatures on Ex. PW1/A.
However, the said two witnesses denied their signatures on
Mark PW1/P, prepared by FSO on 14.09.2018. PW-1
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identified his signature on the transcript-cum-voice
identification memo Ex. PW1/G as well as Ex. PW1/H (Colly)
containing the transcription of Q-1, Q-2 and Q-3. PW-1
stated further that on 08.10.2018, Arun Kumar Mishra,
Special Commissioner, Food and Supply had also visited the
CBI office and he identified the voice of Mukesh Kumar and
Shyam Sunder in the aforementioned recorded
conversations. PW-1 correctly identified the currency notes
Ex. PW8A/1 to PW8A/100 produced from the sealed
envelope bearing the seal of CBI. As per PW-1, accused
Mukesh Kumar and Shyam Sunder were asked to give their
sample voice in the CBI office on 25.09.2018, but accused
Mukesh refused to give his sample voice, while accused
Shyam Sunder gave his sample voice voluntarily. The
sample voice of Rahul Jaiswal, Gaurav Sharma and that of
PW-1 and his brother Rajesh were also recorded.
16.16. During the course of his examination-in-chief,
recorded conversation of the respective files contained in
memory cards Q-1, Q-2 and Q-3 were played and he tallied
the conversation in said memory cards with their transcript
in the document Ex. PW1/H (colly). PW-1 also proved on
record the office search memo Ex. PW-1/I (part of D-18)
prepared at the time of search of the office of accused
Mukesh Kumar. The memory card containing the voice
sample of PW-1 and the DVR used to record the questioned
conversations were also identified by PW-1 during his
examination-in-chief as Ex. P-11 and P-13.
17. PW-2 Rajesh Kumar is the brother of PW-1
Naresh Kumar. Barring few minor discrepancies, the
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testimony of PW-2 is broadly similar to the version of his
brother PW-1. As per PW-2, on 25.09.2018, at the time of
trap, he was also present with his brother Naresh in the
office of Assistant Commissioner and it was in his presence,
accused Shyam Sunder demanded and accepted bribe
amount. As per his (PW-2’s) version, Gaurav Sharma was
not permitted to enter into the office of Asstt. Commissioner
and therefore, he (Gaurav Sharma) kept waiting outside the
office, while he (PW-2) and his brother (PW-1) went inside
the office.
17.01 During his examination, PW-2 proved entry-cum-
search-cum-recovery-cum-counting-cum-weighment memo
as Ex. PW2/A (part of CFSL report page 9/C). PW-2 further
proved on record daily sales register (04 in number) for
September 2018 carrying entries of period from 16.08.2018
to 02.09.2018, 03.09.2018 to 06.09.2018, 07.09.2018 to
10.09.2018 and 12.09.2018 as Ex. PW2/B1 to Ex. PW2/B4.
PW-2 also identified the stock register, which was handed
over by him to Sh. V.P.Singh and Mehar Singh and exhibited
the same as Ex. PW2/C. He also identified his signatures at
point A on the first page of said register. During his
deposition, PW-2 also identified his signatures on the
production-cum-seizure memo vide which the two daily sale
registers were seized from the aforementioned shop of the
complainant. Said memo was exhibited as Ex. PW2/D (D-20).
17.02 During examination in chief, PW-2 also identified
his signatures on the documents already exhibited during
the examination of PW-1, i.e. PW-1/A, Ex. PW1/B, Ex. PW1/C,
Ex. PW1/D, Ex. PW1/E, PW1/F, Ex. P-1, Ex.P-2, Ex. P-3, Ex. P-
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5, Ex.P-6 and Ex. P-7.
18. PW-9 is the independent witness Sh. Gaurav
Sharma, UDC, ESIC Headquarters. He deposed that on
24.09.2018, he went to CBI office in connection with the
present case and Duty Officer introduced him with SI
Umesh. Complainant Naresh Kumar was also present and
they all were introduced with each other and apprised about
the contents of complaint, upon which verification was
conducted by SI Umesh. As regard the mode and manner of
the verification conducted on 24.09.2018 and 25.09.2018,
PW-9 has deposed on the lines of the version of complainant
except that he did not mention about the alleged visit of
complainants to the office of accused Mukesh Kumar at
Asian Market on 24.09.2018 as alleged by PW-1 and PW-2 in
their depositions before the Court. As per version of PW-9,
only a telephonic call was made by PW-1 to accused Shyam
Sunder to meet him on the next date i.e. on 25.09.2018.
18.01 As per his version, on 25.09.2018, he reached
CBI office, where Naresh and Rajesh were also present and
they met SI Umesh, who brought the same device (DVR
used on 24.09.2018) with a new memory card, which was
checked/verified to be blank. He was directed by SI Umesh
to pretend to be the nephew of Naresh Kumar and to visit to
the place wherever required. PW-9 further deposed that SI
Umesh, Naresh, his brother Rajesh and the driver reached at
Asian market, Pushp Vihar, New Delhi at about 9:30 am and
SI Umesh switched on the said DVR/device and kept the
same in the pocket of Naresh Kumar and thereafter, he
alongwith Naresh and Rajesh went to the building of Food
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and supply Office where they came to know that accused
Mukesh Kumar had not yet reached the office. Therefore,
they returned to the place where SI Umesh was standing. At
10 am, he (PW-9) alongwith Naresh and Rajesh again went
to said office and after few minutes, Shyam Sunder reached
there and they exchanged some talks and thereafter,
accused Mukesh Kumar also reached there and they all
started entering in the cabin of Mukesh Kumar but he and
Rajesh were stopped by Shyam Sunder outside the cabin by
saying that only one person should go inside. After few
minutes, complainant Naresh Kumar came out of the cabin
and shared with them what transpired between him and the
accused.
18.02 PW-9 further deposed that complainant Naresh
Kumar shared that Shyam Sunder had demanded Rs.
70,000/- out of which, Rs. 20,000/- was to be paid to
Inspector and Rs. 50,000/- to Mukesh Kumar and in the
presence of Mukesh Kumar, Shyam Sunder asked him to
arrange atleast Rs.50,000/- and further assured that nothing
would happen in said matter against Naresh Kumar and he
will be saved. Thereafter, Naresh and Rajesh came back to
SI Umesh, where SI Umesh switched off the DVR and they
came back to CBI office, where SI Umesh took out memory
card from said device and sealed the same vide a memo,
which was signed by him (PW-9). PW-9 identified his
signatures on the verification report Ex. PW1/D. PW-9
deposed that before sealing the memory card (Q-2), SI
Umesh had copied its data on the laptop.
18.03 It is further deposed by PW-9 that thereafter, a
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trap team was constituted, in which independent witness
Rahul Jaiswal, one Sh. Negi and one Punia Ji were also
joined. The team was briefed about the trap process and a
demonstration was also given of phenolphthalein (PPL)
powder and liquid solution. Deposition of PW-9 with regard
to pre-trap proceedings is also more or less similar to the
deposition of complainant/PW1 and he also identified his
signature on the pre-trap memo Ex. PW1/E. PW-9 deposed
that thereafter, they all proceeded to Asian Market, Food
and Supply office and he, Negi Ji and SI Umesh sat in a
vehicle driven by Naresh and enroute, some calls from Sh.
Shyam Sunder (i.e your co-accused) were also received by
Sh. Naresh Kumar on his phone and in another vehicle, the
remaining team members followed them.
18.04 He further deposed that, upon reaching the spot,
he (PW-9), Naresh and Rajesh proceeded to the office of
Food and Supply Department. As per PW-9, Naresh and
Rajesh met accused Shyam Sunder outside the office of
accused Mukesh Kumar and then accused Shyam Sunder
took Naresh Kumar inside the cabin while rest waited
outside. After few minutes, Rajesh gave a missed call to
Negi ji and thereafter, the entire team members rushed to
the spot and they entered into the cabin of accused Mukesh
Kumar, where accused Shyam Sunder was found sitting on a
chair and the independent witness Rahul Jaiswal was also
present. One wrist of Shyam Sunder was caught hold by
Punia Ji and the other was caught hold by SI Umesh and the
packet/gaddi of Rs. 50,000/- was lying on the floor. Upon
being challenged by CBI team for having accepted the bribe
amount, accused Shyam Sunder became perplexed and
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disclosed that he had taken said amount at the instance of
accused Mukesh Kumar. Thereafter, hand washes were
prepared by asking the accused Shyam Sunder to dip his
hands into the water solution, which turned pink and the
said solution was sealed separately.
18.05 PW-9 further deposed that as directed by CBI
team, Shyam Sunder made few mobile calls to accused
Mukesh Kumar, which were not picked up but after few
seconds, Mukesh Kumar called back and informed that he
was busy in a meeting and as Shyam Sunder informed
regarding receipt of bribe amount of Rs. 50,000/-, Mukesh
Kumar replied “Theek hai”. The currency notes were
counted and tallied with their numbers and sealed with
other articles. One team of CBI went to the ITO office to
apprehend Mukesh Kumar. All the documentation work was
done and signatures were taken and due to late evening
hours, remaining proceedings were done in CBI office. On
reaching CBI office, personal search of Shyam Sunder was
conducted and his mobile phone was seized vide arrest cum
personal search memo Ex. PW9/A.
18.06 During examination-in-chief, PW-9 identified his
signatures on Ex. PW1/F, Ex. PW9/B (LHW) and Ex. PW9/C
(RHW), currency gaddi Ex. P8A/1 to Ex. P8A/100 (as per
serial numbers mentioned in list Ex.PW1/E). He deposed
that the data of memory card of the Sony device was copied
on the system/laptop/computer of the CBI and the original
memory card was sealed. Thereafter, other team also
reached to the office alongwith Mukesh Kumar and
independent witness Rahul Jaiswal and personal search of
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Mukesh Kumar was also conducted and his mobile phone
was seized. The relevant Whatsapp chat/ messages of said
mobile phone of both the accused persons were seen and
printouts were taken and thereafter, sample voice of Shyam
Sunder was taken in a new memory card. Accused Mukesh
Kumar however, refused to give voice sample. PW-9 further
deposed that a new memory card was inserted into the DVR
device, in which his (PW-9) sample voice and that of Rahul
Jaiswal were taken and then the said memory card was
sealed separately. He proved on record the personal search-
cum-arrest memo of Mukesh Kumar as Ex. PW9/D by
identifying his signatures on the same; printouts of the
relevant Whatsapp message of accused Shyam Sunder and
accused Mukesh Kumar as Ex. Ex.PW9/E (colly) and PW9/F
(colly) respectively and site plan as Ex. PW9/G.
18.07 He further deposed that DVR was sealed with
other articles and after use, seal was handed over to
independent witness Rahul Jaiswal and in the CBI office, on
05.10.2018, his statement was recorded. On 08.10.2018,
the transcript Ex. PW1/H (colly) of voice recordings was
prepared and Sh. Arun Kumar Mishra, an officer from the
office of accused Mukesh Kumar also identified the voice of
accused Mukesh Kumar. PW-9 identified his signature on Ex.
PW1/G, Ex. P-1, Ex.P-2, Ex. P-3, Ex. P-5, Ex. P-6, Ex. P-7, Ex.
PX-1 Ex. PX-2 (colly). He also identified his introductory
voice in file no. 180925_0847, file no. 180924_1703 and file
no. 180925_1352; voice of another independent witness in
file no. 180925_1353. PW-9 further correctly identified the
voices of the speakers in the conversation (between accused
Shyam Sunder and Naresh) in file no. 180925_1403, file no.
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180925_1433 and file no. 180925_1446 and deposed that
the said conversations were recorded through the phone of
Naresh, which was put on speaker mode and at that time, he
(PW-9) was accompanying him. PW-9 also identified voices
in the conversation between Shyam Sunder and Mukesh in
file no. 180925_1543 and file no. 180925_1553 and deposed
that he (PW-9) was present at the time of said conversation.
19. PW-10 is Rahul Jaiswal. He is the second
independent witness, who was joined at the time of trap. As
per his testimony, on 25.09.2018, he was joined in the
investigation of this case by the CBI. On that day, when he
visited the CBI office, he was introduced to the team
member including the complainants and the independent
witness Sh. Gaurav. He was informed that the complainant
Naresh Kumar had filed a complaint against Assistant
Commissioner Mukesh, upon which the verification
proceedings were conducted on 24.09.2018 and 25.09.2018.
On 25.09.2018, it was confirmed that a demand of bribe was
raised from the complainant. PW-10 correctly identified the
complaint dated 24.09.2018.
19.01 He further deposed that demonstration of the
phenolphthalein powder (PPL powder) with sodium
carbonate solution was also given to him and thereafter, the
serial number of the curency notes brought by the
complainant were noted on a document and thereafter, PPL
powder was applied on said currency notes, physical
demonstration was given by asking him to touch said
currency notes and to dip his fingers into the glass of
solution which turned pink. Thereafter, he conducted the
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personal search of Naresh Kumar. Independent witness Sh.
Gaurav Sharma was directed to put the currency notes in
the pocket of the complainant and instructions were given to
the complainant not to touch said currency notes and to
hand over the same only upon the demand of the accused.
Thereafter, all the members of trap team washed their
hands and the used solution was thrown away.
20. PW-10 further deposed that one DVR and fresh
memory card was arranged and the introductory voice of
independent witness Gaurav’s was recorded. The witness
identified his signature on the handing over memo Ex.
PW1/E (D-4) prepared by the CBI before leaving for the spot.
As per his version, the CBI team proceeded to the spot in
two government vehicles and one personal car of the
complainant. The independent witness Gaurav was
accompanying the complainant in his car, while PW-10 was
sitting with the CBI official. They reached the office of the
Assistant Commissioner at Asian Market around 3:00 pm.
The complainant, his brother Rajesh and the independent
witness Gaurav went to the first floor while the team
members kept standing in disguise at the ground floor.
Instructions were given to the complainant to give the signal
by rubbing hands on his face or giving a missed call after
the transaction was over.
20.01 PW-10 further deposed that after 10-15
minutes, they received a missed call and immediately
thereafter, CBI team rushed to the spot and upon the signal
given by co-complainant Rajesh, they entered into the room,
where they found complainant Naresh with one person
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present, who was carrying money in his hands and when CBI
team caught hold of his hands, he dropped the money,
which fell down on the floor.
20.02 Careful perusal of his (PW-10’s) examination in
chief shows that his version with regard to post trap
proceedings, preparation of hand washes, site plan, seizure
of currency notes, is similar to the version of the other
independent witness Gaurav Sharma. PW-10 also deposed
that the inquires were made from accused Shyam Sunder,
upon which he disclosed that he had taken money on behalf
of the senior officer Mukesh Kumar. As per PW-10, accused
Mukesh Kumar was given a call by accused Shyam Sunder
as per the instructions of CBI officials by keeping his mobile
phone on speaker mode and the conversation of the
connected call was recorded on the DVR. During said call,
accused Shyam Sunder had disclosed that he had received
Rs. 50,000/- to which Mukesh said “theek hai”.
20.03 Thereafter, accused Shyam Sunder was brought
to CBI office and after some time, the other accused Mukesh
Kumar was also brought there by the other team of CBI. The
mobile phones of both the accused were taken and their
data of Whatsapp chats were transferred and their print outs
were taken. Witness correctly identified said printouts of
whatsapp chats as Ex.PW9/E-colly (D-6/III) and Ex.PW9/F-
colly. (D-6/IV).
20.04 He further deposed that the original memory
card upon which the conversation was recorded was taken
out and from it a copy was prepared, the contents of the
original data were heard by playing it on the laptop and
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thereafter, the memory card was sealed. Voice sample of
Shyam Sunder was recorded on a new memory card after
recording the introductory voice of Gaurav, while accused
Mukesh denied to give his voice sample. Voice sample of
complainant was recorded separately after recording the
introductory voice of Gaurav and PW-10. Both said memory
cards were also sealed, the DVR was also separately sealed
and said seal was handed over to him with directions to
keep it in safe custody. During examination, PW-10 had
brought said seal, which was taken on record. He correctly
identified the recovery memo Ex.PW1/F (D-5) bearing his
signature at point D.
20.05 PW-10 also identified his signatures on Arrest-
cum-personal search memo of accused Shyam Sunder Ex.
PW9/A and that of accused Mukesh Kumar at Ex. PW9/D. He
also identified his signature on the other already exhibited
documents such as Ex.PW9/B, Ex.PW9/C, Ex.P8A/1 to
P8A/100. PW-10 duly proved on record the envelop carrying
the DVR make Sony Ex. P-13 as Ex.PW10/A by identifying
his signature on the same.
20.06 PW-10 further testified that he had again visited
the CBI office on 05.10.2018 when his statement was
recorded and on 08.10.2018, when the transcripts of the
questioned recordings dated 24.09.2018 and 25.09.2018
were prepared. As per his version, he identified his own
voice and that of Gaurav, while the complainant Naresh
Kumar identified voice of Shyam Sunder and Mukesh Kumar
in said recorded conversation. As per his version, one senior
officer from the office of Mukesh Kumar had identified his
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voice (Mukesh Kumar) in the recorded conversation.
20.07. PW-10 identified his signatures on transcription-
cum-voice identification memo [already Ex.PW1/G and
Ex.PW1/H (colly) (D-8)] at points C on each page. PW-10 also
identified his signature on the SD card Ex. PX-2, which was
played in the court with the help of write blocker and as per
his version, same was found containing various files. In file
no. 180925_1352, PW-10 identified introductory voice of
Gaurav Sharma, in file No. 180925_1353 his own
introductory voice. On hearing the conversation contained
in file No. 180925_1403, file No. 180925_1432 and file No.
180925_1446, PW-10 identified the same to be the one
tallying with the transcription memo Ex. PW1/H of the
conversation between Naresh and Shyam Sunder. As per his
version, the conversation recorded in the file No.
180925_1451 was not recorded in his presence.
20.08 PW-10 also identified the recording of the calls
exchanged between Shyam Sunder and Mukesh contained
in file No. 180925_1543 and file No. 180925_1553. As per
his version, the said conversation is shown in the
transcription memo Ex. PW1/H at point G to H and I to J,
respectively. The SD card/memory card Ex. P-6 was also
played during the examination of PW-10 and PW-10 deposed
that file No. 180925_0927 contained the conversation
between Shyam Sunder and Naresh and file No.
180925_1034 contained the conversation between Shyam
Sunder, Mukesh and Naresh, transcribed in the transcription
memo Ex.PW1/H from point X to X. Similarly, the SD card Ex.
P-2 was played and found containing introductory voice of
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Gaurav in file No. 180924_1703 and the conversation
between Shyam Sunder and Naresh in file No. 180924_1705,
as transcribed in the transcription memo Ex.PW1/H from
point Y to Y.
20.09 PW-10 also correctly identified the specimen
voice of accused Shyam Sunder, that complainant Naresh
KUmar as well as the introductory voice of Gaurav Sharma
and his own concluding voice contained in said SD cards
taken out from the yellow colour envelop S-1 and S-2. PW-
10 proved on record Ex.PW10/B (colly), which is the brown
envelop taken out from yellow envelope S-2 from which the
SD card containing the specimen voice of accused Shyam
sunder was taken out. PW-10 also identified the specimen
voice of accused Mukesh in the two files contained in SD
card taken out from S-3.
(ii) CBI witnesses of verification and trap
proceedings;
21. PW-12 Sh. Umesh Kaushik is the verification
officer. He was posted as SI, CBI, ACB, New Delhi at the
relevant time. As per his version, on 24.09.2018 SP, CBI
introduced him to Naresh Kumar and Rajesh Kumar in the
CBI office and he was informed that they had lodged a
complaint against Sh. Mukesh Kumar, Assistant
Commissioner, Food & Supply Department, Pushp Vihar,
Delhi and Sh. Shyam Sundar, a private person for raising a
demand of bribe and said complaint was assigned to him for
verification. As regard the contents of the complaint
Ex.PW1/B (D-1) and mode and manner of verification
proceedings conducted by him for verification of the
complaint, his version is more or less on the lines of version
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of complainants PW-1 and PW-2, except that this witness
also did not disclose anything about the physical visit of
complainants to the office of Assistant Commissioner at
Asian Market on 24.09.2018 as alleged by PW1 and PW2.
21.01 Similar to the version of independent witness
Gaurav Sharma (PW9), PW12 also stated that upon a call
made by Naresh Kumar to Shyam Sunder, Naresh Kumar
was asked to visit the office next day at around 09.30 AM
and said call was recorded on DVR by keeping the mobile
phone of complainant Naresh Kumar on speaker mode.
Further, as per PW12, it was Naresh Kumar, from whom the
missed call was received by TLO after the transaction of
bribe. Even as per PW12, when Rajesh was asked to narrate
the incident after the trap of accused Shyam Sunder, he
informed that he was asked to remain outside. PW-12
deposed that it was Gaurav Sharma, who upon being asked
by CBI team to narrate the incident, corroborated the
complainant’s version.
21.02 PW-12 identified his signatures on certain
documents, which were already exhibited during deposition
of PW-1 i.e. Verification Reports dated 24.09.2018 and
25.09.2018, Ex.PW1/C (D-3/I) and Ex.PW1/D (D-3/II)
respectively, two memory cards with its plastic/paper
packing Ex.P-2 (Q-1) and Ex.P-6 (Q-2) containing the
recording of verification calls exchanged between
complainant Naresh Kumar and accused Shyam Sunder. PW-
12 further deposed that verification revealed demand of
bribe on the part of Sh. Mukesh Kumar, Assistant
Commissioner, F&S Office in connivance with Sh. Shyam
Sundar and therefore, an FIR was registered against them
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and entrusted to Insp. CMS Negi for investigation.
21.03 PW-19 Inspector C.M.S. Negi, is the Trap Lying
Officer. He proved on record FIR Ex.PW19/A (Colly.) (D-2) by
identifying the signature of SP Dharambir Singh on the same
and deposed that he had worked with him and seen him
writing and signing during course of his duties. As per his
deposition, on 25.0920218, he was handed over the
aforementioned FIR by the Incharge SP Dharambir Singh
with the directions to investigate the same. The said FIR
was registered on the basis of a joint complaint filed by two
brothers namely Naresh Kumar and Rajesh Kumar. The
complaint was filed in connection with the demand of bribe
of Rs.50,000/- raised from them by Asstt. Commissioner,
Food and Supply Office Sh. Mukesh Kumar. The verification
of said complaint carried by Sub Inspector Umesh Kumar on
24.09.2018 and 25.09.2018 established that a demand had
been raised by accused Mukesh Kumar through a private
person i.e. accused Shyam Sundar, who acted as a conduit.
21.04 PW-19 testified that for the purpose of
investigation, he formed a trap team of CBI officials
consisting of Insp. N.C. Naval, Insp. Raman Shukla, Insp.
Parveen, Insp. Sudip Punia, Insp. Vikas Pannu, SI Umesh and
some more CBI officials. During trap, two independent
witnesses namely Gaurav Sharma and Rahul were also
joined. The complainants were also present and Gaurav
Sharma was asked to act as a shadow witness. All the team
members were read over the contents of verification memos
and the complaint. The distinctive number of Rs. 50,000/-
brought by the complainant were noted on a separate sheet
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and were tallied by the independent witnesses.
Demonstration regarding chemical reaction of
phenolphthalein powder with a solution of sodium carbonate
and water was given by Insp. Sudip Punia to the trap team.
Thereafter, GC notes were treated with phenolphthalein
powder by Insp. Sudip Punia. Demonstration of
phenolphthalein powder was given. As the accused was in
touch with complainant Naresh Kumar, he (Naresh Kumar)
was asked to carry the tainted money. After carrying
personal search of Naresh Kumar, independent witness
Gaurav kept the tainted money in the right side pant pocket
of the complainant Naresh Kumar, who was asked not to
carry anything except the mobile phone. Complainant was
further asked not to touch the said GC notes and to hand
them over to the accused or to anyone as specified by the
accused on their specific demand.
21.05 The DVR and the brass seal, used during
verification proceedings were taken from SI Umesh Kumar
and independent witness Gaurav Sharma respectively. A
fresh memory card was taken and inserted in the DVR.
Introductory voices of both independent witnesses were
recorded in the memory card through the DVR. The witness
Rahul was instructed to remain with CBI team while Gaurav
Sharma was also directed to remain as close as possible to
the complainants during the trap proceedings and to try to
overhear any conversation between the complainants and
the accused persons. Complainants were directed to give a
signal by rubbing their face with both hands or by giving a
missed call on his (TLO’s) mobile number as soon as the
transaction of the bribe money was over.
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21.06 The entire pre-trap proceedings were recorded
in a memorandum, which was prepared on the official laptop
and contents of the same were explained to all the team
members, who then signed it as a token of its correctness.
The handing over proceedings were concluded at about
1410 hours on 25.09.2018. PW-19 identified his signatures
on handing over memo dated 25.09.2018, Ex.PW1/E (Colly.)
(D-4). Thereafter, team left for the office of the Assistant
Commissioner, Food & Supply, in the Asian Market, Pushp
Vihar. Rest of the deposition of said witness with regard to
making of calls by the complainant to accused Shyam
Sunder enroute is same as deposed by the complainant
Naresh. The narration of mode, manner and execution of
trap laid on the spot upon the accused Shyam Sundar, is
also more or less on the same lines as deposed by the
independent witnesses. PW-19 deposed that at 3:15 p.m he
received a missed call from complainant Rajesh Kumar,
upon which he alerted the other team members and rushed
to the office of accused Mukesh Kumar, where Rajesh Kumar
and Gaurav Sharma were found outside the office and when
PW-19 with other team members entered into the office
room of accused Mukesh Kumar, they found complainant
and accused Shyam Sunder inside said room. Upon
indication from the complainant Naresh Kumar, Inspector
Sudip Punia and SI Umesh Kumar caught hold hands of
accused Shyam Sunder, who was holding the tainted bribe
money in his hands.
21.07 As per PW-19, accused Shyam Sunder dropped
the tainted bribe money on the floor. Accused Shyam
Sundar was challenged of having demanded and accepted a
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bribe money of Rs.50,000 from complainant Naresh Kumar,
upon which he became perplexed. The DVR was taken from
complainant Naresh Kumar and switched off. Upon
interrogation, accused Shyam Sundar admitted having
demanded and accepted the bribe money of Rs.50,000 from
complainant Naresh Kumar at the instance of Assistant
Commissioner Mukesh Kumar. As per the instructions,
independent witness Sh. Rahul recovered the tainted
amount from the floor, tallied the distinctive number of the
recovered GC notes with the numbers noted down in the
annexure that was part of handing over memo and the same
were found to be matching in toto. The signature of both the
independent witnesses were taken on the said annexure as
a token of their having matched the distinctive numbers of
the GC notes. The recovered tainted amount was sealed in
an envelope, which was signed by PW-19 as well as the
independent witnesses.
21.08 Careful perusal of examination of PW-19 shows
that his version with regard to the narration of the facts by
the complainant regarding what all transpired between him
and accused Shyam Sunder inside the office of accused
Mukesh Kumar; regarding preparation of handwashes RHW
and LHW is on the lines of the deposition of the
complainants. On the bottles carrying the right hand wash
and left hand wash of accused Shyam Sunder, PW19
identified his signatures. He also identified his signature on
site plan already exhibited as Ex.Ex.PW9/G (D-7).
21.09 PW-19 deposed that since the accused Mukesh
Kumar was not in the office, it was decided to make a phone
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call to him from the mobile phone of accused Shyam
Sunder. After a few unattended calls, the call got connected
and during said call, accused Shyam Sunder informed
accused Mukesh Kumar about his having accepted
Rs.50,000/- from Sh. Naresh Kumar. On this, accused
Mukesh Kumar had consented by saying “theek hai”. The
said calls were recorded on the DVR as the mobile phone of
accused Shyam Sundar was kept on speaker mode. PW-19
proved on record the Authorization under Section 165 CrPC
Ex.PW19/B (D-18) issued by him in favour of Insp. Shitanshu
Sharma for apprehending accused Mukesh Kumar from the
Head Office I.P.Estate. PW-19 also identified his signatures
on the Office Search Memo dated 25.09.2019 Ex.PW1/I (Part
of D-18). His signatures on the separate authorization under
Section 165 CrPC in favour of Sh. Arjun Singh and Insp.
Dharmender Kumar for conducting the searches at the
residence of accused Shyam Sundar and accused Mukesh
Kumar were also identified by PW-19.
21.10 PW-19 deposed that after the employees of
Food & Supply office at Asian Market Pushp Vihar left the
office, the CBI team alongwith complainant Rajesh Kumar,
independent witness and accused Shyam Sundar left for the
CBI office and reached there at about 1945 hours. After
about an hour, the CBI team that was sent to the Head
Office at IP Estate, also returned with accused Mukesh
Kumar. Both the accused persons were interrogated and
were later arrested vide separate arrest memos. The
recordings of the memory card were also heard through the
DVR and the recordings were found to be corroborating the
version of the complainant and the witnesses. The version of
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PW-19 regarding post trap proceedings is not repeated
herein for being similar to the version of the complainant
and the independent witnesses. PW-19 also deposed similar
to the version of said other witnesses on the point of
recording of sample voice of the accused and the
complainants. He identified his signature on the arrest
memos, on the print outs of WhatsApp chat and messages
stored in the mobile phone of accused persons. As per his
version, DVR was sealed after recording of voice of accused
Shyam Sunder.
21.11 During his examination, PW19 correctly
identified the currency notes Ex.PW-8A/1 to Ex.PW-8A/100
used during trap proceedings, the SD card Ex.PX-2 taken out
from yellow colour envelop Q-3 and S-1; S-2 and the brown
envelope Ex. PW10/A containing the DVR make Sony.
Witness also correctly identified the DVR Ex. P-13, upon
which he identified his signature at point C.
22. PW-21 Inspector Kuldeep Sharma is the IO of
the case. As per his version, he was entrusted with the
investigation of the present case by SP, CBI, ACB, New Delhi.
The case was pertaining to Fair Price Shop (FPS) 9230 in the
name of M/s. Rajesh Store, in which a raid was conducted by
enforcement officers of Food & Supply Department, GNCT
Delhi. During said raid, four Sale Registers and one Stock
Register were seized by Food & Supply Officers. After said
raid, accused Shyam Sundar had made a phone call to
complainant Naresh Kumar and asked him to pay bribe of
Rs. 1.5 lakh to avoid any adverse action. PW21 further
deposed that since the complainant did not want to pay the
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illegal gratification therefore, he made a complaint no.
39/2018 to CBI on 24.09.2018, which was assigned to SI
Umesh for verification. About the mode and manner of
verification proceedings, PW-21 has largely deposed on the
same lines as deposed by the verification officer/PW-12
Umesh Kaushik.
22.01 PW-21 further deposed that on the basis of the
verification, the FIR 31/2018 was registered and same was
assigned to Inspector CMS Negi, who conducted the trap
proceedings as per the procedure and the guidelines and
after completion of trap proceedings, the case was assigned
to him for the further investigation. PW-21 deposes that
during investigation, he sent the hand washes of accused
Shyam Sundar to CFSL, CBI for chemical examination.
Further, since accused Mukesh Kumar had refused to give
his sample voice therefore, permission was sought from the
Court to take his sample voice. Thereafter, the sample voice
of accused Mukesh Kumar was taken in the presence of
independent witness. The voice sample of the complainant
Naresh Kumar and accused Shyam Sundar were already
taken before the case was assigned to him. All the voice
samples of both the accused and the complainants
alongwith questioned audio recording/conversation were
sent to CFSL for the purpose of voice identification of the
speakers in the questioned conversations. The voice
identification memo was prepared in the presence of the
Special Commissioner Sh. Arun Kumar Mishra who identified
the voice of the accused.
22.02 He further deposed that during investigation, he
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noticed that the seizure memo prepared at the time of raid
in the shop of the complainant for seizure of registers from
the shop, were not signed by the independent witnesses
namely Seema and Vishal, who were joined by Food &
Supply Officer at the time to conducting said raid. Later on,
it was revealed that accused Shyam Sundar had forged the
signature of said independent witnesses on the seizure
memo. In view thereof, with the permission of the Court, the
specimen signature and handwriting of accused Shyam
Sundar were taken and the signature of Smt. Seema and
Vishal were also taken by him in his office. Thereafter, the
signatures of the accused Shyam Sundar and the said
witnesses of Seema and Vishal were sent to CFSL for the
purpose of their comparison with the signature on
aforementioned seizure memo. PW-21 further deposed that
at the time of assignment of the case to him, he was handed
over the case files with all the documents i.e. office cum
seizure memo, seized articles, verification memo, trap
memo, recovery memo, FIR, complaint etc. The CFSL reports
of hand washes of the accused Shyam Sundar was received
prior to filing of the chargesheet but the other reports of
voice identification and hand writing expert were received
subsequent to filing of chargesheet and in due course, the
same were filed on court record.
22.03 During examination, PW21 further deposed that
he had also seized the CAF, CDR and Call Location Chart of
the mobile phone of the accused persons, complainant
Naresh Kumar and recorded the statement of witnesses u/s
161 Cr.P.C. During investigation, it was revealed that the
license of FPS 9230 was in the name of Nirmala Devi w/o
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complainant Rajesh Kumar. On 04.10.2018, the file
pertaining to the raid conducted at the shop of the
complainant was obtained/seized from the office of Assistant
Commissioner, Mukesh Kumar, Food & Supply Department
and same was seized from Randheer Singh, the FSO, from
the office of Enforcement, Food & Supply Department,
GNCT, ITO. Requisite sanction under Section of 19 PC Act
was obtained from the competent authority and thereafter,
chargesheet was filed by him before the Court.
22.04 PW-21 identified the documents received by him
from the TLO. He identified his signatures on the
transcription cum voice identification memo dated
08.10.2018 (D-8) Ex. PW1/G, which was prepared by him in
the presence of independent witnesses and complainant
Naresh Kumar. He deposed that he had also prepared the
transcription of the recorded conversations, which had taken
place during the verification and trap proceedings.
22.05 PW-21 identified the court order dated
10.10.2018 Ex.PW21/A (D-11), vide which Court had directed
the accused Shyam Sundar to give his specimen handwriting
and signature and accused Mukesh Kumar was directed to
give his specimen voice to the IO. PW-21 identified
signatures of the then SP on Ex. PW18/C {Colly), Ex. PW16/A
{Colly}; Ex. PW16/B {Colly}. He identified his own
signatures on the documents exhibited during the deposition
of other witnesses i.e. Ex. PW13/B (D-19), Ex. PW2/D (D-20).
Ex. PW3/E (D-21), Ex. PW3/A (D-21), Ex. PW4/C (part of D-
22), Ex. PW4/H (D-23), Ex. PW17/A and Ex. P-14 (colly).
22.06 During his deposition, PW-21 proved the copy
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of production- cum-seizure memo dated 04.10.2018 as Ex.
PW21/B vide which he had taken possession of various
documents mentioned therein. As per his version, the
specimen handwriting and signatures of accused Shyam
Sunder Ex. PW16/F, FSO Virender Pal Singh Ex. PW7/E and
Ex. PW7/F), Vishal (Ex. PW5/A) and Seema (Ex. PW6/A) were
taken in the presence of independent witness and on all
these exhibits, PW21 identified his signatures.
(iii) Expert witnesses from CFSL;
23. PW-15 Sr. Scientific Officer Ms. Deepti Bhargava
is the witness from CFSL, New Delhi. She deposed that on
05.12.2012, she examined the exhibits of the present case
and gave her report. As per her version, vide letter dated
28.09.2018, two sealed glass bottles Marked as RHW and
LHW were forwarded by the SP, CBI, ACB, New Delhi to the
Director, CFSL, New Delhi and the same were received in
Chemistry Division of CFSL on 28.09.2018 and allotted to her
for necessary action by HOD, Chemistry. PW15 proved her
Chemical Examination Report dated 18.10.2018 addressed
to SP, CBI, New Delhi as Ex.PW15/A (Part of D-17) as per
which, the exhibits gave positive tests for the presence of
phenolphthalein and sodium carbonate. She also proved the
Forwarding Letter dated 26.10.2018 as Ex.PW15/B (Part of
D-17).
24. PW-16 Sr. Scientific Officer Sh. Vijay Verma is
also from CFSL. He deposed that vide Letter No. RC-DAI-
2018-A0031/12353 dated 18.10.2018, Ex.PW16/A (Colly.) (D-
14), the documents of this case i.e questioned documents Q-
1, Q-2 and Specimen Handwriting Mark S-1 to S-15
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purported to be of accused Shyam Sunder were
deposited/forwarded by the then SP, CBI, ACB to Director,
CFSL, New Delhi. Vide Letter No. RC-DAI-2018-A0031/13232
dated 15.11.2018 Ex.PW16/B (Colly.) (D-15), some additional
documents i.e Specimen Handwriting Mark S-16 to S-26
purported to be of Shyam Sunder; Specimen Handwriting of
Virender Pal Singh Mark S-27 to S-36 and S-37 to S-41
purported to be of one Vishal and admitted signatures A-1 to
A-7 were also deposited.
24.01 Vide letter No. RC-DAI-2018-A0031/1088 dated
01.02.2019 Ex.PW16/C (Colly.) (Part of File Part-IV), some
more Specimen Signatures/Handwriting Mark S-42 to S-46
purported to be of Smt. Seema were deposited. PW16
deposed that he expressed his opinion, after thorough and
careful examination of all the above documents and gave
his opinion vide his report Ex.PW16/D (Colly.) (Part of File
Part-IV) and as per Para 7 of his report Ex.PW16/D (Colly.),
the writer of specimen writings Mark S-1 to S-21 attributed
to co-accused Shyam Sunder is the person responsible for
writing the questioned signature Mark Q-1.
25. PW-18 is Scientist-B Sh. Mahesh Kumar Jain from
CFSL, Chandigarh. As per his version, the exhibits of the
present case were received in their laboratory on
04.10.2018 alongwith forwarding letter of Superintendent of
Police, CBI, ACB, New Delhi and the same were assigned to
him for examination by Sh. D.K. Tanwar, HOD (Physics). He
further deposed that they had received three questioned
exhibits i.e. Q-1, Q-2 and Q-3 and specimen exhibits i.e. S-1,
S-2 and DVR; subsequently, one more specimen exhibit S-3
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was received on 12.10.2018 and same were examined by
him on 06.02.2019. He opened the aforementioned exhibits;
examined the questioned and the specimen voice, took
some common words and through spectrographic
examination, prepared spectrograph of common words. PW-
18 further deposed that he also examined the voice
(auditory analysis) manually and then prepared a draft
report and after approval of his HOD, he finalized the report
and then intimated to the forwarding authority to collect the
same.
25.01 During examination-in-chief, PW-18 deposed
that he took out a common word from the specimen voice
of accused Shyam Sundar S-1(1) and questioned voice
attributed to said person in Q-1 i.e. Q-1(1)(S) and used the
same for spectrographic analysis. Similarly, he took common
word from the specimen voice S-2(1) of Naresh Kumar and
questioned voice attributed to said person in Q-1 i.e. Q-1(1)
(N) and used the same for spectrographic analysis and that
similar procedure was adopted for examination in respect of
the conversation contained in Q-2, which was carrying the
voices attributed to three speakers namely complainant
Naresh Kumar, accused Shyam Sundar and Mukesh Kumar.
25.02 PW-18 further deposed that the voice attributed
to accused Mukesh Kumar was given exhibit Q-2(2)(M) and
the voice attributed to accused Shyam Sundar was given
exhibit Q-2(1)(S) and Q-2(2)(S), the voice attributed to
Naresh Kumar was given exhibit Q-2(1)(N) and Q-2(2)(N).
The conversation of 9 calls, contained in Q-3 was also put to
examination by adopting same procedure and was
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compared with the respective specimen voices of the
speakers Naresh Kumar (S-2)(1)(N), Shyam Sundar (S-1)(1)
(S) and Mukesh Kumar (S-3)(1)(M). The respective voices of
the speakers contained in the aforementioned 9 calls of Q-3
were given marking as given in the table on Page 6 of his
report.
25.03 He further deposed that the common words
picked up from the conversation contained in Q-3 and the
respective specimen voices of the speakers were put to
spectrographical examination. PW-18 deposed further that
after examination, he came to the following conclusion:- (1)
That the Voice Mark Q-1(1)(S), Q-2(1)(S), Q-2(2)(S) and Q-
3(2)(S) to Q-3(9)(S) were the probable voices of Sh. Shyam
Sundar, whose specimen voice was Mark S-1(1)(S); (2) That
the Voice Mark Q-1(1)(N), Q-2(1)(N), Q-2(2)(N) and Q-3(1)
(N), Q-3(2)(N), Q-3(3)(N), Q-3(4)(N) and Q-3(5)(N) were the
probable voices of Sh. Naresh Kumar, whose specimen voice
was Mark S-2(1)(N) and (3) That the Voice Mark Q-2(2)(M),
Q-3(8)(M) and Q-3(9)(M) were the probable voices of Sh.
Mukesh Kumar, whose specimen voice was Marked as S-3(1)
(M).
25.04 PW-18 deposed that his aforementioned opinion
is based on both the auditory and spectrographic
examination of the questioned voices and sample voices and
spectrographical examination is based on number of
formants frequency distribution, intonation pattern and
other general visual features in voice grams.
25.05 PW-18 had also given opinion on the query no. 2
that the recording contained in Q-1, Q-2 and Q-3 and S-1, S-
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2 and S-3 were continuous and no form of tampering was
detected in the recordings contained in the aforementioned
micro SD cards. With regard to query no.3, he gave the
opinion that test recording done by DVR compared with
audio recording contained in micro SD cards Q-1, Q-2 and Q-
3 and S-1, S-2 and S-3 revealed that the said DVR could
have been used for recordings of aforementioned
exhibits/micro SD cards.
25.06 He proved on record the forwarding letter
alongwith CFSL report as Ex.PW18/A (Colly.) (Part III of
judicial file). PW-18 further deposed that vide forwarding
letter dated 04.10.2018, Ex.PW18/B (Colly.) (D-10), CBI had
sent the exhibits mentioned therein to the CFSL, which were
received on 04.10.2018 by his office. Vide forwarding letter
dated 12.10.2018, Ex.PW18/C (D-13), CBI had sent the
specimen voice of accused Mukesh Kumar, i.e. S-3 and that
the said letter/exhibit was received in his office on
12.10.2018.
(iv) Witness to voice identification of Accused no.1
26. PW-11 is Sh. Arun Kumar Mishra, who was
posted as the Special Commissioner, Food & Supply
Department, GNCTD, ITO, Delhi at the relevant time. He
proved on record the Enforcement Branch Notings from 1/N
to 3/N as Ex.PW11/A (Colly.) (D-18/II) by identifying his
signature on the same. He further deposed that said notings
were regarding introduction of the aforesaid e-POS system
and directions were given that the enforcement activities
shall be carried out by the Zonal Assistant Commissioners.
He further deposed that accused Mukesh Kumar was posted
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as Assistant Commissioner, South Zone and also holding the
charge of Assistant Commissioner (Enforcement) and all the
powers under law (the applicable Acts in the said
department) have been delegated upon the Assistant
Commissioner by the Commissioner, F&S. The said power
include Inspection of the Fair Price Shop, Levying Penalty,
Cancellation of Shops, etc.
26.01 During his examination, he deposed that he
joined the investigation and identified the voice of accused
Mukesh Kumar in the recordings played on the laptop of CBI
official. He also exhibited the Voice Recognition Memo
dated 08.10.2018 alongwith the Transcripts annexed
therewith as Ex.PW11/B (Colly.) (D-9) by identifying his
signatures on the same. PW-11 also identified the voice of
accused Mukesh Kumar in the conversation recorded in the
question conversation (Q-2) on the Forensic Computer
System of the File bearing No. 180925-1034 and deposed
that the sentences heard from the said voice recording were
found matching with the sentences of the Transcript Memo.
The sentences/speech attributed to Mukesh Kumar and it
was identified to be the voice/sentence of accused Mukesh
Kumar. The voice recording in File No. 180925-1543
contained in Q-3 was also played and the sentences heard
from the said voice recording were matched with the
sentences of the Transcript Memo in front of the name
“Mukesh Kumar” and were identified by the witness to be
the voice/sentence of accused Mukesh Kumar.
26.02 The voice recording of File No. 180925-1553
contained in Q-3 was also played but the witness deposed
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that the voice quality of the said recording was not very
clear but he could say that the words “Theek hai, hello and
ab-bolo” appeared to be the voice of accused Mukesh
Kumar. PW-11 correctly identified accused Mukesh Kumar,
who was present in Court on the date of recording of
examination in chief.
(v) Witnesses to CDR and related documents
pertaining to phone instruments/numbers used by
complainant and accused at the relevant time.
27. PW-3 Sh. Pawan Singh is the Nodal Office from
Vodafone Idea Ltd, who upon receipt of letter dated
28.09.2018 Ex. PW3/E from the IO, had furnished E-KYC of
mobile no. 9910691882 in the name of Naresh Aggarwal, his
certificate under Section 65-B of Indian Evidence Act and
CDR from 24.09.2018 to 25.09.2018 and he proved said
documents as Ex. PW3/B to Ex. PW3/D respectively. As per
his deposition, all the aforementioned documents were
seized by the IO vide seizure memo Ex. PW3/A.
28. PW-4 Kamal Kumar, is the Nodal Officer from
Reliance Jio Infocomm Ltd. As per his deposition, vide letter
dated 28.09.2018 Ex.PW4/G, IO had demanded certain
documents and vide letter dated 03.10.2018 Ex. PW4/A, he
had handed over E-KYC Ex. PW4/C; CDR (from 24.09.2018 to
25.09.2018) and Cell ID Chart Ex. PW4/D (colly) of mobile
phone no. 8700255347 subscribed in the name of Naresh
Aggarwal and he also supplied E-KYC PW4/E and CDR Ex.
PW4/F, of mobile no. 9213816186 in the name of Shyam
Sunder. He also furnished combined certificate under
Section 65 B of Indian Evidence Act in respect of documents
pertaining to the above said mobile numbers as Ex. PW4/B.
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He further deposed that vide letter dated 15.10.2018 Ex.
PW4/H, the IO had sought certain more documents in
respect of mobile no. 8178967723 and he (PW-4) handed
over CAF, CDRs, certificate under Section 65 B of Indian
Evidence Act and Cell ID chart of said mobile no.
8178967723 to the IO vide his (PW-4) letter dated
16.10.2018 Ex. PW4/ (colly).
29. PW-17 is the Nodal Officer Sh. Saurabh Agarwal
from Vodafone-Idea Ltd. He deposed that vide letter
Ex.PW17/A (Part of D-25), IO of the case had requested for
providing the certified copy of CAF, CDRs with Location
Chart and Certificate under Section 65-B of Evidence Act of
mobile nos. 9873548477 and 9811988484 for the period
from 24.09.2018 to 25.09.2018 and vide forwarding Letter
dated 02.10.2018, addressed to Inspector, CBI, he had
handed over the CDRs, CAFs, Location Chart of
aforementioned mobile for the requisite period as well as
certificate under Section 65-B of Indian Evidence Act in
respect of printouts of said documents and PW17 proved the
same on record as Ex.PW17/B (Colly.) (Part of D-25). As per
his version, the mobile number 9873548477 was in the
name of Mayank Garg S/o Sh. Rajesh Kumar and the mobile
number 9811988484 was in the name of accused Mukesh
Kumar S/o Sh. S.R. Premi.
30. PW-20 is the Nodal officer Sh. Ajay Kumar from
Bharti Airtel Ltd. He deposed that he could identify the
handwriting and signatures of Nodal Officer Sh. Wasim
Mohammad, who had left the services of Bharti Airtel in
2018, as he (PW-20) had worked with him and had seen him
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writing and signing during the course of his official duties.
He proved on record the letter dated 07.10.2018, vide which
CDRs and attested copies of CAFs of mobile numbers
8826766542 and 9821897761 Ex.PW20/A (Colly.) (D-24)
were forwarded to the IO.
(vi) Witnesses pertaining to Sanction under Section
19 of PC Act, 1988.
31. PW-14 Sh. Vijay Kumar Dev, Chief Secretary,
Govt. of NCT of Delhi is the sanctioning authority. As per his
version, during the relevant period, he had received a
request letter annexed with certain documents viz. copy of
FIR, statement of witnesses, complaint, transcription and
various memos, etc. from the CBI seeking prosecution
sanction against accused Mukesh Kumar. He deposed that
he had gone through all the aforesaid documents, applied
his mind and on the basis of said documents, he opined that
a case was made out and therefore, he accorded sanction
for prosecution of accused Mukesh Kumar. PW-14 further
deposed that being posted as Chief Secretary, he was the
competent authority for removal and appointment of
Assistant Commissioner in Food & Supply Department, Govt.
of Delhi and therefore, he was competent to grant said
sanction. PW-14 duly proved on record the Sanction Order
dated 24.12.2018 as Ex.PW14/A as well as the official noting
in this regard as Ex.PW14/B.
(vii) Witnesses to the Inspection conducted on
14.09.2018
32. As per the deposition of PW-5 Sh. Vishal and PW-
6 Ms. Seema, on 14.09.2018 and on the request of Rajesh,
they had joined the inspection of his shop at Neb Sarai. They
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further deposed that they had gone to the shop alongwith
the ration card and appended their signatures on the
statement of Rajesh Kumar Ex. PW1/A as the same was
recorded in their presence. They also appended their
signatures on the Daily Sale Register Ex. PW2/D (at serial no.
947 at page 10 and serial no. 202 at page no. 3
respectively) and the Inspection File, Daily Sale Register and
Inspection Report were seized at the time of inspection by
the officials in their presence. PW-5 deposed that he had
given his specimen signatures (S-37 to S-41) Ex. PW5/A
(colly) to the IO on 15.11.2018. As per PW-6, she gave her
specimen signatures (S-42 to S-46) Ex. PW6/A (colly) on
28.01.2019.
33. PW-7 Sh Virender Pal Singh is from Food and
Supply Department, who at relevant time was the Incharge
of circle 48, Ambedkar Nagar with additional charge of circle
Deoli at the office in Asian Market, Sector 3, Pushp Vihar,
Saket, New Delhi. As per his deposition, his duties were to
ensure that the ration at fair price shop were distributed in
accordance with the rules and procedure and as per
Essential Commodities Act and for that, he used to
undertake inspection of the FPS (Fair Price Shops). As per
his version, accused Mukesh Kumar, was having the charge
of Asstt. Commissioner Enforcement and was his immediate
supervisor officer and on 13.09.2018, accused Mukesh
Kumar had constituted enforcement teams for entire Delhi
to conduct inspections of Fair Price Shops by issuing order
Ex. PW7/A and by virtue of said order, he (PW-3) headed a
team comprising of himself and Inspector Mehar Singh with
the assignment of inspection of FPS no. 9230 in the name of
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M/s Rajesh Store (circle no. 46 (Chattarpur).
33.01 PW-7 further deposed that on 14.09.2018, he
alongwith Inspector Mehar Singh visited FPS 9230, as per
the address given in the order, but was unable to locate the
same and after contacting FSO, he got new address of said
shop, which was changed with due permission of the office
and on reaching the FPS, they met authorized person Mr.
Rajesh and his brother Naresh. Mr. Rajesh informed him that
the license was in the name of his wife Nirmala, however,
entire family members i.e. he himself (Rajesh), his brother
Naresh and his wife were running the said shop. He further
deposed that on his asking, Rajesh summoned two ration
card holders to witness the inspection and he (PW-7)
counted and quantified the food articles in the shop and
made entry in the seizure memo Ex.PW2/A. Thereafter, on
his asking, Rajesh produced sale register, stock register but
failed to produce cash memo pertaining to the month of
September, 2018, as the same was not maintained by
Rajesh and he (PW-7) made the entries accordingly in the
said seizure memo Ex. PW2/A bearing his signatures and
that of Inspector Mehar Singh as well as of Rajesh, however,
by mistake he failed to take the signatures of witnesses
namely, Vishal and Seema.
33.02 PW-7 further deposed that on 14.09.2018, he
recorded statement of Rajesh Ex. PW1/A (colly), which was
signed by Rajesh as well as by witnesses Vishal and Seema.
PW-7 had also seized the stock register Ex. PW2/C and the
sale register Ex. PW2/B1 to B4 and after the inspection of
the FPS, they submitted the Statement of Stock Variation
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(SSV) alongwith the inspection report and other documents,
collected from the shop, Ex. PW7/B (colly) to accused
Mukesh Kumar on 15.09.2018.
33.03 As per deposition of PW-7, the short comings
found at the FPS were duly noted in the inspection report
and the kind of short comings found in the FPS 9230 invited
penalty of Rs. 5000/- by virtue of circulars issued by the
department Ex.PW7/C and that Asstt, Commissioner Mukesh
Kumar was competent authority to impose penalty on the
FPS found at fault. He further deposed that on 24.09.2018
at about 9 AM, he received a call from accused Mukesh
Kumar and on his directions he visited his office at Vikas
Bhawan, ITO, where he was returned the aforesaid SSV and
inspection report by accused Mukesh Kumar with direction
to keep the same in Pushp Vihar, Sector 3 office for
examination to be conducted and he (PW-7) accordingly,
kept the file in said office.
33.04 It is further deposed by PW-7 that on
25.09.2018, accused Mukesh Kumar visited his office at
Pushp Vihar and on his instructions, he (PW-7) signed the
first and last page of the stock and sale register of FPS 9230
and took the report and SSV with supporting documents to
the office of accused Mukesh Kumar at Vikas Bhawan and on
the that day itself, he (PW-7) handed over the same to
accused Mukesh Kumar at his office at Vikas Bhawan, in the
presence of one Arjun/Arjan. He further deposed that
accused Mukesh Kumar asked him to retain the sale and
stock register at the office of Pushp Vihar itself and that he
may call the same later on and he (Mukesh Kumar) retained
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the inspection file, SSV etc. PW-7 further deposed that on
03.10.2018, he received a call from Enforcement Branch,
Headquarters asking him to submit the stock and sale
register of the FPS 9230 to the headquarter and on the same
very day, as per the directions of FSO Enforcement Mr.
Randhir Bhaskar, vide a covering letter Ex. PW7/D, he (PW-
7) submitted the said stock and sale register after signing all
the pages. He further deposed that on 25.09.2018, at 3 PM,
Mr. Rajesh Kumar, Naresh Aggarwal and one person had
come to his office cabin at Pushp Vihar but they left his
cabin after about 2-5 minutes and after 10-15 minutes,
when he was going to washroom, he found them alongwith
one FPS holder Shyam Sunder, who were waiting outside the
cabin of Asstt. Commissioner Mukesh Kumar and when he
(PW-7) came out of the washroom, he found them entering
into the cabin of accused Mukesh Kumar and then he came
to know that Shyam Sunder was raided/arrested.
33.05 During his examination in chief, PW-7 further
deposed that he knew FPS holder accused Shyam Sunder as
he used to frequently visit the office at Pushp Vihar and
meet him (PW-7) as well as accused Mukesh Kumar. PW-7
correctly identified accused Mukesh Kumar and Shyam
Sunder on the date of his deposition. PW-7 further deposed
that he had joined the investigation and his statement was
recorded by the CBI. PW-7 deposed that on the asking of IO,
he had written ‘Seema’ and ‘Vishal’ on sheets of paper and
also signed said papers Ex. PW-7/E (Colly) and that he had
written said words of his own as no formation of word
‘Seema’ and ‘Vishal’ was given to him.
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(viii) Other formal Witnesses.
34. PW-8 is Ms. Nirmala, who deposed that she was
running a shop in the name of M/s Rajesh Store, having
license no. 9230 Ex. PW8/A, and said shop was earlier
situated at D-33, Neb Sarai, New Delhi but later on, it was
shifted to 132, Neb Sarai, New Delhi. Further that, she had
filed a copy of the order Ex. PW8/B of the Food and Supply
Department regarding change of shop address. PW-8
deposed that on the date of inspection i.e. 14.09.2018, the
said shop was run by her husband and jeth Naresh
Aggarwal.
34.01 PW-13 Sh. Randheer Kumar is the FSO, Food &
Supply Department, Delhi. He deposed that Accused Mukesh
Kumar, the Assistant Commissioner, South District was
having additional charge of Assistant Commissioner
Enforcement and Enforcement activities were conducted
with the approval of Commissioner Food and Supply. Further
that, Zonal Assistant Commissioner was the Licensing
Authority and used to Supervise Fair Price Shop under his
jurisdiction and being Licensing Authority, Zonal Assistant
Commissioner was holding all the powers like suspension of
licence, cancellation of Licence, imposing penalty and
forfeiture of security deposits. He further deposed that since
the Enforcement Branch did not have sufficient staff for
conducting enforcement drive at large scale, they used to
take staffs randomly from the circle office in the Delhi and
generally the team consisting of one FSO and two FSI,
working under supervision of one Assistant Commissioner
used to inspect the Fair Price Shop and after closing of
inspection work, the team was to submit its reports duly
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signed by inspecting members through Zonal Assistant
Commissioner along with seized document and stock
variation statement to the Enforcement Branch Head
Quarter.
34.02 PW-13 further deposed that on 25.09.2018, he
came to know that CBI had raided the room of Mukesh
Kumar, Assistant Commissioner Enforcement, Room No.
215, K Block, Vikas Bhawan, ITO, Delhi and on the directions
of CBI, he (PW-13) provided desired documents against
seizure memos and some documents were recovered from
the room of the Assistant Commissioner, Enforcement. He
identified his signatures on documents already exhibited as
Ex. PW1/I (D-18), Ex. PW7/B (colly), Ex. PW2/A, Ex. PW11/A
(colly). He further deposed that File Movement Register
[(D-18 (iii)] was also handed over to the CBI team from
Branch and proved the same as Ex. PW13/A(colly) [(D-18
(iii)]. As per PW13, the Inspection Report File was recovered
from the office room of accused Mukesh Kumar. PW-13
deposes that the CBI team had inquired and searched the
inspection report file of FPS No. 9230 in the branch but the
same was not found there and it was disclosed by the
concerned LDC that the file was with accused Mukesh
Kumar, who had taken the same one day before and said
fact was not in the knowledge of FSO, Enforcement. He
further deposed that vide Production-cum-seizure memo
dated 04.10.2018, he had handed over the documents
mentioned therein to the IO and PW-13 proved the same as
Ex. PW13/B (D-19) by identifying his signatures. He also
identified the signatures of Sh. M.S.Premi on the forwarding
letter dated 03.08.2018 Ex PW13/C (D-19) whereby, Sh.
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M.S.Premi had handed over documents mentioned therein.
Statement of Accused/Defence Evidence
35. After conclusion of prosecution evidence,
statement of both the accused were recorded under Section
313 CrPC wherein all the incriminating evidence was put to
them but as expected, the same was denied by the accused
persons as wrong and incorrect. The accused persons
pleaded their innocence and came up with the plea that
they have been falsely implicated by the complainants as
they were apprehending registration of FIR and suspension
of FPS License of their shop no.9230 as the outcome of
inspection dated 14.10.2018. They stated further that no
money was ever demanded from the complainants for any
purpose by any of the accused nor any illegal gratification
was accepted by accused Shyam Sunder either for himself
or on behalf of accused Mukesh Kumar.
35.01. They further stated that false and manipulated
documents have been created by the complainants in
connivance with CBI officers and the witnesses joined by CBI
in the alleged verification and trap proceedings are also
stock witnesses. The accused persons categorically denied
that the voice attributed to them by the prosecution
witnesses in Q1, Q2 and Q3 were their voices. Both the
accused denied the voice identification report of the expert
Ex.PW18/A stating that the opinion contained in said report
regarding their alleged voices in Q1, Q2 and Q3 is incorrect
and manipulated.
35.02 Accused Shyam Sunder categorically denied the
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alleged recovery of tainted money from him. Accused
Shyam Sunder further stated that he was Member Secretary
of FPS, All India Dealer Association and the complainants
Naresh and Rajesh, who were managing many FPS shops on
contract basis once approached him to get their matter
pertaining to their FPS Shop sorted with the Food and Supply
Department. But, since he refused to render any help to
them, they (complainants) developed grudges against him
and got him implicated him in the present case.
35.03 In defence evidence, only accused Mukesh
Kumar examined one witness, the Nodal Officer from Airtel
as DW-1. DW1 was examined to prove the call records of the
relevant dates of his mobile phone no. 9821897761.
35.04. Arguments were advanced at length by Ld.
Counsels Sh. Sanjay Gupta, for accused Mukesh Kumar and
Sh. Tushar Sinha, for accused Shyam Sunder. On behalf of
CBI, the arguments were addressed by Ld. Public Prosecutor,
Ms. Amita Verma. Written submissions were also filed on
behalf of CBI and the accused persons. I have given my
thoughtful consideration to the rival contentions raised from
both the sides and also carefully perused the entire record
including the written arguments and the supporting
judgments filed on record by the parties.
Prosecution Arguments
36. Ld. PP for CBI has argued that prosecution has
successfully proved the charges against both the accused by
leading clinching evidence in the form of direct and
circumstantial/link evidence and in this regard, she has
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relied upon the testimony of the complainants Naresh
Kumar (PW-1), Rajesh Kumar (PW-2) and the independent
witnesses namely Gaurav Sharma (PW-9), who remained
part of both verification and trap proceedings, Rahul Jaiswal
(PW-10), the other independent witness who was joined only
at the time of trap proceeding as well as the Verification
Officer SI Umesh Kaushik (PW-12) and Trap Laying Officer
Inspector C.M.S. Negi (PW-19). Ld. PP has referred to the
alleged incriminatory portion of their testimonies in detail in
the written submissions filed on behalf of CBI.
36.01. It was further argued that with regard to
demand and acceptance of bribe, the complainants have
more or less deposed on the lines of their joint complaint
dated 24.09.2018 Ex. PW1/A. It was argued that a small
discrepancy regarding the physical visits of the
complainants to the office of accused at Asian Market on the
first date of verification, which was conducted on the very
date of the complaint i.e. on 24.09.2018 ought not to be
given much weight because such discrepancies are bound to
occur as only the tutored witnesses can give the parroted
version of the incident, which is actually in violation of the
spirit of law. Even otherwise, said discrepancy is not of much
significance especially in the light of the fact that verification
of 24.09.2018 remained incomplete and with respect to 2nd
verification conducted on 25.09.2018, corroborative
evidence in the form of recorded conversation Q-2 is
available on record, which clearly shows that a demand of
Rs.70,000 was raised by accused Shyam Sunder at the
instance of accused Mukesh Kumar and to meet their illegal
demand, the complainant made the part payment of
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Rs.50,000 to the accused Shyam Sunder in the office at
Asian Market where he was trapped red-handed by the trap
team.
36.02 Ld. PP submitted that the complainants in their
examination-in-chief have consistently deposed that on
14.09.2018, a raid was conducted at their Shop FPS 9230,
which was licensed in the name of Smt. Nirmala Devi, wife of
Rajesh Kumar and just after a gap of two days, a call was
received by Naresh Kumar from accused Shyam Sunder on
17.09.2018, who told that accused Mukesh Kumar had been
demanding Rs.1.5 Lakh to settle the matter in connection
with the raid conducted on their shop on 14.09.2018. Later,
upon the asking of accused Shyam Sunder, Naresh Kumar
met the accused persons in the Asian Market on 21.09.2018
and there also, he was threatened that he had to pay atleast
Rs.50,000 for avoiding cancellation of license of his shop
and to save himself from the prosecution. However, since
the accused did not want to give any bribe, therefore, they
preferred to make a complaint to CBI. Subsequently, a joint
complaint was made by them with the CBI on 24.09.2018,
which was assigned to SI Umesh Kaushik for the purpose of
verification.
36.03 It was argued that since the verification on
24.09.2018 remained incomplete for lack of any demand
coming up from the side of the accused therefore, the
verifying officer instructed the complainants to visit the
office of the accused Mukesh Kumar again on 25.09.2018 as
asked by accused Shyam Sunder. On 25.09.2018, the
independent witness Gaurav Sharma also accompanied
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them. However, after arrival of accused Mukesh Kumar,
accused Shyam Sunder asked only the complainant Naresh
Kumar to come inside the office while his brother Rajesh and
the independent witness Gaurav Sharma were asked to wait
outside. It was further argued that inside the office of
accused Mukesh Kumar, a conversation, which was duly
recorded through DVR placed in the pocket of complainant,
took place between Naresh Kumar and Mukesh Kumar
during which, accused Mukesh Kumar with the gesture of his
hand and eyes, asked complainant to talk to Shyam Sunder,
who took him inside a small room where he reiterated the
demand of Rs.70,000/-.
36.04 It has been argued that from the conversation,
recorded in Q-2 and transcribed at page 15 to 25 of Ex
PW1/H (Colly), it is evidently clear that accused Shyam
Sunder was acting as a conduit for accused Mukesh Kumar
and it was at the behest of accused Mukesh Kumar, he
demanded and accepted money from the complainant. It
was argued that with regard to the trap proceedings, which
took place in the afternoon of 25.09.2018, there appears to
be a minor discrepancy in the version of independent
witness Gaurav Sharma/PW9 as per whom, only Naresh/PW1
was allowed to enter into the room of accused Mukesh
Kumar while he and co-complainant/Rajesh/PW2 remained
outside the office.
36.05 It was argued that in this regard, the version of
the complainants is however, in consonance of recovery
memo Ex.PW1/F which also records that only the
independent witness Gaurav Sharma was directed to wait
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outside the chamber of Assistant Commissioner while both
the complainants were allowed to go inside. It has been
argued that the said inconsistency in the version of the
independent witness is not material in as much as, the
testimony of both the complainants is otherwise
corroborated with the conversation recorded in Q-3
transcript of which is available on record as part of Ex.PW1/H
(page 15 to 25).
36.06 It was contended further that the improvement
in the version of the complainants with regard to their
physical visit to Asian Market office is nothing but sheer
zealousness of complainants to strengthen their case by
addings more to the story and same ought to be ignored for
not being very material so as to adversely affect the
prosecution case. Ld. PP argued that actually the verification
call on 24.09.2018 was made by the complainant Naresh
Kumar from the office of CBI and since, he was asked by
accused Shyam Sunder to come on 25.09.2018, there was
no occasion for the complainants to physically visit the office
of accused on 24.09.2018 and same is also evident from the
verification memo dated 24.09.2018 Ex.PW1/C (D-3/I), which
nowhere records any such fact regarding physical visit of the
complainants to the Asian Market office of the accused on
24.09.2018 nor even the independent witness Gaurav
Sharma narrated any such fact in his deposition before the
Court.
36.07 Ld. PP for CBI submitted since the verification
done on 24.09.2018 remained incomplete therefore, the
verifying officer conducted the second verification in the
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morning of 25.09.2018 and with regard to 2nd verification,
the version of independent witness Gaurav Sharma and the
complainants is well in consonance with each other. As per
the complainants as well as the independent witness Gaurav
Sharma, only complainant Naresh was asked to enter inside
the room of accused Mukesh while complainant Rajesh and
independent witness Gaurav Sharma were asked to wait
outside.
36.08 It was further argued that when during said
meeting for verification on 25.09.2018, complainant/PW1
met the accused Mukesh Kumar in his office. When the
complainant asked accused him (Mukesh Kumar) to reduce
the amount in the presence of accused Shyam Sunder,
accused Mukesh told him that “matter khatam karo, baki
sab baad ki baten hain”. He (accused Mukesh) made a
gesture with his hand and eyes towards accused Shyam
Sunder and asked complainant Naresh Kumar to talk to
Shyam Sunder, who took him to the adjoining room, where
he (Shyam Sunder) told complainant Naresh to give
Rs.70,000 i.e. Rs.50,000 for Mukesh Kumar and Rs.20,000
for FSO and FSI. Thereafter, accused Shyam Sunder left the
office to bring the demanded money within 1-1½ hours and
while coming out of the room of Mukesh, he again requested
accused Mukesh to reduce the amount, upon which accused
Mukesh Kumar asked him “hum bathen hain tumhare liye,
tumhare liye aakhir tak ladenge” and further asked him to
arrange for money quickly.
36.09 In this regard, Ld. PP has taken me through the
detailed examination-in-chief of PW-1 dated 20.08.2019
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(from Page 7 to 9). She further submitted that the
aforementioned conversation between the complainant and
the accused persons is duly recorded in Q-2, transcription of
which is available on record as Ex.PW1/H (Colly.) (D-1 to D-
17). She further argued that during investigation, the
alleged voice of the accused Mukesh Kumar in Q-2 and Q-3
was got duly identified through Sh. Arun Kumar Mishra, who
was posted as the Special Commissioner, Food & Supply
Department, GNCTD, ITO, Delhi at the relevant time and
even during trial PW-11 duly supported the prosecution
case. Besides that, the conversation contained in said
memory card Q-2 was also duly examined and compared
with the specimen voices of alleged speakers by the
Forensic Expert who also gave a positive opinion with regard
to their voices in his report Ex. PW18/A.
36.10 It was argued further that the discrepancy in the
version of independent witness Gaurav Sharma regarding
presence of co-complainant Rajesh/PW-2 at the time of trap
had occurred due to time gap and therefore, not much
weight can be attached to said discrepancy especially when
there is ample evidence of other trap team members for
corroborating complainant’s version in this regard.
36.11 It was argued that similarly, even with
regard to demand and acceptance, there is ample oral and
documentary evidence to clinchingly prove that on
25.09.2018, at the time of subsequent visit of the
complainant Naresh Kumar in the office of accused Mukesh
Kumar for the purpose of trap, accused Shyam Sunder had
raised the demand of money and accepted the same on
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behalf of accused Mukesh Kumar and same is also evident
from the fact that during the post-trap telephonic
conversation between accused Mukesh Kumar and Shyam
Sunder, which was duly recorded on the DVR by the CBI,
accused Mukesh Kumar was informed by accused Shyam
Sunder regarding receipt of Rs. 50,000 upon which, accused
Mukesh Kumar gave his nod by saying “theek hai”, and the
same clearly shows that accused Mukesh Kumar was the
mastermind under whose instructions, accused Shyam
Sunder acted as a conduit and he (Shyam Sunder)
demanded and accepted money on behalf accused Mukesh
Kumar.
36.12 Ld. PP has further relied upon the electronic
evidence in the form of audio recordings of verification
proceedings (Q-1 & Q-2) and the trap proceedings (Q-3) and
finally the recovery of the tainted money as well as the
supportive forensic evidence in the form of chemical
examination report dated 18.10.2018 Ex.PW15/A (Part of D-
17) in respect of hand washes and voice identification report
dated 20.02.2019 Ex.PW18/A. While relying upon the above
evidence, Ld. PP for CBI asserted that the prosecution has
successfully proved that accused Assistant Commissioner
Mukesh Kumar (public servant) through his middleman
accused Shyam Sunder (private person), had raised the
demand of bribe to hush up the matter relating to the
inspection of FPS Shop of the complainants bearing No. 9230
and accepted the demanded money through said
middleman/conduit, who was caught red handed by the trap
team.
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36.13 It was further argued that the audio recordings
of the conversation between the accused persons and the
complainant Naresh Kumar at the time of verification and
trap are ample proof of what all transpired between the
complainant and the accused with regard to alleged
transaction of bribe. Further, the recovery of money from
the possession of the accused Shyam Sunder and conduct of
accused Mukesh Kumar in giving his nod by saying ‘theek
hai’ after he was conveyed about receipt of money by the
accused Shyam Sunder after his trap by CBI, leaves no
scope for any other inference except that the accused
persons had conspired together and committed the alleged
offences under PC Act and IPC, in the manner and sequence
as deposed by the prosecution witnesses. It is further
argued that the audio recording of the verification and trap
proceedings are well admissible in evidence and have been
duly proved on record in accordance with law and the
credibility of such evidence is above board.
36.14 It was further argued that by clinching evidence,
the prosecution has been able to prove all the foundational
facts of demand, acceptance and recovery of tainted money
which are necessary to raise the presumption of Section 20
of PC Act and in the background of said circumstances, the
burden shifted on the public servant accused Mukesh Kumar
to rebut said presumption regarding existence of requisite
motive or reward as per Section 7 of PC Act, by leading
direct or indirect evidence which he miserably failed to do.
Thus, the material on record is sufficient to fasten the guilt
of the alleged offences upon the accused persons. In the
written submissions, Ld. Public Prosecutor has also relied
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upon the various case law in support of his arguments which
shall be referred in later part of this judgment.
Defence Arguments
37. Per-contra Ld. Defence Counsels for the accused
assailed the prosecution case primarily on the ground that
the deposition of the complainants is full of material
discrepancies and even the testimonies of the independent
witnesses suffer from serious infirmities and contradictions
making them completely unreliable and untrustworthy.
Broadly, following arguments have been raised on behalf of
accused by the Ld. Defence Counsels:-
i) That the prosecution has failed to prove
affirmatively that the accused public servant by corrupt or
illegal means or by abusing his position obtained any
pecuniary advantage either for himself or for any other
person. The allegations against accused are contradicted by
the statements of the witnesses and the documents brought
on record thereby, leaving the prosecution case completely
insufficient to raise the presumption of Section 20 of PC Act,
1988.
ii) That the facts deposed by the complainants in their
examination-in-chief regarding meeting of Naresh Kumar
with the accused persons on 21.09.2018, are altogether
different from the facts alleged in their complaint dated
24.09.2018 Ex.PW1/B.
iii) That a false story has been introduced by both the
complainants in their deposition before the Court regarding
their alleged physical visit to the office of accused MukeshCBI Case No. 62/2019 (1/19) Page no. 67/134
Kumar in the Asian Market for the purpose of verification on
24.09.2018 whereas, it is nowhere the CBI case.
iv) That there is absolutely no iota of evidence to prove
the demand on the part of accused Mukesh Kumar in any
manner except the story of alleged meeting of 21.09.2018,
which is apparently false because 21.09.2018 was a holiday
on account of Moharram and the office of the accused
Mukesh Kumar was closed and therefore, there was no
occasion for him to visit his office at Asian Market, Pushp
Vihar on that day.
v) That as per CBI case, accused Mukesh Kumar was not
present in the office when the signatures of two witnesses of
inspection namely Seema and Vishal were allegedly forged
by accused Shyam Sunder. On the contrary,
complainant/PW-1 in his deposition stated that even Mukesh
Kumar was also present at that time.
vi) That accused Mukesh Kumar has been falsely
implicated by the complainants as they were having grudges
against the said accused as vide two show cause notice
bearing No. F.AC(S)/F&S/SCN/2018/2026 dated 04.08.2018
Ex.PW1/DA (Colly.), accused Mukesh Kumar had imposed
penalty of Rs.5,000 each on the complainants in respect of
their Shop No. 7780 and 9230.
vii) That in File No.180925_1034 of Q-3, Naresh Kumar can
be heard saying “Sahab ko pata hai, sahab to bilkul mana
karta hai” and from timing 17:30 to 17:45 min, PW-1 can be
heard saying “Humhe nahi kaha sahab ne, iss bare mein
bola bhi nahi”. Again from timing 36:45 to 37:01, PW-1 is
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saying “chhote bhai ne kaha 50 dede inko, sahab ko pata
hai ya nahi, mujhe nahi pata, inn choto pe yakeen nahi hai”.
From said content of the conversation attributable to the
complainant Naresh Kumar it can be easily gathered that
accused Mukesh had never raised any demand from the
complainant Naresh Kumar.
viii) That in his cross-examination, PW-1 was further
confronted with recording of conversation of file no.
180925_1034 of Q-2 Ex.PX2 from 35:50 to 30:52 minutes,
wherein he (PW-1) said to accused Shyam Sunder, “bhai ka
phone aaya tha, pachas hazar dena hai” and 36:45 to 37:01
saying “chhote bhai ne kaha, pachas de do inko, sahab ko
pata hai ya nahi pata, mujhe nahi pata, iss chhote par yakin
nahi hai” and PW-1 identified that it was his voice and he
also admitted to have said so. This clearly shows that
accused Mukesh Kumar had played no role in the alleged
transaction but despite that, PW-1 falsely denied the
suggestion that accused Mukesh had never demanded any
bribe from him at any point of time nor he was aware about
any talks between PW-1 and accused Shyam Sunder.
ix) That on both the both the occasions of verification and
trap, the independent witness/shadow witness Gaurav
Sharma kept standing outside the office of accused Mukesh
Kumar. Hence, neither the alleged verification nor the
transaction of bribe at the time of alleged trap was
witnessed by any independent witness.
x) That the allegations of forgery raised against accused
Shyam Sunder are totally false and same is evident from the
inconsistent statement of PW-1, who at the time of his cross-
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examination deposed that the signatures of witnesses on Ex.
PW2/A were forged by accused Shyam Sunder in the
presence of accused Mukesh Kumar. Whereas, as per CBI’s
own case, accused Mukesh Kumar was not present in his
office at the time of complainant’s second visit and it was at
that time, the signatures of witnesses Seema and Vishal
were forged by accused Shyam Sunder on Ex.PW2/A.
xi) That in the recorded conversation contained in file no.
180925_1451 in Q-3 Ex.PX2 (from interval time 11:30 to
12:30), the FSO V.P. Singh is found saying “haanji ek
number par aise hi Vishal likh dena, khula chhod dena,
address main apne-aap likh doonga” and PW-1 has admitted
that said conversation took place between him and V.P.
Singh, FSO at the time when he met him in the office of
accused Mukesh Kumar on 25.09.2018. But he denied the
suggestion that he met V.P. Singh upon his second visit to
Asian Market on 25.09.2018. As per his version, he met V.P.
Singh at the time of his first meeting to Asian Market office
in the morning hours of 25.09.2018.
xii) That the content of voice identification-cum- voice
transcript memo Ex.PW1/G (Colly.) has falsified the
deposition of PW1 wherein he claimed that on 08.10.2018,
when said memo was prepared, his brother Rajesh Kumar
i.e. PW-2 was also accompanying him and that he had also
signed the said memo. Whereas, on the contrary, as per
deposition of Rajesh Kumar/ PW-2, after the date of trap, he
had visited CBI office only once i.e on 09.10.2018. Even the
memo Ex.PW1/G dated 08.10.2018 nowhere bears his
(PW2’s) signatures.
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Xiii) That as per PW-1, the DVR was taken from him by CBI
officer after completion of wash proceeding, seizure of
currency notes and the challenge given to accused Shyam
Sunder by TLO but none of such facts/proceedings are found
recorded in Q-3.
Xiv) That complainant/Naresh Kumar/PW-1 has improved
his version to the extent of demand of Rs.50,000/- allegedly
raised by accused Mukesh Kumar at the time of verification
done on 25.09.2018. Because, neither the verification memo
Ex. PW1/D finds mention of any such fact nor the recorded
conversation of Q-2 contains any such content of speech
attributable to accused Mukesh Kumar nor even its
transcript (part of Ex. PW1/H) mentions any such utterance
regarding demand of Rs.50,000/- from accused Mukesh
Kumar.
(xv) Similarly, there is an improvement regarding the
alleged post-trap conversation between accused Mukesh
and Shyam Sunder because, the conversation contained in
Q-3 reflects that accused Shyam Sunder simply conveyed to
accused Mukesh Kumar regarding his having received Rs.
50,000/- without disclosing him the source of said receipt.
Whereas, PW-1 in his deposition before the Court made an
improvement by saying that accused Shyam Sunder had
conveyed to the accused Mukesh Kumar about his having
received Rs.50,000 from complainant Naresh.
xvi) That none of independent witnesses joined in trap had
witnessed the alleged recovery of tainted money from
accused Shyam Sunder as admittedly, they were neither
present at the time of alleged demand nor at the time of
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acceptance of money nor even they saw the money in the
hands of the accused Shyam Sunder at any point of time. As
per their version, when they entered into the room of Asstt.
Commissioner, the tainted money was lying on the floor.
xvii) That in catena of judgments, Hon’ble Apex Court has
observed that the testimony of the complainant in the trap
cases is in the nature of an accomplice and thus, it cannot
be believed without corroboration from an independent
source. Whereas, in the instant case, neither the alleged
demand was witnessed by any independent witness nor the
alleged acceptance of tainted money.
xviii) That the Sanction Order under Section 19 of PC Act, is
defective and showing no application of mind by the
Competent Authority as it was never supplied with
recordings of questioned conversation Q1, Q-2 and Q-3.
Further, the voice identification report has been prepared by
PW-18, who did not have any requisite qualification in the
field of voice examination.
xix) That as per the verification officer/PW-12, he himself
had deposited Q1 and Q2 in the Malkhana but said fact was
categorically denied by the TLO/PW-20 during his deposition
before the Court. For said material contradictions and
discrepancies, even the verification officer and TLO are not
trustworthy witnesses and their depositions also cannot be
relied upon for any purpose.
xx) That from various contradictions in the deposition of
complainants and the independent witness Gaurav Sharma,
it is apparently clear that the verification reports Ex.PW1/C
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and Ex.PW1/D were fabricated by the verification officer,
who is a partisan witness and therefore, his testimony
cannot be relied upon without any corroboration from the
independent source.
xxi) That CBI has miserably failed to establish the
authenticity and veracity of the verification and trap
proceedings. The testimonies of the witnesses examined by
the prosecution in this regard, are not in consonance with
the factual content narrated in the verification memo
Ex.PW1/C and Ex.PW1/D, handing over memo Ex.PW1/E,
recovery memo Ex.PW1/F and the actual conversation
contained in Q-1, Q-2 and Q-3.
xxii) That CBI has miserably failed to establish any demand
of bribe direct or indirect which can be attributed to any of
the accused and the same is also evident from the perusal
of the transcription memos of the conversation Q1, Q2 and
Q3, which nowhere reflect that any such demand of illegal
gratification was ever raised by either of the accused.
Analysis of the Material by the Court
38. Before referring to the respective contentions
raised at Bar, I may first refer to the judgment of Hon’ble
Apex Court in P. Sathyanarayana Murthy v. District
Inspector of Police, State AP and another 2015 10
SCC 152 wherein, the Hon’ble Apex Court referred to its
previous decision in Sujit Biswas v. State of Assam
[(2013) 12 SCC 406 :(2014) wherein, it was observed that
“suspicion, however, grave cannot take the place of proof
and the prosecution cannot afford to rest its case in the
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realm of “may be” true but has to upgrade it in the domain
of “must be” true in order to steer clear of any possible
surmise of conjecture. It was held, that the court must
ensure that miscarriage of justice is avoided and if in the
facts and circumstances, two views are plausible, then the
benefit of doubt must be given to the accused.
39. Indisputably, for constituting an offence under
Section 7/7A of the PC Act, 1988, the demand of illegal
gratification is a sine qua non and for arriving at the
conclusion as to whether all the ingredients of the offence
viz. demand, acceptance and recovery of amount of illegal
gratification have been satisfied or not, the court must take
into consideration the facts and circumstances brought on
the record in their entirety. Mere recovery of tainted money
is not sufficient to convict the accused when substantive
evidence in the case is not reliable, unless there is evidence
to prove payment of bribe or to show that money was taken
voluntarily as bribe. Mere receipt of amount by the accused
is not sufficient to fasten guilt, in the absence of any
evidence with regard to demand and acceptance of the
amount as illegal gratification.
40. In this regard, I may refer to the latest judgment
of the Hon’ble Apex Court in ‘Soundarajan V State Rep.
by the Inspector of Police Vigilance Anticorruption
Dindigul, Criminal Appeal No. 1592 of 2022 decided
on 17th April, 2022’. In said judgment Hon’ble Apex Court
had the occasion to deal with the unamended provision of
Section 7 and 13 PC Act. But, even in the amended Section
7 and newly inserted Section 7A PC Act, the legislature has
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used similar words, ‘obtains’ or ‘accepts’ or ‘attempts to
accept’ as used in the unamended Section 7 PC Act.
Therefore, reference to the aforementioned judgment can
be made for knowing the interpretation given by the Hon’ble
Apex Court to said words/phrases. The relevant part of the
aforementioned judgment reads as under:-
“9. It is well settled that for establishing the
commission of an offence punishable under
section of the PC Act, proof of demand of
gratification and acceptance of the
gratification is a sine qua non. Moreover, the
Constitution Bench in case of Neeraj Dutta
has reiterated that the presumption under
section 20 of the PC Act can be invoked only
on proof of facts in issue, namely, the
demand of gratification by the accused and
the acceptance thereof.
12. There is no circumstantial evidence of
demand for gratification in this case. In the
circumstances, the offences punishable under
Section 7 and Section 13(2) read with Section
13(1)(d) have not been established. Unless
both demand and acceptance are
established, offence of obtaining pecuniary
advantage by corrupt means covered by
clauses(1) and (ii) of Section 13(1)(d) cannot
be proved.”
41. In the Constitution Bench Judgment in “Neeraj
Dutta V State (Govt. of NCT of Delhi), 2022 SCC
OnLine SC1724′, the Hon’ble Apex Court was to answer
the question framed for determination and while doing so
the Hon’ble Court discussed the entire gamut of law on the
provisions of Section 7, 13(1)(d) and 20 of PC Act, 1988 and
after referring to all its previous judgments on this issue, the
gist of the discussion was summarized by the Hon’ble Apex
Court in para 88 of the judgment, which reads as under:
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“88. What emerges from the aforesaid
discussion is summarised as under:
88.1. (a) Proof of demand and acceptance of
illegal gratification by a public servant as a
fact in issue by the prosecution is a sine qua
non in order to establish the guilt of the
accused public servant under Section 7 or
Sections 13(1)(d)(i) and (ii) of the Act.
88.2. (b) In order to bring home the guilt of
the accused, the prosecution has to first
prove the demand of illegal gratification and
the subsequent acceptance as a matter of
fact. This fact in issue can be proved either by
direct evidence which can be in the nature of
oral evidence or documentary evidence.
88.3. (c) Further, the fact in issue, namely,
the proof of demand and acceptance of illegal
gratification can also be proved by
circumstantial evidence in the absence of
direct oral and documentary evidence.
88.4. (d) In order to prove the fact in issue,
namely, the demand and acceptance of illegal
gratification by the public servant, the
following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe-giver
without there being any demand from the
public servant and the latter simply accepts
the offer and receives the illegal gratification,
it is a case of acceptance as per Section 7 of
the Act. In such a case, there need not be a
prior demand by the public servant.
(ii) On the other hand, if the public servant
makes a demand and the bribe-giver accepts
the demand and tenders the demanded
gratification which in turn is received by the
public servant, it is a case of obtainment. In
the case of obtainment, the prior demand for
illegal gratification emanates from the public
servant. This is an offence under Sections
13(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the
offer by the bribe giver and the demand by
the public servant respectively have to be
proved by the prosecution as a fact in issue.
In other words, mere acceptance or receipt of
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an illegal gratification without anything more
would not make it an offence under Section 7
or Sections 13(1)(d)(i) and (ii), respectively of
the Act.
Therefore, under Section 7 of the Act, in order
to bring home the offence, there must be an
offer which emanates from the bribe-giver
which is accepted by the public servant which
would make it an offence. Similarly, a prior
demand by the public servant when accepted
by the bribe-giver and in turn there is a
payment made which is received by the
public servant, would be an offence of
obtainment under Sections 13(1)(d)(i) and (ii)
of the Act.
88.5. (e) The presumption of fact with regard
to the demand and acceptance or obtainment
of an illegal gratification may be made by a
court of law by way of an inference only when
the foundational facts have been proved by
relevant oral and documentary evidence and
not in the absence thereof. On the basis of
the material on record, the court has the
discretion to raise a presumption of fact while
considering whether the fact of demand has
been proved by the prosecution or not. Of
course, a presumption of fact is subject to
rebuttal by the accused and in the absence of
rebuttal presumption stands.
88.6. (f) In the event the complainant turns
“hostile”, or has died or is unavailable to let in
his evidence during trial, demand of illegal
gratification can be proved by letting in the
evidence of any other witness who can again
let in evidence, either orally or by
documentary evidence or the prosecution can
prove the case by circumstantial evidence.
The trial does not abate nor does it result in
an order of acquittal of the accused public
servant.
88.7. (g) Insofar as Section 7 of the Act is
concerned, on the proof of the facts in issue,
Section 20 mandates the court to raise a
presumption that the illegal gratification was
for the purpose of a motive or reward as
mentioned in the said Section. The said
presumption has to be raised by the court as
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a legal presumption or a presumption in law.
Of course, the said presumption is also
subject to rebuttal. Section 20 does not apply
to Sections 13(1)(d)(i) and (ii) of the Act.
88.8. (h) We clarify that the presumption in
law under Section 20 of the Act is distinct
from presumption of fact referred to above in
sub-para 88.5(e), above, as the former is a
mandatory presumption while the latter is
discretionary in nature.”
42. After laying down the aforementioned
parameters, the Hon’ble Apex court answered the referred
questions in para 90 of the judgment and same is also
reproduced as under :
“90. Accordingly, the question referred for
consideration of this Constitution Bench is
answered as under:
In the absence of evidence of the
complainant (direct/primary,
oral/documentary evidence) it is permissible
to draw an inferential deduction of
culpability/guilt of a public servant under
Section 7 and Section 13(1)(d) read with
Section 13(2) of the Act based on other
evidence adduced by the prosecution.”
43. Here, I may also refer to the judgment in Neeraj
Dutta case which came to be passed by Hon’ble Apex Court
in Crl. Appeal no. 1669/2009 decided on 17.03.2023
(2023 SCC OnLine SC 280), after the decision of the
Constitution Bench on the aforementioned reference
decided on 15.12.2022 (2023 (4) SCC 731). In said
decision of Hon’ble Division Bench, the impugned order of
Hon’ble High Court confirming the judgment of conviction
passed by the Special Court whereby, the accused was
convicted under Section 7 and clause (i) and (ii) of 13(1)(d)
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r/w Section 13(2) of PC Act, 1988, was set aside by holding
that “there are no circumstances brought on record which
will prove the demand for gratification. Therefore, the
ingredient of Section 7 of PC Act were not established and
consequently the offence under Section 13(1)(d) PC Act will
not be attracted”. While setting aside the judgment of
conviction some important observations were made by the
Hon’ble Apex Court and same are contained in following
paras of the judgment:-
“13. Section 7, as existed prior to 26 th July
2018, was different from the present Section
7 . The unamended Section 7 which is
applicable in the present case, specifically
refers to “any gratification”. The substituted
Section 7 does not use the word
“gratification”, but it uses a wider term
“undue advantage”. When the allegation is of
demand of gratification and acceptance
thereof by the accused, it must be as a
motive or reward for doing or forbearing to do
any official act. The fact that the demand and
acceptance of gratification were for motive or
reward as provided in Section 7 can be
proved by invoking the presumption under
Section 20 provided the basic allegations of
the demand and acceptance are proved. In
this case, we are also concerned with the
offence punishable under clauses (i) and (ii)
Section 13(1)(d) which is punishable under
Section 13(2) of the PC Act. Clause (d) of
subsection (1) of Section 13, which existed on
the statute book prior to the amendment of
26th July 2018, has been quoted earlier. On a
plain reading of clauses (i) and (ii) of Section
13(1)(d), it is apparent that proof of
acceptance of illegal gratification will be
necessary to prove the offences under
clauses (i) and (ii) of Section 13(1)(d). In view
of what is laid down by the Constitution
Bench, in a given case, the demand and
acceptance of illegal gratification by a public
servant can be proved by circumstantial
evidence in the absence of direct oral or
documentary evidence. While answering theCBI Case No. 62/2019 (1/19) Page no. 79/134
referred question, the Constitution Bench has
observed that it is permissible to draw an
inferential deduction of culpability and/or guilt
of the public servant for the offences
punishable under Section 7 and 13(1)(d) read
with Section 13(2) of the PC Act. The
conclusion is that in absence of direct
evidence, the demand and/or acceptance can
always be proved by other evidence such as
circumstantial evidence.
14. The allegation of demand of gratification
and acceptance made by a public servant has
to be established beyond a reasonable doubt.
The decision of the Constitution Bench does
not dilute this elementary requirement of
proof beyond a reasonable doubt. The
Constitution Bench was dealing with the issue
of the modes by which the demand can be
proved. The Constitution Bench has laid down
that the proof need not be only by direct oral
or documentary evidence, but it can be by
way of other evidence including
circumstantial evidence. When reliance is
placed on circumstantial evidence to prove
the demand for gratification, the prosecution
must establish each and every circumstance
from which the prosecution wants the Court
to draw a conclusion of guilt. The facts so
established must be consistent with only one
hypothesis that there was a demand made for
gratification by the accused. Therefore, in this
case, we will have to examine whether there
is any direct evidence of demand. If we come
to a conclusion that there is no direct
evidence of demand, this Court will have to
consider whether there is any circumstantial
evidence to prove the demand.”
44. Further while invoking the provision of Section
20 of the Act, the court is required to consider the
explanation offered by the accused, if any, only on the
touchstone of preponderance of probability and not on the
touchstone of proof beyond all reasonable doubt. However,
before the accused is to call upon to explain as to how the
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amount in question was found in his possession, the
foundational facts must be established by the prosecution.
The complainant is an interested and partisan witness
concerned with the success of the trap and his evidence
must be tested in the same way as that of any other
interested witness and in a proper case, the court may look
for independent corroboration before convicting the accused
persons. Reliance in this regard is placed on Mukut Bihari
& ors. v. State of Rajasthan (2012)11 SCC 642.
45. It is one of the fundamental principles of criminal
jurisprudence that an accused is presumed to be innocent
till he is proved to be guilty. It is equally well settled that
suspicion howsoever strong can never take the place of
proof. There is indeed a long distance between accused
‘may have committed the offence’ and ‘must have
committed the offence’ which must be traversed by the
prosecution by adducing reliable and cogent evidence.
Presumption of innocence has been recognized as a human
right which cannot be washed away. Thus the prosecution
has to establish all essential of charge framed to allay this
presumption of innocence. Reliance in this regard has been
placed on the judgment in Kailash Gour v. State of
Assam 2012 (1) LR C (SC).
46. In the same very judgment in Kailash Gour v.
State of Assam (Supra), Hon’ble Apex Court also referred to
Shakila Abdul Gafar Khan v. Vasant Raghunath
Dhoble (2003) 7 SCC 749 wherein, the Hon’ble Apex Court
discussed as to what all should be taken into consideration
and what should be the approach of trial court in criminal
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trial and the court observed as under:
“The Courts exist for doing justice to the persons
who are affected. The trial/first appellate courts
cannot get swayed by abstract technicalities and
close their eyes to factors which need to be
positively probed and noticed. The court is not
merely to act as a tape recorder recording
evidence, overlooking the object of trial i.e. to get
at the truth, and oblivious to the active role to be
played for which there is not only ample scope
but sufficient powers conferred under the Code.
It has a greater duty and responsibility i.e. to
render justice in a case where the role of the
prosecuting agency itself is put in issue.’
47. Evidence is the only way to prove or disprove
anything and oral testimony apart from the documentary
evidence are the ways through which evidence is brought on
record. Where oral testimony is relied upon, then the
credibility of the witnesses becomes very important. It is to
be seen whether the witnesses are trustworthy, reliable,
narrate factual position in a proper way, truthful and that he
or she is not irresponsible or reckless or that he or she has
no mala fides, ulterior motive in deposing a particular fact
for or against a particular person or a particular act or
incident. Thus, the oral evidence has to undergo this acid
test.
48. In the instant case, one of the foremost
contention raised by Ld. Defence Counsels to challenge the
credibility of the prosecution case is the inter-se
contradictions in the version of the complainants as well as
the contradictions of their versions recorded during the trial
with their complaint dated 24.09.2018 Ex.PW1/B. Besides
that, it is vehemently contended on behalf of accused
Mukesh Kumar that CBI has miserably failed to prove any
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iota of evidence against said accused to show that he ever
raised any demand for illegal gratification or accepted it
from the complainant either himself or through any other
person. It was argued that admittedly, no tainted amount
was recovered from the possession of accused Mukesh
Kumar nor any link has been established between said
accused and the co-accused Shyam Sunder from whom the
tainted amount was allegedly recovered or who allegedly
acted on his behalf as conduit.
49. It has been further argued that the testimonies
of complainants suffer from serious contradictions and
material discrepancies and hence, cannot be relied upon.
Even the recorded conversation of Q-2, which allegedly took
place between the complainant Naresh Kumar and said
accused Mukesh Kumar or even the transcript of the said
conversation nowhere reflects any demand of bribe on the
part of said accused Mukesh Kumar. It was further argued
that demand and acceptance of the bribe is the sine-qua-
non for attracting the provisions of Section 7 or 7A of PC Act
whereas, both the said ingredients are completely lacking
qua said accused Mukesh Kumar or for that matter against
any of the accused. It was further argued that no
presumption of Section 20 of PC Act, 1988 can arise against
accused public servant in absence of the foundational facts
of demand and acceptance which CBI has miserably failed to
prove against accused Mukesh Kumar (public servant).
50. In order to correctly appreciate the above
contentions, I may refer to Section 7, 7A and 20 of PC Act,
1988 which read as under:
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7. Offence relating to public servant
being bribed. – Any public servant who,-
(a)obtains or accepts or attempts to obtain
from any person, an undue advantage, with
the intention to perform or cause
performance of public duty improperly or
dishonestly or to forbear or cause
forbearance to perform such duty either by
himself or by another public servant; or
(b)obtains or accepts or attempts to obtain,
an undue advantage from any person as a
reward for the improper or dishonest
performance of a public duty or for forbearing
to perform such duty either by himself or
another public servant; or
(c)performs or induces another public servant
to perform improperly or dishonestly a public
duty or to forbear performance of such duty
in anticipation of or in consequence of
accepting an undue advantage from any
person, shall be punishable with
imprisonment for a term which shall not be
less than three years but which may extend
to seven years and shall also be liable to fine.
Explanation 1. – For the purpose of this
section, the obtaining, accepting, or the
attempting to obtain an undue advantage
shall itself constitute an offence even if the
performance of a public duty by public
servant, is not or has not been improper.
Illustration. – A public servant, ‘S’ asks a
person, ‘P’ to give him an amount of five
thousand rupees to process his routine ration
card application on time. ‘S’ is guilty of an
offence under this section.
Explanation 2. – For the purpose of this
section,-(i)the expressions “obtains” or
“accepts” or “attempts to obtain” shall cover
cases where a person being a public servant,
obtains or “accepts” or attempts to obtain,
any undue advantage for himself or for
another person, by abusing his position as a
public servant or by using his personal
influence over another public servant; or by
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any other corrupt or illegal means;(ii)it shall
be immaterial whether such person being a
public servant obtains or accepts, or attempts
to obtain the undue advantage directly or
through a third party.
7A. Taking undue advantage to influence
public servant by corrupt or illegal
means or by exercise of personal
influence.–Whoever accepts or obtains or
attempts to obtain from another person for
himself or for any other person any undue
advantage as a motive or reward to induce a
public servant, by corrupt or illegal means or
by exercise of his personal influence to
perform or to cause performance of a public
duty improperly or dishonestly or to forbear
or to cause to forbear such public duty by
such public servant or by another public
servant, shall be punishable with
imprisonment for a term which shall no be
less than three years but which may extend
to seven years and shall also be liable to fine.
20. Presumption where public servant
accepts any undue advantage.–Where, in
any trial of an offence punishable under
section 7 or under section 11, it is proved that
a public servant accused of an offence has
accepted or obtained or attempted to obtain
for himself, or for any other person, any
undue advantage from any person, it shall be
presumed, unless the contrary is proved, that
he accepted or obtained or attempted to
obtain that undue advantage, as a motive or
reward under section 7 for performing or to
cause performance of a public duty
improperly or dishonestly either by himself or
by another public servant or, as the case may
be, any undue advantage without
consideration or for a consideration which he
knows to be inadequate under section 11.
51. It is pertinent to note that prior to Amendment
Act 16 of 2018, vide which a new provision of Section 7A has
been inserted in PC Act, the criminality was attached only to
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the act of demanding and accepting illegal gratification.
However, after said amendments which came into force
w.e.f 26.7.2018, the act of even giving bribe to a public
servant, has also been made punishable by amending
section 8 & 9 of PC Act. Since the alleged offences in this
case are pertaining to the period subsequent to 26.07.2018,
therefore, the provisions of amended Act would apply.
52. In the instant case, accused Shyam Sunder is a
private person while accused Mukesh Kumar is a public
servant and as per the case of CBI, accused Shyam Sunder
was acting as a middleman on behalf of accused Mukesh
Kumar, a public servant. As per CBI’s case, it was the
accused Shyam Sunder, who first made a telephonic call to
the complainants on 17.09.2018 and conveyed him about
the demand of Rs.1,50,000/- raised by accused Mukesh
Kumar for settling the matter pertaining to the inspection of
their FPS Shop No. 9230.
53. Before delving deep into the evidence adduced
on record, it is necessary to recount again that mere
possession and recovery of currency notes from accused
without proof of demand would not establish the offence
under Section 7 or 7-A of PC Act. In absence of any proof of
demand of illegal gratification, the use of corrupt or illegal
means or abuse of position as a public servant to obtain any
valuable thing or pecuniary advantage cannot be held to be
proved. Not only the proof of demand thus is held to be an
indispensable element, but it is essentially an inflexible
statutory mandate for establishing offences under
aforementioned provisions. Further, any presumption under
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Section 20 of the Act for the purpose of Section 7 of the Act,
would also arise only on proof of such demand. The proof of
demand of illegal gratification is thus, the gravemen of
offence under Section 7 and 7-A of PC Act.
54. At the cost of repetition, I may note again that in
a case of trap, the complainant is the interested witness on
the side of prosecution and therefore, his evidence should
be carefully scrutinized and unless his version is
corroborated by some cogent evidence, the case of
prosecution should not be accepted. Therefore, the solitary
evidence of the complainant without proper corroboration
cannot be believed to record conviction.
55. With regard to appreciation of evidence in a trap
case, the legal position was summarized by the Hon’ble
Madras High Court in ‘K.P.Kolanthai vs State By
Inspector Of Police in Crl. Appeal no. 693 of 2008
decided on 09.08.2019′ as under : –
“12. At the outset, the legal position, which
emerges regarding appreciation of evidence
in a trap, can be summarized as under:-
(i) To succeed in such a case, the Prosecution
is obliged to prove the demand of bribe
before and at the time of trap, its acceptance
and the recovery of tainted money.
(ii) The demand can be proved by testimony
of the complainant as well as from the
complaint made by him and other witnesses if
proved in accordance with law and if it is
corroborated in material particulars.
(iii) A presumption as to the demand of bribe
can also be drawn if the tainted money i.e.
the money tendered as bribe money is
recovered from the possession of the
accused, which presumption, of course, isCBI Case No. 62/2019 (1/19) Page no. 87/134
rebuttable under Section 20 of the Prevention
of Corruption Act, 1988.
(iv) If the accused gives some defence, that
can be scrutinized by the test of
preponderance of probability, while the
Prosecution must prove its case beyond all
reasonable doubt.”
13.The genesis of a trap lies in the previous
demand of bribe made by the accused from
the complainant, which becomes the basis of
laying a trap by the investigating agency.
Then, it is for the Prosecution to, again, prove
the demand at the time when the trap was
laid and thereafter, the question of
acceptance and recovery of bribe money also
is required to be proved beyond all
reasonable doubts.”
56. In order to truly understand the contentions
raised by the parties with regard to the case being proved or
not proved on essential ingredients of demand and
acceptance, we need to now dwell deeper into various
aspects of credibility, admissibility and sufficiency of the
prosecution evidence led on record, in the light of
aforementioned legal position on appreciation of evidence. I
would be evaluating the evidence under various heads in the
light of broad defence arguments. The crucial aspect for
determination would be ingredient of demand, manner of
verification and spot transaction.
57. In so far as the essential ingredient of demand of
illegal gratification is concerned, there are two sets of direct
evidence, which have been adduced by the prosecution. For
proving the essential ingredient of ‘demand’, the direct
evidence available on record is the oral/ocular evidence in
the form of verbal testimony of complainants PW-1 and PW-
2 and documentary evidence in the form of electronic
CBI Case No. 62/2019 (1/19) Page no. 88/134
evidence contained in recorded conversation of Q-2 and Q-3.
Even as per CBI case, the verification done by the CBI team
on 24.09.2018 was unsuccessful as no demand came up
from the side of accused Shyam Sunder during the
telephonic conversation between him and the complainant
and same is also evident from the conversation contained in
the memory card Q-1. During said conversation recorded in
Q-1, the accused Shyam Sunder simply asked the
complainant Naresh Kumar/PW1 to visit him in the office of
Assistant Commissioner in the Asian Market on the next date
i.e. on 25.09.2018. He (Shyam Sunder) also asked him (PW-
1) to bring his brother Rajesh Kumar and two witnesses of
the inspection proceedings conducted on 14.09.2018.
58. Admittedly, the shadow witness Gaurav Sharma
was not allowed to enter into the office of the Assistant
Commissioner Mukesh Kumar either at the time of
verification conducted in the morning of 25.09.2018 nor at
the time of trap done in the afternoon of 25.09.2018. At both
the said occasions, the shadow witness was allegedly asked
to wait outside the office and therefore, he failed to witness
the transaction of verification or the trap. In view thereof, for
the purpose of proving the demand, the ocular evidence
available with the prosecution is only that of the
complainants.
59. As already noted above, in a trap case, it is
mandatory for the prosecution to prove the demand of bribe
both before the trap i.e. at the time of verification as well as
at the time of trap. At the time of trap, the demand has to
be coupled with the acceptance of bribe and the recovery of
CBI Case No. 62/2019 (1/19) Page no. 89/134
the bribe/tainted money from the accused.
60. On the aforementioned important aspects of the
matter, the analysis of the material which has been brought
on record by both the parties, has been made by the Court
in the light of their respective arguments and supporting
case law. The discussion has been made under following
heads:-
(1) Pre-complaint Demand
(2) Post-complaint Demand raised at the time of
Verification.
(3) Demand raised at the of Trap
(4) Discrepancies in the Transcripts of Q1, Q-2 and Q-3.
(5) Acceptance and Recovery of tainted money.
(6) Validity of Sanction under Section 19 of PC Act.
(7) Admissibility of Expert Opinion on Voice Identification.
Analysis of material on Pre-Complaint Demand
61. As per the case of the CBI, a raid was carried out
by the two officers of Food and Supply Department (South)
GNCT, Delhi at complainant’s Fair Price Shop no. 9230 on
14.09.2018. Thereafter, on 17.09.2018, complainant Naresh
Kumar received a phone call from accused Shyam Sunder
and conveyed him regarding demand of Rs.1,50,000/- raised
by accused Mukesh Kumar in connection with the
aforementioned raid and further threatened that in case, the
demand was not fulfilled, FIR would be lodged against the
CBI Case No. 62/2019 (1/19) Page no. 90/134
complainants and the licence of their shop would also be
cancelled. Thereafter, on 21.09.2018, the complainant met
the Asstt. Commissioner, Food and Supply Department i.e
the accused Mukesh Kumar in his office at Asian Market,
Pushp Vihar where the complainant was again threatened
that unless he pays Rs.50,000/-, the licence of his shop
would be cancelled and he would also have to face the
prosecution.
62. For pre-complaint demands of illegal
gratification allegedly raised from the complainant Naresh
Kumar on 17.09.2018 and 21.09.2018, the case of CBI rests
solely on the testimony of the complainant/PW1 and co-
complainant/PW-2 as there is no other independent
evidence to corroborate their version except the call records
of their mobile phones for showing exchange of calls
between their phone numbers on 17.09.2018. It is pertinent
to note that as per the CDR of mobile phone 8178967723
subscribed in the name of accused Shyam Sunder, which is
part of Ex.PW4/1(colly)(D-23), only two calls were
exchanged between him (accused Shyam Sunder) and the
complainant Naresh Kumar (at complainant’s phone number
9910691882) on 17.09.2018 and both the calls were made
by the complainant Naresh Kumar and not by accused
Shyam Sunder, which is contrary to the version of
PW-1/complainant Naresh Kumar, who both in his complaint
Ex PW1/B as well as in his deposition before the court stated
that he had received a call from accused Shyam Sunder on
17.09.2018 and was conveyed about the demand of Rs. 1.5
lakh raised by accused Mukesh Kumar. As per CDR Ex.
PW4/1 (colly) both the calls were made by the complainant
CBI Case No. 62/2019 (1/19) Page no. 91/134
Naresh Kumar to accused Shyam Sunder and it falsifies the
version of PW-1 that accused Shyam Sunder gave him a
telephonic call on 17.09.2018 for conveying the demand of
Rs. 1.5 lakh.
63. With regard to the alleged demand of
21.09.2018, the version of PW-1 is not in consonance with
his complaint dated 24.09.2018 which is available on record
as Ex.PW1/B. As per said complaint Ex. PW1/B, on
21.09.2018, complainant Naresh Kumar had met the
Assistant Commissioner Mukesh Kumar in his office in Asian
Market, Pushp Vihar where, he/PW1 asked him to tell him
(PW1) about his mistake but he (Mukesh Kumar) instead told
that proceedings against his shop would soon commence
and in case, he (complainant Naresh) wanted to avoid the
cancellation of license of his shop, he had to pay him
(Mukesh Kumar) at least Rs.50,000. In the complaint, there
is no mention about the presence of co-accused Shyam
Sunder with accused Mukesh Kumar at the time of said
meeting of 21.09.2018, which allegedly took place in Asian
Market office of accused Mukesh Kumar.
64. Whereas, in his testimony before the Court, PW1
came up with a different story as he deposed that on
20.09.2018, when he met accused Shyam Sunder in the
office of accused Mukesh Kumar, he (Naresh Kumar/PW-1)
was asked to come again to meet accused Mukesh Kumar
on 21.09.2018 at 09.30 AM. On 21.09.2018, when he
reached down to the office of accused Mukesh Kumar at
Asian Market, at about 09.30 AM, both the accused came
there in a car and when PW1 expressed his inability to
CBI Case No. 62/2019 (1/19) Page no. 92/134
accused Mukesh Kumar to pay Rs.1.5 Lakh, he told him (PW-
1) to pay at least Rs.50,000/-.
65. As is clear from the above, there are serious
discrepancies in the two versions of the complainant. As per
the version of PW-1 narrated before the Court during trial,
the alleged meeting of 21.09.2018 took place not in the
office but on the road while both the accused came there in
the car. Whereas, as per the complaint, the said meeting
took place only with accused Mukesh Kumar in his office in
the Asian Market and accused Shyam Sunder was not
present in the said meeting. Furthermore, complainant came
for said meeting pursuant to his previous meeting with
accused Shyam Sunder in the Asian Market Office on
20.09.2018. Whereas, there is no mention of any such
meeting of 20.09.2018 in the entire complaint Ex.PW1/B.
66. In the light of above discrepancies in the two
versions of the complainant/PW-1, his testimony does not
inspire confidence and no reliance can be placed on his
testimony with regard to alleged pre-complaint demands.
CBI has failed to adduce any credible evidence to prove on
record the alleged fact of pre-complaint demands.
Furthermore, there is no corroborating evidence in this
regard. Indeed the CDR Ex.PW4/1(colly)(D-23), which is
being placed on record to corroborate the complainant’s
version, in fact has falsified his version to the extent that the
call on 17.09.2018 were made by him to accused Shyam
Sunder and not by accused Shyam Sunder, as alleged by
him.
CBI Case No. 62/2019 (1/19) Page no. 93/134
Post-Complaint Demand Raised at the Time of
Verification dated 25.09.2025
67. Let us now look at the evidence adduced by CBI
for proving the post complaint demand. As the verification
done on 24.09.2018 was admittedly unsuccessful and
incomplete, verification was done again on 25.09.2018. With
regard to the alleged demand raised at the time of
verification conducted on 25.09.2018, the reliance has been
placed on the direct evidence ocular as well as
documentary. Besides that, there are other
link/corroborative evidences, which would assume
importance only after the direct evidence adduced on record
is found to be credible, clinching and sufficient to indicate
the presence of demand.
68. Ocular direct evidence is the testimony of
complainant/PW-1 and the documentary evidence is the
recorded conversation contained in the memory card Q-2,
which the complainant was carrying with him in DVR kept in
his pocket at the time when he entered into the office of
accused Mukesh Kumar. It is an admitted case of CBI that at
the time of verification dated 25.09.2018, the shadow
witness Gaurav Sharma as well as the co-complainant
Rajesh Kumar were waiting outside the office as they were
allegedly not allowed to go inside with complainant Naresh
Kumar/PW1.
69. PW-1 in his examination-in-chief has testified
that on 25.09.2018, he with his brother Rajesh (PW-2) had
visited the CBI office at 08 to 08.15 AM, and there they met
the Verifying Officer SI Umesh and the independent witness
CBI Case No. 62/2019 (1/19) Page no. 94/134
Gaurav Sharma. The version of PW-1 with regard to
preparatory proceedings of verification has already been
discussed in his testimony under the heading of ‘prosecution
evidence’. We may again revert back to said portion of his
deposition to check the correctness of the procedure
adopted by the verifying officer provided sufficient material
is found available in the questioned conversation recorded in
Q-2 to establish the essential ingredient of demand.
70. With regard to verification dated 25.09.2019,
complainant/PW-1 has deposed that at about 08.50 AM, they
(PW-1, his brother Rajesh Kumar/PW-2, independent witness
Gaurav Sharma/PW-9 and SI Umesh/PW12) left the CBI office
and reached Asian Market office of the accused Mukesh
Kumar at 09.30 AM. The DVR in switched on mode with
blank memory card was put in his (PW’s) pant pocket. After
they reached the office, they were informed that accused
Mukesh Kumar would reach shortly. After knowing this, all
three of them went downstairs and apprised the Verifying
Officer that accused Mukesh Kumar was yet to reach the
office. DVR was taken back from the complainant and
switched off. At about 10.30 AM, again the DVR was given
to complainant/PW-1 in switched on mode and PW-1 with his
brother Rajesh/PW1 and Gaurav Sharma/PW9 again went
upstairs. PW-1 was taken inside the office of accused
Mukesh Kumar by the accused Shyam Sunder while his
brother Rajesh and the independent witness Gaurav Sharma
were asked to wait outside.
71. PW-1 Further deposed that after entering into
the office, he again requested accused Mukesh Kumar to
CBI Case No. 62/2019 (1/19) Page no. 95/134
reduce the amount to which, accused Mukesh told him
“matter khatam karo, baki sab baad ki batten hain”.
With the hand and eye gesture, accused Mukesh Kumar
asked complainant to talk to accused Shyam Sunder, who
took him (PW-1) in a small adjoining room, where accused
Shyam Sunder told him (PW-1) to give a sum of Rs.70,000/-
i.e. Rs.50,000/- for accused Mukesh Kumar and Rs.20,000/-
for FSO and FSI and further asked him to bring the money
quickly to finish the task. Further, as per the version of
PW-1, after he came out in the main room where accused
Mukesh was sitting, he again requested accused Mukesh
Kumar to reduce the amount but he instead told him “hum
baithen hain tumhare liye, tumhare liye aakhir tak
ladenge”. PW-1 further deposed that he was again asked
by accused Mukesh Kumar to arrange money quickly.
72. Memory card Q-2 contains the recorded
conversation of the verification dated 25.09.2019, which has
been relied upon by CBI to corroborate the aforementioned
version of PW-1 regarding alleged demand raised by the
accused persons at the time of verification conducted in pre-
lunch hours of 25.09.2018. The transcript of Q-2 Ex. PW1/H
(colly) was prepared vide transcription-cum-voice
identification memo dated 08.10.2018 available on record as
Ex.PW1/G. Q-2 contains 2 files bearing No. 180925_927 and
180925_1034 and the transcript of the conversation
contained in said files is the part of Ex.PW1/H (from page 2
to 14). As per the transcript, the speakers of the
conversation contained in file No. 180925_927, are shown to
be complainant Naresh Kumar/PW-1, his brother Rajesh
Kumar, FSO V.P. Singh and accused Shyam Sunder.
CBI Case No. 62/2019 (1/19) Page no. 96/134
73. The recorded conversation of the said file no.
180925_927 however, does not reflect any iota of material
to indicate any element of demand for illegal gratification or
undue advantage raised from the side of the accused.
Rather said conversation appears to have taken place
between said speakers on 25.09.2018, when complainants
visited the office before the arrival of accused Mukesh
Kumar. Same is also evident from the transcript itself where
on page 9, complainant Naresh Kumar/PW-1 is shown to
have spoken that he would come at 11-11:30.
74. As per further verification report dated
25.09.2018 Ex. PW1/D, the complainants alongwith the
independent witness Gaurav Sharma entered into the office
of Asstt. Commissioner in the Asian Market for the purpose
of verification, firstly at 10:15 am and even at that time
complainant was carrying the DVR with him in switched on
mode. However, they came back just after some time as
accused Mukesh Kumar had yet not reached the office and
they were informed that he would come around 10:30 am.
At about 10:34 am, complainants were again sent to meet
the suspect officer Mukesh Kumar and his conduit Shyam
Sunder (private person) and the DVR was again handed over
to complainant Naresh Kumar, who alongwith his brother
Rajesh Kumar and the independent witness Gaurav Sharma
again went to the office of accused Mukesh Kumar. As per
the memo, the complainants and the independent witness
Gaurav Sharma returned from the office at about 11:20 am
and DVR was taken from the complainant Naresh Kumar and
was switched off.
75. From the conversation contained in file No.
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180925_927, it appears that during said conversation,
complainant was asked to get signatures of witnesses
namely, Seema and Vishal, who were the witnesses of the
proceedings of inspection conducted by FSO/FSI on the
complainant’s FPS shop no. 9230 on 14.09.2018. However,
it appears that during trial, the complainant Naresh
Kumar/PW-1 wrongly attributed said conversation to their
alleged visit of 24.09.2018 to the office of Asstt.
Commissioner. Because in his deposition dated 18.11.2019
(page no.5), PW-1 deposed that on 24.09.2018, he alongwith
his brother Gaurav Sharma had gone to Asian Market, where
accused Mukesh Kumar was not available but he talked to
accused Shyam Sunder, who took him to the office of
V.P.Singh FSO and told him to call witnesses Seema and
Vishal for signatures on some documents. Whereas, as per
CBI case, on 24.09.2018 only a telephonic call was made on
the mobile phone of accused Shyam Sunder who simply
asked the complainant Naresh Kumar/PW-1 to visit the office
at Asian Market on 25.09.2018 at 9:30 am. Even the
verification report dated 24.09.2018 Ex. PW1/C, does not
talk about any such physical visit of the complainants to the
office of Asstt. Commissioner on 24.09.2018.
76. During course of final arguments, the
conversation contained in another file bearing no.
180925_1034 of Q-2, was also carefully heard. The relevant
conversation starts after 33 minutes i.e after the accused
Mukesh Kumar arrives in the office. As per Ex. PW1/H,
transcript of said conversation is on page no. 13 and 14
between point X to X, which reads as under :-
CBI Case No. 62/2019 (1/19) Page no. 98/134
श्याम सुन्दर साहब आ गए…. थोड़ा रूक जाओ ये इतना जाम क्यों लगता है …..
अच्छा रोड़ पर गाडियां….. खड़ी रहती है आपका का काम क्या है अपना
काम बोलो हू…ं . बस मैं देखता हूं आप वेट करोनरेश सर नमस्कार जी, सर सुबह आठ बजे से बैठे है, सर एक छोटी सी एक
छोटी सी request है ये बड़ी मेहरबानी होगीमुकेश कुमार मुझे पता है मैनें इतना किया है मैंने कितने पापड़ बेले है आपके लिए
नरेश बिल्कुल सर बिल्कुल दस बारह दिन कोई नहीं रूकता मुझे भी पता है एक
छोटी सी से कोई इंतजार नहीं करता… ये बड़ी मेहरबानी होगी मेरा छोटा
भाई बाहर खड़ा है ये छोटे भाई की दकु ान है 9230…. मेरा छोटा भाई
जो बाहर खड़ा है… सर भाई (श्याम सुन्दर) का फोन आया था साहब को
पचास करना है सर बताओ क्या करना है….इक्ट्ठा करना है या सब का
अलग अलग करना है।
मुकेश कुमार वो मेटर बाद की बात है पहले ये काम खत्म करा नरेश छोटे भाई को free कर दं ू काम खत्म हो जाए श्याम सुन्दर इधर आओ मुकेश कुमार खत्म कर यार नरेश पचास दे दे साहब को पता है या नहीं पता मुझे नहीं पता... इन छोटे वाले
पर यकीन नही है बिल्कुल भी इक्ट्ठा करना है या अलग अलग
श्याम सुन्दर 70,… 50 इनके 20 उनके इस्पेक्टर साहब के मेरे हिसाब से
नरेश पचास कर दं ू बात हो गयी आपकी केस तो नहीं होगा फिर बाद में……..
श्याम सुन्दर अरे नहीं नहीं केस का क्या मतलब…
नरेश कोई लफडा तो नहीं मर जाएगा वो बेचारा......सर में लेने जा रहा हूं
श्याम सुन्दर जल्दी आ जाओ
मुकेश कुमार मेटर खत्म कर जहां होता है वहां खत्म कर दो। कु छ चीजें है जो हमारे
हाथ से होगी
नरेश आपके हाथ में सर.........
मुकेश कुमार मेरे हाथ में जहां तक है ना जब तक है ना मैं बचाऊंगा
नरेश आपके हाथ
मुकेश कुमार लेकिन......खत्म कर.....
श्याम सुन्दर वो तो agree नहीं हुआ था
CBI Case No. 62/2019 (1/19) Page no. 99/134
मुकेश कुमार मैंने बोल तो दिया था
नरेश इन्होंने पूरा आपके ऊपर छोड़ दिया बोला जो साहब बोलेगे वही करूगा
श्याम सुन्दर वही तो तीन दिन शनिवार को आप नहीं आए….
मुकेश कुमार शनिवार को आया.....तुम नहीं आए
श्याम सुन्दर अभी शनिवार को, अंकल कौनसे दिन आए थे
नरेश शुकवार दोपहर चौदह तारीख को
श्याम सुन्दर चलो कोई नहीं अंकल
मुकेश कुमार साइन करो.......यार हम बैठ है तेरे लिए...... कल तक बैठे है तेरे लिए
आखिर तक लड़ लेंगे तेरे लिए
77. The said part of the conversation was carefully
heard in the light of the deposition of PW-1 dated
20.08.2019 (from page 7 to 8). As per his version, after he
(PW-1) entered into the office of accused Mukesh Kumar, he
again requested Mukesh Kumar to reduce the amount but
he told him ‘वो मेटर बाद की बात है पहले ये काम खत्म करा”. Then he
(accused Mukesh Kumar) allegedly made a gesture with his
hands and eyes towards accused Shyam Sunder and asked
him to talk to complainant/PW-1. Accused Shyam Sunder
then took him (PW-1) in a small room which was inside the
room of accused Mukesh Kumar. There accused Shyam
Sunder asked complainant/PW-1 to give Rs. 70,000/-, out of
which Rs.50,000/- was to be paid to Mukesh Kumar and
Rs. 20,000/- to FSO and FSI.
CBI Case No. 62/2019 (1/19) Page no. 100/134
78. However, in the entire conversation of file
bearing no. 180925_1034 of Q-2, accused Mukesh Kumar
nowhere appears to have raised any demand for money.
Indeed there appears to be no conversation from his side
relating to money. As per CBI case, it was accused Shyam
Sunder, who was acting as per his directions and after he
was so directed by accused Mukesh Kumar by gesture of
hand and eyes, he (Shyam Sunder) took the
complainant/PW-1 to a small room where he demanded Rs.
70,000/- , Rs. 50,000/- for accused Mukesh Kumar and Rs.
20,000/- for FSO and FSI. However, there is no independent
evidence to support said version of complainant that
accused Mukesh Kumar had gestured towards accused
Shyam Sunder to ask him to talk to complainant.
79. In absence of any independent evidence, the sole
testimony of the complainant cannot be believed to connect
the alleged demand raised by the accused Shyam Sunder
with the accused Mukesh Kumar especially, when in said
conversation with accused Mukesh, complainant/PW-1
Naresh Kumar has stated that “…… मेरा छोटा भाई बाहर खड़ा है ये
छोटे भाई की दक
ु ान है 9230…. मेरा छोटा भाई जो बाहर खड़ा है… सर भाई का
फोन आया था साहब को पचास करना है सर बताओ क्या करना है ….इक्ट्ठा करना है
या सब का अलग अलग करना है।”. Thereafter, after he was taken in a
separate room by accused Shyam Sunder, he had a
conversation with accused Shyam Sunder, where he (PW1)
further uttered that “जैसे, उसने छोटे ने कहा, पचास दे देना इनको, पता
नहीं साहब को पता है या नहीं पता मुझे नहीं पता…”. Whereas, in the
transcript said conversation with accused Shyam Sunder,
which allegedly occurred in the separate room, is incomplete
CBI Case No. 62/2019 (1/19) Page no. 101/134
as certain words which are audible in the conversation are
missing from the transcript.
80. For clarity sake, I may again refer to the relevant
part mentioned in the transcript, which reads as “पचास दे दे
साहब को पता है या नहीं पता मुझे नहीं पता… इन छोटे वाले पर यकीन नही है बिल्कुल
भी इक्ट्ठा करना है या अलग अलग”. Whereas, this conversation is
actually like, “जैसे, उसने छोटे भाई ने कहा, पचास दे देना इनको, पता नहीं
साहब को पता है या नहीं पता मुझे नहीं पता….. क्यों छोटे ने मुझे कती यकीन नहीं
बिलकुल भी … ये पूछना था की इनके कितने देने है उनके अलग करने है या इनके
अपने आप करेंगे साहब … मेरे को ये doubtful हो रहा है मामला”. It is after
this part of speech attributed to complainant Naresh Kumar,
the accused Shyam Sunder is heard saying that “70,… 50
इनके 20 उनके इस्पेक्टर साहब के मेरे हिसाब से”.
81. From the above utterances of the
complainant/PW-1 in Q-2, it appears that no demand was
ever raised from the complainant/PW-1 . Indeed it was his
younger brother Rajesh Kumar/PW-2 who asked him (PW-1)
to pay Rs. 50,000/- to the Asstt. Commissioner (accused
Mukesh Kumar), who has been referred as ‘sahab’ in the
above conversation with Mukesh. But since, PW-1 had no
trust on his younger brother, he (PW-1) was doubtful if such
demand had been actually raised by the Asstt.
Commissioner and in order to verify, he asked accused
Mukesh Kumar as well as Shyam Sunder as to what was
required to be done i.e. whether said amount was to be paid
together or separately. It is only after this query from the
complainant, accused Shyam Sunder stated that “70,… 50
इनके 20 उनके इस्पेक्टर साहब के मेरे हिसाब से”. If the above
CBI Case No. 62/2019 (1/19) Page no. 102/134
communication is seen in entirety, there seems to be no
demand coming up even from the side of accused Shyam
Sunder as he also seems to have only disclosed about the
apportionment of money after he was asked so by the
complainant/PW-1 in the separate room.
82. It has been argued on behalf of the CBI that in
the aforementioned transcript from X to X on page 13 of Ex.
PW1/H (colly), the complainant Naresh Kumar had first
talked to accused Mukesh Kumar and thereafter, to accused
Shyam Sunder after he was taken to a separate room. Ld PP
argued that in the speech ascribed to complainant while he
speaks to Mukesh in the words ” …….सर भाई (श्याम सुन्दर) का फोन
आया था साहब को पचास करना है…….”, the word ‘भाई’ has been
referred to accused Shyam Sunder and not to his brother
Rajesh Kumar. However, the reading of portion ‘X’ to ‘X’ as
a whole shows that no such inference can be gathered from
said utterances. I don’t feel convinced with the argument
that the word “भाई” in said utterance is referable to accused
Shyam Sunder. Rather in my considered view, the
complainant had referred to his younger brother Rajesh,
who is alleged to have called him (PW-1) to ask him to pay
Rs. 50,000/-.
83. Furthermore, in the file bearing no.
180925_1034 of Q-2, the part of the conversation ascribed
to the complainant from 36:55 and ending at 37:01 minutes,
despite being clearly discernible has not been correctly
translated in the transcript Ex.PW1/H (colly) where it reads
as, “पचास दे दे साहब को पता है या नहीं पता मुझे नहीं पता… इन छोटे वाले पर
यकीन नही है बिल्कुल भी इक्ट्ठा करना है या अलग अलग”. I have carefully
CBI Case No. 62/2019 (1/19) Page no. 103/134
heard said part of the conversation by using the headphones
and same is found to be actually worded as “जैसे, उसने छोटे भाई
ने कहा, पचास दे देना इनको, पता नहीं साहब को पता है या नहीं पता मुझे नहीं
पता….. क्यों छोटे ने मुझे कती यकीन नहीं बिलकुल भी”
84. From the aforementioned actual content of
speech, it appears that complainant/PW1 had a doubt upon
his younger brother (Rajesh/PW2), who had asked him to
pay Rs. 50,000/- by saying “साहब को पचास करना है” . The
combined reading of said lines with the remaining part of
said conversation makes it clear that ‘bhai’ has been
referred to complainant’s younger brother Rajesh Kumar
and not to accused Shyam Sunder as suggested by the
prosecution. Upon careful comparison of content of audio
recording of Q-2, it has been found that certain parts of the
transcript are not identical with the actual speech contained
therein. As already noted above, the conversation in Q-2
starting from 36:55 and ending at 37:01 is mentioned in the
transcript as “पचास दे दे साहब को पता है या नहीं पता मुझे नहीं पता… इन
छोटे वाले पर यकीन नही है बिल्कुल भी इक्ट्ठा करना है या अलग अलग” is
actually found to be worded as “जैसे, उसने छोटे भाई ने कहा, पचास दे
देना इनको, पता नहीं साहब को पता है या नहीं पता मुझे नहीं पता….. क्यों छोटे ने
मुझे कती यकीन नहीं बिलकुल भी …”.
85. Upon careful analysis of the actual content of
the conversation contained in file no. 180925_1034 of Q-2, it
does not found to contain any material to show that any
demand of money originated from the side of the accused.
Rather said conversation indicates that it was Rajesh
Kumar/PW-2, the younger brother of complainant Naresh
CBI Case No. 62/2019 (1/19) Page no. 104/134
Kumar, who asked the complainant/PW-1 to pay Rs. 50,000/-
to the accused Mukesh Kumar. Had it not been so, there
would not have been any occasion for the complainant/PW1
to further say it to accused Shyam Sunder after he was
taken to a separate room that “जैसे, उसने छोटे भाई ने कहा, पचास दे
देना इनको, पता नहीं साहब को पता है या नहीं पता मुझे नहीं पता….. क्यों छोटे ने
मुझे कती यकीन नहीं बिलकुल भी”. Whereas, PW-2 Rajesh Kumar, the
younger brother of the complainant, in his deposition
nowhere raised any such claim that it was he from whom
the demand was raised by accused or that he had conveyed
said demand to his brother Naresh Kumar/PW-1.
86. If the deposition of complainant/PW1 is seen in
the light of the conversation contained in Q-2, he appears to
have gravely improved his version by saying that after he
came back to the room where accused Mukesh Kumar was
sitting, he was again asked by accused Mukesh Kumar to
quickly bring the money. Whereas, neither the audio
recording of Q-2 nor its transcript supports said assertion of
PW1 that he was again asked by accused Mukesh Kumar to
quickly bring the money. In view thereof, the prosecution
case suffers from serious infirmities making it completely
unreliable even on post-complaint demand allegedly raised
at the time of verification conducted on 25.09.2018.
Demand Raised at the Time of Trap
87. As per recovery memo dated 26.09.2018 Ex.
PW1/F, at the time of trap, accused Mukesh Kumar was not
present in the office. The shadow witness Gaurav Sharma
was asked to wait outside the office of Asstt. Commissioner
and only the complainant Naresh Kumar/PW-1 and co-
CBI Case No. 62/2019 (1/19) Page no. 105/134
complainant i.e. his brother Rajesh Kumar/PW-2 went inside
the office with the accused Shyam Sunder. After entering
into the office, accused Shyam Sunder asked for bribe
amount and accordingly, the bribe amount was handed over
by the complainant to accused Shyam Sunder, who
accepted the tainted amount of Rs. 50,000/- from his right
hand and after folding it with left hand, he kept the same in
his right hand.
88. Ex. PW1/F further mentions that at 1512 hours
(03:12 pm), a missed call was received by TLO C.M.S.Negi
from the mobile phone of Rajesh Kumar/PW-2, as pre-
decided signal and immediately thereafter, CBI team with
the independent witness Rahul Jaiswal rushed to the office of
Asstt. Commissioner at the first floor where they found
Rajesh Kumar and Gaurav Sharma standing outside the
office. Upon an inquiry, Rajesh Kumar indicated towards the
office room of Asstt Commissioner. Thereafter, CBI team
with both the independent witnesses and the complainant
Rajesh Kumar entered into the office. SI Umesh Kumar
caught hold of the left hand of the accused Shyam Sunder
while Sudeep Punia caught hold of his right hand wrist. The
memo further mentions that TLO introduced himself and
other members of team to the accused Shyam Sunder and
challenged him for having accepted the bribe amount of
Rs.50,000/- from complainant Naresh Kumar upon which,
accused Shyam Sunder got perplexed and threw away the
trap money in the room. From said narration of facts in the
recovery memo Ex. PW1/F, it appears that when the CBI
team reached the spot, the tainted money was found lying
on the floor of the room as it is nowhere mentioned in the
CBI Case No. 62/2019 (1/19) Page no. 106/134
memo that it was ever seen lying in the hands of the
accused Shyam Sunder by the CBI team.
89. As regard the alleged presence of co-
complainant Rajesh Kumar/PW-2 at the time of trap is
concerned, the version of PW-9 is totally contrary. As per
PW-9 only complainant Naresh Kumar/PW-1 went inside the
room. As per the examination-in-chief of PW-9, only
complainant Naresh Kumar went into the cabin of accused
Mukesh Kumar. Perusal of the record shows that as per the
court observation, the witness/PW-9 had sought time to
recall as to who were standing outside and who had entered
into the cabin of accused Mukesh Kumar. But since, PW-9
did not come out with any different version, it appeared that
he sustained his version to the effect that only complainant
Naresh Kumar went inside the office with accused Shyam
Sunder while his brother Rajesh Kumar and he himself
(Gaurav Sharma) kept standing outside the office.
90. The above version of shadow witness is
inconsistent with the version of PW1 & PW2, who
consistently deposed that they both were called inside the
office whereas, the shadow witness Gaurav Sharma was
asked to wait outside. As per both the complainants, Shyam
Sunder raised demand for bribe, pursuant to which, he was
handed over Rs. 50,000/- by the complainant Naresh Kumar
and said currency notes were kept in the right hand of the
accused Shyam Sunder and while taking the currency notes,
the notes also touched his left hand. Immediately thereafter,
a missed call was given to the TLO, pursuant to which CBI
team reached the spot and after seeing them, accused
CBI Case No. 62/2019 (1/19) Page no. 107/134
Shyam Sunder threw the money on the floor and thereafter,
SI Umesh and TLO caught hold of the hands of the accused
Shyam Sunder. The tainted money was picked up by the
independent witness Rahul Jaiswal, at the instance of CBI
officials.
91. From the aforementioned version of the
witnesses, one thing is clear that the shadow witness
Gaurav Sharma was not present at the time of trap as he
was standing outside the room. As already discussed above,
there is serious discrepancy in the version of independent
witness Gaurav Sharma as regard to the presence of
PW-2/Rajesh Kumar at the time of trap. Both the
complainants are real brothers and the complaint Ex. PW1/B
with the CBI was also filed by them jointly. As such, in
absence of any corroboration from some independent
evidence, their sole version regarding demand and
acceptance of bribe amount is not sufficient to record any
finding against the accused. To draw corroboration in this
regard, CBI has placed reliance on the audio recording of the
memory card Q-3, wherein the conversation which occurred
between the complainant and the accused Shyam Sunder at
the time of trap, was recorded through DVR as the
complainant/PW-1 was carrying it in his pocket at the time of
trap.
92. I have carefully heard the recorded conversation
of the files contained in Q-3. Relevant portion of the
conversation is contained in 180925_1451 (from page 18 to
23 of transcript Ex. PW1/H (colly). Page no. 18 to 21 of
transcript Ex. PW1/H (colly) contain some unrelated portion.
CBI Case No. 62/2019 (1/19) Page no. 108/134
The relevant part starts from page 22 of transcript and in
the audio recording Q-3 it is between 21:57 minutes to
22:52 minutes and same is mentioned in the transcript from
page no. 22 to 23. For ready reference, the relevant portion
of the transcript is reproduced as under :-
नरेश चल श्याम अब सारा काम ओके और किसी से अब कोई कैस भुगतने की जरूरत
नहीं और पंगा तो मेरी जान को नहीं… पचास है ऐसा नहीं कर सकते चालीस साहब
को दे दे और दस एफ०एस०ओ० को दे दे नहीं मानेगा
श्याम सुन्दर तुम दे दो हां चालीस
नरेश दे द ू
श्याम सुन्दर दे दो, देखो मैं गारंटी नहीं लेता, मेरे लिए तो तुम बहुत बड़ी चीज हो अंक्ल (दरवाजा
खुलने की आवाज) वो तो हम देख लेगे कोई दिक्कत वाली बात नहीं। ऐसा कर लो
कोई इश्यू नहीं है मेरे को कोई दिक्कत नहीं है ठीक है ना, देने में तो… राजकुमार
बैठोगे क्या
U/K कोई नहीं….
श्याम सुन्दर चल पांच मिनट बाद आना मैं कोई बात कर लू बैठ जाओ अंक्ल जी……
नरेश बैठ बैठ
नरेश मान जायेगा ना कोई दिक्कत तो नहीं
श्याम सुन्दर दे तो रहे ही है
नरेश नहीं माने फिर माना लियो और क्या
श्याम सुन्दर तब की तब देख लेगे, ये लाओ पचास है
नरेश हां पचास है पचास में से चालीस रख लो दस….. unaudible मैंने फोन ना
इसलिए उल्टा रख लिया लगे तुम्हें ना लगें रिकाड़िग कर रहा हूं
CBI Case No. 62/2019 (1/19) Page no. 109/134
93. It is an undisputed position of law that subject to
the proving of time, place, accuracy of tape recorded
conversation as well as its relevancy to the case, any
previous statement of the person contained in such
conversation is admissible in law and can be used to
corroborate the evidence given by the witness in the Court.
The tape recorded conversation are admissible in evidence
subject to following conditions as laid down in the judgment
Ram Singh & Ors. v. Col. Ram Singh, 1985 SCC (SUPP)
611:-
“(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 strick 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 recorded 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.”
CBI Case No. 62/2019 (1/19) Page no. 110/134
94. The aforementioned judgment was referred by
the Hon’ble Delhi High Court in the judgment ‘Aashish
Kumar Dubey v. State through CBI 2014(142) DRJ
396′ to emphasize the point that accurate voice
identification is much more difficult than visual identification
because tape recordings may be altered by transposition,
excision and insertion of words or phrases and such
alterations may escape detection and even elude it on
examination by technical experts. In this regard, Hon’ble
Delhi High Court also referred to the decision of Hon’ble
Apex Court in ‘Nilesh Dinkar Paradkar v. State of
Maharashtra (2011) 4 SCC (3)’.
95. In the transcript at page no. 22 and 23 of Ex.
PW1/H (colly) as referred above, the utterance “तब की तब देख
लेगे, ये लाओ पचास है” has been ascribed to accused Shyam
Sunder. However, the conversation despite being repeatedly
heard is found to be ambiguous and unclear, as the words
mentioned as “ये लाओ” appears to have been uttered as “ये
लो” and it is also not clear as to whether the same are in the
voice of accused Shyam Sunder or complainant Naresh
Kumar. I have also carefully gone through the expert report
of voice identification available on record as Ex. PW18/A but,
none of the words of said phrase/sentence “तब की तब देख लेगे, ये
लाओ पचास है” were picked up by the expert for spectographic
or auditory examination so as to know his opinion, if said
words were in the voice of complainant Naresh Kumar or
accused Shyam Sunder.
CBI Case No. 62/2019 (1/19) Page no. 111/134
96. The aforementioned conversation which has
been transcribed in the transcript Ex. PW1/H (Colly) (at the
bottom of page no. 22) as “तब की तब देख लेगे, ये लाओ पचास है”, the
conversation is unclear and indiscernible on account of
background noise. Even the volume of the speech is also
very low thereby, making it very difficult to understand the
content of the speech or to ascertain the identity of the
speaker. The words “ये लाओ पचास है/ये लो पचास है” are very
unclear so as to reach to any conclusive finding as to its
content or to the identity of the speakers of said phrase “ये
लाओ/ये लो”. Furthermore, unlike in the case of accused
Mukesh Kumar, whose voice was got identified through
Special Commissioner Mr. Arun Kumar Mishra/PW-11 from
Food and Supply Department, Govt. of NCT of Delhi, CBI
failed to get the voice of accused Shyam Sunder identified
through any independent witness.
97. As as per the transcript on page no. 22 and 23 of
Ex. PW1/H (colly), even at the time of trap, it is the
complainant Naresh Kumar, who started the conversation
regarding money by saying “चल श्याम अब सारा काम ओके और किसी
से अब कोई कैस भुगतने की जरूरत नहीं और पंगा तो मेरी जान को नहीं… पचास है
ऐसा नहीं कर सकते चालीस साहब को दे दे और दस एफ०एस०ओ० को दे दे नहीं
मानेगा”. The said part of the conversation shows that the
complainant himself told the accused Shyam Sunder to have
brought Rs.50,000/- and asked him if it was possible to pay
Rs.40,000/- to ‘sahab ko’ (Asstt. Commissioner) and
Rs.10,000/- to FSO. Upon which accused Shyam Sunder said
that ” तुम दे दो हां चालीस……… दे दो, देखो मैं गारंटी नहीं लेता, मेरे लिए तो तुम
बहुत बड़ी चीज हो अंक्ल (दरवाजा खुलने की आवाज) वो तो हम देख लेगे कोई दिक्कत
CBI Case No. 62/2019 (1/19) Page no. 112/134
वाली बात नहीं। ऐसा कर लो कोई इश्यू नहीं है मेरे को कोई दिक्कत नहीं है ठीक है ना,
देने में तो…”. As such, there is again no demand originating
from the side of accused Shyam Sunder. Admittedly, said
money of Rs.50,000/-, was payable to Asstt. Commissioner
and FSO/FSI and not to accused Shyam Sunder. As per CBI’s
own case, accused Shyam Sunder (private person) was
merely acting as a middlemen for accused Mukesh Kumar,
who is alleged to be the kingpin of the conspiracy.
98. As per record accused Shyam Sunder has been
charged for two offences, one for conspiracy with the co-
accused Mukesh Kumar, punishable under Section 120B r/w
7 and 7A of PC Act and other for the substantive offence of
Section 7A PC Act.
99. However, from the material on record, there is
no iota of evidence to indicate that accused Shyam Sunder
had demanded or accepted illegal gratification or undue
advantage from the complainants as a motive or reward to
induce the public servant i.e. the accused Mukesh Kumar in
the instant case, by corrupt or illegal means or by exercise
of his personal influence, for the purposes mentioned in
Section 7A PC Act so as to attract the said provision. Indeed
it is nowhere the case of CBI that accused Shyam Sunder
demanded or accepted said money from complainants as a
motive or reward to induce the public servant Mukesh
Kumar. It is also pertinent to note that presumption as to
motive and reward in Section 20 PC Act is available only for
the offence of Section 7 & 11 and there is no such
presumption for the purpose of Section 7A PC Act and
therefore, the prosecution is required to prove the
aforementioned ingredient as a matter of fact by leading
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independent evidence.
100. As per CBI’s own case, accused Shyam Sunder
was merely acting as a conduit for accused Mukesh Kumar
(public servant), who was allegedly the mastermind of the
entire transaction. As per the projected case of the CBI,
accused Shyam Sunder at the most can be said to have
abetted the offence of Section 7 PC Act by aiding the
accused Mukesh Kumar in the alleged transaction. But, as
already noted above, CBI has miserably failed to bring on
record any clinching evidence to prove the element of
demand even on the part of accused Mukesh Kumar. In
such a scenario, accused Shyam Sunder cannot be held
liable even for the offence of abetment. Even otherwise, in
the instant case no charge of abetment punishable under
Section 12 PC Act has been framed against the accused
Shyam Sunder.
Discrepancies in Transcript
101. During course of argument, a strong challenge
has been raised by the Defence Counsels to the correctness
of transcript as it is alleged that the transcripts of Q-2 and Q-
3, which are part of Ex. PW1/H (colly) are not in accordance
with the actual conversation contained in Q-2 and Q-3. It
was alleged that transcripts have been prepared by CBI by
pick and choose method. It was argued that in the transcript
of file no. 180925_1034 of Q-2, the CBI has picked up the
words suiting to their case and the portion of the
conversation, which is detrimental to their case has been
deliberately concealed in the transcript. In this regard, the
attention of the court had been specifically drawn to the
conversation of file no. 180925_1034 of Q-2 starting from
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06:50 minutes wherein, the complainant is heard to be
saying”mere pass bade bhai ka phone aaya tha parveen ka
mujhe 50 de de, mujhe parveen par Yakeen nahi tha”
further “Maine Kaha ki main shyam Bhai se baat karunga,
parveen ne kaha main kar aaunga maine kaha tu kyo kar
aayega”. It is important to note that complainant/PW-1 in his
cross-examination, after hearing the above portion of
conversation in Q-2, not only admitted the aforementioned
content of said conversation but also admitted that it was in
his voice.
102. Similarly, upon careful hearing the conversation
in file no. 180925_1034 of Q-2 from duration 17:30 to 17:45
minutes, the same is found containing the conversation
“humein nahi kaha sahab ne-es bare mein bola bhi nahi”,
but no such content of the conversation is found mentioned
in the transcript Ex. PW1/H (colly). During cross-
examination, when the complainant/PW-1 was made to hear
said part of the conversation, he gave an evasive reply by
saying he was unable to hear said part of conversation.
However, in the view of this court the said part of
conversation is quiet discernible.
103. Similarly in File no. 180925_1451 in Q-3 the
conversation between 22:44 to 22:51 minutes, the
complainant can be heard saying the words “haan pachass
hai, pachas aap rakh lo, possible ho to pachas mein se
challis hume de do, ho sake to dus mein unko nipta do” to
accused Shyam Sunder but, in the transcript Ex. PW1/H
(colly), the CBI appears to have placed a
distorted/incomplete version of above speech. The said part
of the conversation is mentioned in the transcript in the top
CBI Case No. 62/2019 (1/19) Page no. 115/134
two lines of page 23 of D-8 (Ex. PW1/H) and same reads as
“नरेश :हां पचास है पचास में से चालीस रख लो दस…… unaudible मैंने फोन ना
इसलिए उल्टा रख लिया लगे तुम्हें ना लगें रिकाड़िग कर रहा हूं”
104. In the light of aforementioned inconsistencies
between the actual content of the questioned conversations
of Q-2 and Q-3 and their transcripts placed on record, it is
evidently clear that CBI has tried to mislead the court by
placing distorted version of the story. Hence, no reliance can
be placed on such evidence. In the light of said serious
discrepancies, both the ocular testimonies of the
prosecution witnesses as well as the transcript of the
recorded conversation of Q-2 and Q-3 are totally
untrustworthy, incredible and unreliable. In view thereof, CBI
has miserably failed to prove the essential ingredient of
demand both at the time of verification as well at the time of
trap.
105. After careful analysis of the entire material, I am
of the considered view that the material on record is neither
sufficient to prove the essential ingredient of demand nor it
is even otherwise credit worthy or reliable. Distorted version
of the speech/conversation has been placed before the
court. The transcript Ex. PW1/H (colly) is not in accordance
with the actual content of the speech contained in the
recorded conversation of Q-2 and Q-3.
Acceptance and Recovery of Tainted Money
106. Ld. Prosecutor has referred to the judgment in
Neeraj Kumar (supra), to argue that even in absence of
any demand, if any gratification or undue advantage is
accepted by the public servant or any private person
CBI Case No. 62/2019 (1/19) Page no. 116/134
pursuant to an offer to pay by the bribe-giver, it will still be a
case of acceptance within the meaning of Section 7 or 7A of
the Act. It is argued that in such a case, there is no need for
prior demand by the public servant or a private person, as
the case may be.
107. Ld. PP argued that even if it is believed that the
offer originated from the complainant Naresh Kumar or his
brother Rajesh Kumar even in that scenario, since the
money was accepted by accused Shyam Sunder on behalf of
accused Mukesh Kumar with the knowledge that the same
has been given as a bribe to hush up the matter pertaining
to inspection conducted on 14.09.2018, it will still attract the
provision of Section 7 & 7A PC Act against both the accused.
108. As per CBI’s case, upon the demand raised by
the accused Shyam Sunder, he was handed over Rs.
50,000/- by the complainant Naresh Kumar in the presence
of his brother Rajesh Kumar, who thereafter, gave a pre-
decided signal to the TLO by giving him a missed call, upon
which, CBI team with the independent witnesses rushed to
the spot. In this regard, version of PW-1 and PW-2 is more
or less on the same lines. For corroborating their version,
CBI has relied upon the testimony of the TLO and the
verifying officer, who reached the spot after receiving the
pre-decided signal from PW-1 Rajesh Kumar.
109. As per the version of TLO C.M.S.Negi/PW-19, at
3:15 p.m, he received a missed call from co-complainant
Rajesh Kumar i.e. PW-2, upon which he alerted the other
team members and rushed to the office of accused Mukesh
Kumar, where Rajesh Kumar and Gaurav Sharma were found
CBI Case No. 62/2019 (1/19) Page no. 117/134
outside the office and when PW-19 with other team
members entered into the office room of accused Mukesh
Kumar, they found complainant and accused Shyam Sunder
inside said room. Upon indication from the complainant
Naresh Kumar, Inspector Sudip Punia and SI Umesh Kumar
caught hold hands of accused Shyam Sunder, who was
holding the tainted bribe money in his hands. He further
deposed that accused Shyam Sunder dropped the tainted
money on floor. From his version, it appears that the money
was dropped on the floor by the accused Shyam Sunder
after the CBI officers caught hold of his hands.
110. On the other hand, as per the version of PW-12
SI Umesh Kaushik, a missed call was received from
complainant Naresh Kumar i.e. PW-1 at the mobile phone of
TLO at 3:12 p.m, upon which team members were alerted
and they rushed to the office of accused, where a person in
white shirt and gray pant was present, who was later
identified as accused Shyam Sunder. The DVR was taken
from the complainant, it was switched off and accused
Shyam Sunder was challenged by the TLO for taking the
bribe amount. He further deposed that accused Shyam
Sunder threw away the tainted money on the floor and
thereafter, he PW-12 caught hold of one hand of the accused
and the other hand of the accused was caught hold by
Inspector Sudip Punia. Later, accused Shyam Sunder
revealed that he had nothing to do with the bribe and that
he had accepted it on the behest of accused Mukesh Kumar.
Thereafter, upon the direction of TLO, the tainted bribe
amount was recovered/picked up from the floor by the
independent witness Rahul Jaiswal and the currency notes of
CBI Case No. 62/2019 (1/19) Page no. 118/134
the tainted amount were found to be tallying with the GC
notes mentioned in the trap memo.
111. Admittedly, the tainted amount was not
recovered from the conscious possession of the accused
Shyam Sunder. As per CBI’s own case, the money was
picked up from the floor as it was dropped by the accused
Shyam Sunder after he was challenged by the CBI team for
having accepted the bribe amount. Even as per the
complainant/PW-1, after the CBI team came to the room, the
accused Shyam Sunder threw the money on the floor but his
hands were caught hold of by the CBI team and the money
was picked up by independent witness Rahul Jaiswal at the
instance of CBI officials. Thereafter, hand washes were
prepared by the CBI team and the solutions in the bottle
turned pink. Thereafter, bottles were sealed.
112. Similar is the version of complainant’s brother
Rajesh, who also deposed that after the CBI team entered
the room, accused Shyam Sunder threw the currency notes
on the floor out of nervousness and same were picked up by
independent witness Rahul Jaiswal tallied it the distinctive
number mentioned in the memo.
113. The defence counsel for the accused Shyam
Sunder has vehemently argued that since the money was
recovered from the floor and not from the possession of the
accused Shyam Sunder, therefore, CBI has miserably failed
to prove the recovery of the tainted amount from the
accused Shyam Sunder. However, as far as the recovery of
tainted amount is concerned, except the minor discrepancy
regarding the time when it was thrown on the floor by the
CBI Case No. 62/2019 (1/19) Page no. 119/134
accused Shyam Sunder i.e. whether it was done before his
hands were caught hold by the CBI team or it was done
thereafter, the evidence of all the prosecution witnesses is in
consonance with each other.
114. But, as already noted above, mere acceptance
without any proof of demand is not sufficient to attract any
of the alleged offences of Section 7 or 7A of PC Act. Even in
post trap conversation in Q-3 between accused Shyam
Sunder and Mukesh Kumar, which took place after accused
Shyam Sunder was directed to make a call on the phone
number of accused Mukesh Kumar, there is no mention of
the source of Rs.50,000/- i.e from where said money had
been received by accused Shyam Sunder. In absence of
source of said money being disclosed to accused Mukesh
Kumar, the conduct of said accused Mukesh Kumar in
responding to said call by saying “theek hai”, cannot lead to
an inference that said money was accepted by accused
Shyam Sunder from the complainant Naresh Kumar on the
behest of accused Mukesh Kumar. The version of
prosecution witnesses PW-1, PW-2 and PW-12 regarding
accused Shyam Sunder having conveyed to accused Mukesh
Kumar that he had received Rs. 50,000/- from Naresh Kumar
is contrary to the contents of the recorded conversation in
file no. 180925_1553 of Q-3 as well as its transcript available
on page no. 24 of Ex. PW1/H (colly), as it nowhere shows
that anything was told by accused Shyam Sunder to accused
Mukesh Kumar to disclose him as to from where he had
received said money.
115. When the prosecution has miserably failed to
establish any of the essential ingredients of demand or
CBI Case No. 62/2019 (1/19) Page no. 120/134
acceptance on the part of accused Mukesh Kumar, who is
alleged to be the kingpin of the conspiracy, no offence of
conspiracy is made out even against the accused Shyam
Sunder, who only acted as a conduit on his (Mukesh
Kumar’s) behalf. As already observed in preceding paras, no
presumption of Section 20 PC Act is available for the
purpose of proving the ingredient of motive or reward for
Section 7A PC Act and same is required to be proved as an
independent fact by leading cogent evidence. Although
there is sufficient material on record to show that accused
Shyam Sunder was conscious of the fact that the money was
given by complainant Naresh Kumar to avoid cancellation
of the licence of his Fair Price Shop but, it was never
accepted by him (accused Shyam Sunder) with the motive
or intention to induce accused Mukesh Kumar (public
servant) to save complainants from their prosecution or
cancellation of licence of their shop. Hence, in my
considered view, the ingredients of Section 7A of PC Act are
not established on record to record any finding even against
accused Shyam Sunder.
116. Although it is not necessary that the person who
received the gratification should have succeeded in inducing
the public servant. It is also not necessary, that the
recipient of the gratification should, in fact, have attempted
to induce the public servant. But it is necessary that the
accused should have had the animus or intent, at the time
when he receives gratification that it is received as a motive
or reward for inducing a public servant by corrupt or illegal
means. Hence, mere acceptance of money by the accused
Shyam Sunder without any intention on his part to receive it
CBI Case No. 62/2019 (1/19) Page no. 121/134
as a motive or reward to induce any public servant, is not
sufficient to prove the charge of Section 7A PC Act.
Validity of Sanction under Section 19 of PC Act
117. It was vehemently argued on behalf of accused
Mukesh Kumar (public servant) that no valid sanction was
obtained by CBI for prosecution of said accused. It was
argued that the sanction order dated Ex. PW14/A is
apparently defective as the same was accorded by the
competent authority without application of mind and same is
also evident from the fact that a draft sanction Ex.PW14/D2
was sent to PW-14 alongwith the request letter of CBI Ex.
PW14/D1. Ld. Counsel submitted that at the time of
examination of PW-14, the official noting file of the sanction
accorded in this case for the prosecution of accused Mukesh
Kumar was summoned by the court and PW-14 was shown
the aforementioned letter Ex. PW14/D1 and the
accompanying draft sanction order Ex. PW14/D2 and he
admitted that said draft sanction order was received by him
alongwith the letter Es. PW14/D1.
118. It is further argued that another letter of same
date of 04.12.2018 sent by SP, CBI to Director (Vigilance),
Govt. of NCT was also admitted to have been received by
PW-14 and vide said letter, CBI had requested Director
(Vigilance) to place before the competent authority the CBI
report and the supporting material for its perusal and
application of mind before giving sanction for prosecution in
respect of the named official. It was argued that admittedly,
none of the documents mentioned at serial no. (i) to (xvii) on
page 1 of the sanction order were available in the sanction
file, which clearly shows that no such documents were ever
CBI Case No. 62/2019 (1/19) Page no. 122/134
placed before competent authority for application of mind.
119. I have carefully perused the testimony of PW-14
and also given thoughtful consideration to the rival
contentions on the point of sanction. During his cross-
examination, PW-14 admitted that at the time when the
sanction was granted for prosecution of accused Mukesh
Kumar, the copy of questioned recordings were not received
nor there is any mention of said copies even in the sanction
order. He admitted that as per document (iv) mentioned in
the sanction order, only transcripts of the questioned
telephonic conversations were received.
120. It is trite law that grant of sanction is not an idle
formality or an acrimonious exercise but a solemn and
sacrosanct act which affords protection to government
servants against frivolous prosecutions and must therefore
be strictly complied with before any prosecution can be
launched against the public servant concerned.
121. In ‘CBI v. Ashok Kumar Aggarwal (2014) 14
SCC 295′ the Hon’ble Apex Court observed that the order of
sanction must exfacie disclose that the sanctioning authority
had considered the evidence and other material placed
before it. While referring to the previous case law on the
point of sanction under section 19 PC Act, Hon’ble Apex
summarised the legal position and the relevant para of the
judgment is reproduced as under :-
8. In view of the above, the legal propositions
can be summarised as under:
(a) The prosecution must send the entire
relevant record to the sanctioning authorityCBI Case No. 62/2019 (1/19) Page no. 123/134
including the FIR, disclosure statements,
statements of witnesses, recovery memos,
draft charge sheet and all other relevant
material. The record so sent should also contain
the material/document, if any, which may tilt
the balance in favour of the accused and on the
basis of which, the competent authority may
refuse sanction.
(b) The authority itself has to do complete and
conscious scrutiny of the whole record so
produced by the prosecution independently
applying its mind and taking into consideration
all the relevant facts before grant of sanction
while discharging its duty to give or withhold
the sanction.
(c) The power to grant sanction is to be
exercised strictly keeping in mind the public
interest and the protection available to the
accused against whom the sanction is sought.
(d) The order of sanction should make it
evident that the authority had been aware of all
relevant facts/materials and had applied its
mind to all the relevant material.
(e) In every individual case, the prosecution has
to establish and satisfy the court by leading
evidence that the entire relevant facts had
been placed before the sanctioning authority
and the authority had applied its mind on the
same and that the sanction had been granted
in accordance with law.
122. The aforementioned judgment in Ashok Kumar
Aggarwal (Supra) was referred by Hon’ble Delhi High Court
in a recent judgment of ‘Joginder Singh Malik v. CBI in
Crl. A No. 1302/2010′ decided on 08.12.2022, where it
was observed that “….the order of sanction should speak for
itself and make it evident that the sanctioning authority had
gone through the entire set of record, relevant for the
purposes of determining as to whether a prima facie case is
made out against an accused, and then accorded sanction
under Section 19 of P.C. Act, 1988. The sanctioning authority
CBI Case No. 62/2019 (1/19) Page no. 124/134
is required to peruse the entire record produced by the
prosecution without any bias and then either provide the
sanction or reject the request for sanction.”
123. Even in the aforementioned case Joginder
Singh Malik (Supra), the Hon’ble High Court rejected the
trial court view regarding due application of mind by the
competent authority on the ground that the sanctioning
authority did not go through the recordings prepared by CBI
qua the demand of bribe. The relevant para of the judgment
is referred as under : –
“26. However, it is noteworthy that PW-1, in his
cross-examination, has admitted that he did not
go through the recordings prepared by the CBI
qua the demand of bribe by appellant. This
shows that either the sanctioning authority did
not deem it appropriate to hear the recordings
which were allegedly going to prove or disprove
the demand of bribe by the appellant, or that
the said recordings were not even placed before
the sanctioning authority. These circumstances
highlight that there has been a lack on the part
of sanctioning authority (PW-1) in application of
mind while according sanction against the
appellant. This Court, thus, cannot accept the
view of the learned Trial Court that a bare
perusal of the sanction order, along with the
statement of PW-1 that he had applied his mind,
reflects that the sanctioning authority has
passed this order after due application of his
mind.”
124. Even in the instant case, there is no mention
about receipt of copies of questioned recordings in the
sanction order. As per sanction order only transcripts of
telephonic conversation were sent to the competent
authority. Even PW-18 admitted in his cross-examination
that only the transcript of questioned conversation were
sent with the letter of request and copy of recorded
CBI Case No. 62/2019 (1/19) Page no. 125/134
conversation was never sent for consideration of sanctioning
authority. Admittedly, by the time, the sanction was
accorded for the prosecution of the accused Mukesh Kumar,
the CFSL report regarding voice identification was yet not
ready and the original recordings contained in Q-1, Q-2 and
Q-3 were still lying in the CFSL. However, nothing stopped
the IO to prepare the copies of said recordings from his own
investigation copies from which he had prepared the
transcripts on 08.10.2019. Even the competent authority
did not make any effort to obtain the copies of recorded
conversation, which were allegedly carrying the
incriminatory material to verify the contents of the
transcripts placed before it for its consideration.
125. For said flaw on the part of the IO in not sending
the copies of the recorded conversation Q-1, Q-2 and Q-3 to
the sanctioning authority, the sanction accorded becomes
defective as there can be no application of mind in absence
of such material evidence, which left to be placed before the
sanctioning authority. After analyzing aforementioned facts
in the light of the judgment in Joginder Singh Malik
(supra), I am of the considered view that the sanction
under Section 19 of PC Act accorded for prosecution of
accused Mukesh Kumar was defective as the competent
authority was provided with only the transcript of the
recorded conversation and the recordings Q1,Q2 and Q3
were never made available to the sanctioning authority for
verifying the content of transcript qua the demand of bribe
allegedly raised by said public servant Mukesh Kumar. This
clearly shows lack of application of mind on the part of
sanctioning authority while according sanction against said
CBI Case No. 62/2019 (1/19) Page no. 126/134
accused. In view thereof, accused Mukesh Kumar deserves
to be acquitted also for lack of valid sanction under section
19 PC Act.
Admissibility of Voice Recordings
126. Ld. Defence Counsel Sh. Sanjay Gupta for
accused Mukesh Kumar, has raised a strong objection on
the admissibility of the CFSL report Ex.PW18/A. First
objection is for lack of notification of CFSL under Section 79A
IT Act and second is regarding competency of the expert
witness/PW-18 to give any opinion on the voice
identification.
127. The above contention regarding lack of
notification of CFSL by the Central Government u/s 79A of
the Information Technology Act, has been refuted by Ld. PP
by submitting that the word ‘may’ used under Section 79A
of IT Act, makes it clear that the provision is not mandatory
as it provides that the Central Government may authorize or
notify any department, body or agency to examine the
electronic evidence. The provision would not mean that
unless an agency/laboratory is notified by the Central
Government, it would not be competent to examine the
electronic evidence. She further submitted that CFSL is duly
certified from National Accreditation Board of Testing and
Calibration Laboratories and therefore, it is competent to
examine any electronic record and give its report.
128. I have considered the above submissions raised
from both the sides and also perused the relevant provision
of Section 45A of Indian Evidence Act and Section 79A of the
Information Technology Act, which read as under:-
CBI Case No. 62/2019 (1/19) Page no. 127/134
Section 45A Evidence Act :- When in a
proceeding, the court has to form an opinion on
any matter relating to any information
transmitted or stored in any computer recourse
or any other electronic or digital form, the
opinion of the Examiner of Electronic Evidence
referred to in Section 79A of the Information
Technology Act, 2000 (21 of 2000) is a relevant
fact.
Section 79A I.T. Act :- Central Government to
Notify Examiner of Electronic Evidence The
Central Government may, for the purposes of
providing expert opinion on Electronic form
evidence before any court or other authority
specify, by notification in the Official Gazette,
any Department, body or agency of the Central
Government or a State Government as an
Examiner of Electronic Evidence.”
129. Perusal of the aforementioned provisions
however, shows that they nowhere provide that in absence of
such notification, opinion based on scientific examination
given by a person well versed or skilled in such science,
would not be admissible in evidence. Unless such bar is
created in law, it cannot be read as an extension of section
79A of I.T. Act that the report given by any other
authority/lab would be inadmissible in evidence. In this
regard, I draw support from the judgment of Hon’ble Madras
High Court in the case of K. Ramajayam Vs Inspector of
Police, Chennai 2016 Cr.LJ 1542, on the issue of Section
79A of I.T. Act, wherein it was observed that “It is axiomatic
that the opinion of an expert, which is relevant under Section
45 of the Indian Evidence Act, 1872, when accepted by the
Court graduates into the opinion of the Court. The Central
Government has not yet issued notification under Section
79A of the Information Technology Act, 2000 on account of
which Section 45A of the Indian Evidence Act, 1872 remains
mute. Therefore, the methods evolved by Kala (PW 23) and
CBI Case No. 62/2019 (1/19) Page no. 128/134
Pushparani (PW24), Scientific Officers of the Tamil Nadu
Forensic Sciences Department to analyze and give their
opinions on the electronic data, are correct and cannot be
faulted.”
130. As far as the 2nd objection relating to
competency of expert witness PW-18 is concerned, the
attention of the court was drawn to his testimony wherein,
he deposed that he was B.Sc (PCM), B.Ed (physics and
Maths) and had also done Certificate course of Forensic
Science from Delhi University. But in his cross-examination,
PW-18 admitted that certificate course of Forensic Science
was done by him from Delhi University but voice
identification examination was not the part of said certificate
course. He further admitted that he did not possess any
specialized educational qualification in the field of voice
examination including acoustic, linguistic and phonetics.
Further that linguistic was not a subject of science.
131. It is settled law that voice of the person alleged
to be speaking can be identified either by the maker of the
record or by the person conversant and familiar with the
voice of alleged speaker or through testimony of voice
identification expert, who is qualified and competent to
make a comparison of the disputed voice and the
admitted/specimen voice on a scientific basis. For proving
the voice of accused Shyam Sunder, the prosecution has
taken recourse of the third mode by relying on the opinion of
the expert PW-18, who proved his report as Ex. PW18/A. For
proving the voice of accused Mukesh Kumar, the prosecution
has relied upon both, second and third mode as beside
CBI Case No. 62/2019 (1/19) Page no. 129/134
examining the expert, the prosecution has also got his voice
identified through Mr. Arun Kumar Mishra, who has been
examined as PW-11. However, no independent witness was
examined by the prosecution for the voice identification of
the accused Shyam Sunder.
132. Undoubtedly, on account of imperfect nature of
science of voice identification and vulnerability of the voice
recording to tampering and distortion, the courts have been
slow in placing reliance on such evidence based on expert
opinion especially, when there is no independent
substantive evidence led in this regard. Normally, the expert
opinion regarding handwriting or voice identification are not
regarded as conclusive and it is considered dangerous to
base a conviction solely on the basis of expert report. As a
rule of prudence, courts always look for corroboration before
acting on such evidence. Because of the imperfect and frail
nature of such evidence, the courts are cautioned to
exercise extra care and caution before acting on any such
opinion. Before relying upon any expert report, the court
has to first satisfy itself about the competency of the expert.
133. However, as per deposition of PW-18, he was
B.Sc, B.Ed with certificate course in Forensic Science, which
he had done from Anthropology Department of Delhi
University. As per his own admission voice identification was
not part of said certificate course nor did he possess any
specialized qualification in the field of voice examination
including acoustic, phonetic and linguistic. There is no
material on record to show that PW-18 had any expertise in
the field of voice identification as neither he has any
CBI Case No. 62/2019 (1/19) Page no. 130/134
specialized educational qualification for said purpose nor he
had sufficient experience in that field. Though as per his
testimony, he had the experience of 21 years in
voice/speech identification but, without studying the subject
and having any necessary educational qualification in said
field, a person cannot become an expert merely by
publishing some research paper.
134. Furthermore, in his cross-examination PW-18
admitted that his report Ex. PW18/A, was merely a probable
report. But in a criminal trial, no finding of guilt can be
recorded on the basis of probabilities. Reliance in this
regard has been placed on the judgment of Hon’ble Delhi
High Court in ‘Ajay Gupta v. State (CBI) Crl. Appeal no.
469/2003 decided on 28.10.2022′.
135. The third argument raised by the Ld. Defence
Counsel is that the transcripts of the questioned
conversation Q-1, Q-2 and Q-3 were already provided to the
expert, which PW-18 had admitted in his cross-examination.
It was further argued that the IO however, did not mention
about the sending of copies of the transcripts in the
forwarding letters Ex. PW18/DA and Ex. PW18/DB nor there
is any reference about receipt of any such copies in the
acknowledgment of receipt given on said forwarding letters.
The defence counsels argued that availability of the
transcript of the conversation with the names of the speaker
to whom said conversation has been ascribed, tends to
create a prejudice in the mind of the expert. To buttress his
arguments. Ld. Counsel has placed reliance on the judgment
in Nilesh Dinkar(supra), wherein, Hon’ble Apex Court
CBI Case No. 62/2019 (1/19) Page no. 131/134
referred to certain foreign case law/jurisprudence for
emphasizing the need for minimum safeguards required to
be observed before placing reliance on voice identification
evidence. The relevant paras of the judgment reads as
under :
37. The Court of Appeal in England in R v.
Chenia and R. v Flynn has reiterated the
minimum safeguards which are required to be
observed before a Court can place any reliance
on the voice identification evidence, as follows:-
“(a) the voice recognition exercise should be
carried out by someone other than the officer
investigating the offence;
(b) proper records should be kept of the amount
of time spent in contact with the suspect by any
officer giving voice recognition evidence, of the
date and time spent by any such officer in
compiling any transcript of a covert recording,
and of any annotations on a transcript made by
a listening officer as to his views as to the
identify of a speaker; and
(c) any officer attempting a voice recognition
exercise should not be provided with a
transcript bearing the annotations of any other
officer.”
38. In America, similar safeguards have been
evolved through a series of judgments of
different Courts. The principles evolved have
been summed up in American Jurisprudence 2d
(Vol. 29) in regard to the admissibility of tape
recorded statements, which are stated as
under:
“The cases are in general agreement as to what
constitutes a proper foundation for the
admission of a sound recording, and indicate a
reasonably strict adherence to the rules
prescribed for testing the admissibility of
recordings, which have been outlined as follows:
(1) a showing that the recording device was
capable of taking testimony;
(2) a showing that the operator of the device
CBI Case No. 62/2019 (1/19) Page no. 132/134
was competent;
(3) establishment of the authenticity and
correctness of the recording;
(4) a showing that changes, additions, or
deletions have not been made;
(5) a showing of the manner of the preservation
of the recording;
(6) identification of the speakers; and
(7) a showing that the testimony elicited was
voluntarily made without any kind of
inducement.
… However, the recording may be rejected if it
is so inaudible and indistinct that the jury must
speculate as to what was said.”
136. In the instant case, both the expert witness for
voice identification i.e. PW-18 as well as the witness who
was allegedly familiar with the voice of the accused Mukesh
Kumar i.e. PW-11, were having prior knowledge about the
identification of the person to whom the voice was
attributed by the CBI. As already noted above, PW-18 in his
cross-examination admitted that he was handed over the
transcripts of all the questioned conversation and the names
of the person to whom the voices were ascribed were
mentioned in the transcription.
137. In view of said circumstances, the expert opinion
on the identification of voice is also not free from doubts and
suffers from so many infirmities. The voice identification
done by the witness PW-11 on 08.10.2018, is also not
reliable as no attempt was made by the IO to mix the
questioned voice of the accused Mukesh Kumar with some
other unidentified voices before getting the same identified
through PW-11. Moreover, there is a discrepancy in the
CBI Case No. 62/2019 (1/19) Page no. 133/134
version of complainant Naresh Kumar/PW-1 regarding the
presence of his brother Rajesh Kumar/PW-2 at the time of
preparation of the voice identification memo dated
08.10.2018 Ex. PW1/G. The said version of PW-1 is contrary
to the testimony of PW-2, who denied to have visited CBI
office for the purpose of voice identification on 08.10.2018
and even the voice identification memo dated 08.10.2018
Ex. PW1/G is not in conformity with the version of PW-1 as it
also does not bear the signatures of PW-2. In view thereof,
no conclusive evidence has been adduced by the
prosecution for identification of the alleged voices of the
accused persons in the recorded conversation Q-1, Q-2 and
Q-3 prepared by the CBI qua the demand of bribe.
Conclusion
138. In the light of the foregoing discussion, I am of
the considered view that prosecution case is shrouded with
serious infirmities, discrepancies and contradictions. CBI has
miserably failed to bring any cogent and clinching evidence
so as to record the finding of guilt against any of the
accused persons for any of the alleged offences. The
essential ingredients of ‘demand’, ‘acceptance’ and ‘motive
or reward’ for the purpose of Section 7 & 7A PC Act have
remained unproved and as a consequence, prosecution
miserably failed to prove its case beyond reasonable doubt
against both the accused. As a consequence, both the
accused Mukesh Kumar (public servant) and Shyam Sunder
Digitally signed
(private person) are acquitted in this case. by SUNENA
SUNENA SHARMA
Date:
SHARMA 2025.01.30
Announced in the open court 16:41:43
+0530
on 30th January, 2025 (Sunena Sharma)
Special Judge (PC Act), CBI-20
Rouse Avenue Court Complex
New Delhi.
CBI Case No. 62/2019 (1/19) Page no. 134/134
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