Vishal Chand Jain @ V.C.Jain vs Cbi
2010 Latest Caselaw 5881 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment reserved on: August 09, 2010
                         Judgment delivered on: December 24, 2010

+      CRL.A. No.579/2005

       VISHAL CHAND JAIN @ V.C. JAIN                 ....APPELLANT

              Through:   Mr. Neeraj Jain, Advocate

                         Versus

       C.B.I.                                      .....RESPONDENT
            Through:     Ms. Sonia Mathur, Advocate


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment dated

08.07.2005 in Corruption Case No.26/03 FIR No.RC-DAI-2002-A-0054

and the consequent order on sentence dated 11.07.2005 whereby the

appellant Vishal Chand Jain was convicted for the offences punishable

under Section 7 and Section 13(2) read with Section 13(1)(d) of the

P.C. Act and awarded RI for the period of two years and to pay fine of

`10,000/-, in default to undergo SI for the period of three months.

Similar sentence was also awarded to the appellant for the offence

punishable under Section 13(2) read with Section 13(1)(d) of the P.C.

Act with the direction that substantive sentences awarded for

respective offences shall run concurrently.

2. Briefly stated, case of the prosecution is that on 20.09.2000

complainant Gurcharan Singh (PW2) visited the CBI office, New Delhi

and submitted a written complaint against the appellant Vishal Chand

Jain, Branch Manager, State Bank of India, Laxmi Nagar, Delhi. As per

the complaint Ex.PW2/D, the complainant's wife Pawandeep Kaur was

having a Current Account No.01600085031 in State Bank of India,

Laxmi Nagar Branch in the name of her firm M/s. Wiser International,

G-77/1, Jagat Puri, Delhi. She applied for a loan for purchase of lathe

machines on 03.08.2002. The appellant, Branch Manager of SBI, Laxmi

Nagar made it clear that he would sanction the loan but they would

have to pay `4,000/- to him. Since the loan sought was only `58,000/-,

they were surprised by the quantum of demand. Complainant further

alleged that a day prior to the complaint, the loan was sanctioned and

pay orders were issued in favour of the supplier company. When the

complainant and his wife went to collect the pay orders, they were told

by the appellant to visit him at his residence Flat No.210, Parshav

Apartments, Madhu Vihar after 9:00 pm along with `4,000/-.

3. On the basis of the complaint Ex.PW2/D, formal FIR was

registered and Inspector P. Balachandran was directed to verify the

complaint by laying a trap. Inspector P. Balachandran arranged for two

independent witnesses, namely, Suresh Kumar, Vigilance Assistant

from Indian Oil Corporation and Shri P.P. Singh, Junior Engineer from

DDA. In their presence, complainant was asked to talk with the

appellant V.C. Jain from his Mobile No.9810261097. Gurcharan Singh

(complainant) called the appellant at his residence telephone

No.2016873 and talked with him, which conversation was recorded in a

blank micro cassette and said conversation, prima facie, confirmed the

demand for bribe. Thereafter, the complainant produced eight

currency notes of `500/- denomination each which were treated with

phenolphthalein powder and live demonstration was given in the

presence of the complainant and the witnesses about the reaction of

phenolphthalein powder with colourless solution of sodium carbonate.

For that purpose, witness Shri P.P. Singh was asked to touch

phenolphthalein treated currency notes and dip his fingers in freshly

prepared colourless solution of sodium carbonate. On P.P. Singh's

dipping his fingers in the said solution, the solution turned pink.

Thereafter, pink colour solution was destroyed and the left over

phenolphthalein powder was sent back to the Malkhana. Sodium

carbonate powder and clean tumbler were kept in the investigation

bag.

4. It is also the case of the prosecution that personal search of the

complainant as well as shadow witness Suresh Kumar was taken and

they were not allowed to keep anything incriminating with them.

Phenolphthalein treated GC notes were then kept in right side pocket

of the pant of the complainant. He was directed to hand over those GC

notes amounting to `4,000/- to the appellant only on demand. The

micro cassette recorder loaded with the micro cassette in which the

telephonic conversation was recorded was also handed over to the

complainant and he was directed to switch on the same while initiating

conversation with the appellant.

5. Complainant Gurcharan Singh stated that it would not be possible

for him to take the shadow witnesses along with him. Therefore, both

the independent witnesses were directed to remain as close as

possible to the complainant so as to hear the conversation which may

take place between the complainant and the appellant and also to see

the transaction of passing of bribe. The complainant was directed to

wipe his face with his handkerchief on acceptance of bribe by the

appellant. Thereafter, all the members of the trap party washed their

hands with soap and water and proceeded for the house of the

appellant.

6. On reaching the residence of the appellant i.e. Parshav Vihar

Apartment, Flat No.210, Patparganj, the complainant was directed to

go and meet the appellant while the remaining members of the trap

party took suitable positions near the house. After some time, the

complainant gave the prearranged signal. On this, trap laying officer

along with the independent witnesses and other members of the team

entered the house of the appellant. Appellant was sitting on a sofa.

Complainant informed that the appellant had demanded and accepted

`4,000/- from him and kept the money in the right side pocket of his

pant. PW5 Suresh Kumar was directed to search the appellant and he

recovered eight GC notes of `500/- denomination each from the right

side pocket of the pant of the appellant. On comparison, numbers of

those GC notes tallied with the numbers already noted down in the

handing over memo prepared during pre-raid proceedings. Colourless

solution of sodium carbonate was prepared in a clean tumbler and the

appellant was asked to put his right hand fingers in the said solution.

On his doing so, the solution turned pink. Right hand wash of the

appellant was transferred into a clean bottle and sealed with the seal

of the Investigating Officer. Similarly, the procedure was repeated for

taking left hand wash which also turned pink and left hand wash of the

appellant was transferred into a clean bottle and sealed with the seal

of the Investigating Officer. The appellant was made to take off his

pant and wash of the right side pocket of the appellant was taken in

freshly prepared colourless solution of sodium carbonate that also

turned pink and the wash of right side pocket of the pant was also

transferred in a clean bottle and sealed with seal of the Investigating

Officer. Those washes were taken into possession.

7. Micro cassette recorder was taken from the complainant and

played. From the recorded conversation between the appellant and

the complainant, it was apparent that the appellant had demanded

illegal gratification at the rate of 5% of the enhancement of cheque

purchase facility sanctioned in favour of the firm of wife of the

complainant and agreed to accept `4,000/-. Copy of the micro cassette

was prepared and micro cassette was converted into a pulanda. The

post trap proceedings were recorded in the recovery memo Ex.PW2/F.

8. It is further the case of the prosecution that during the

investigation, specimen voice of the appellant was recorded in a

cassette and the aforesaid cassette, along with the micro cassette

containing the conversation between the appellant and the

complainant, was sent to CFSL for comparison and, as per the report

of CFSL, the voice attributed to the appellant in the micro cassette was

opined to be the voice of the person who had given the specimen

voice. Hand washes were also sent to CFSL and their chemical analysis

report confirmed presence of phenolphthalein in the said hand washes

and pant pocket washes.

9. On completion of the investigation, S.P.'s report was sent to the

competent authority for obtaining sanction for prosecution and after

the receipt of the sanction, charge sheet was filed against the

appellant in the court.

10. Learned Special Judge, after completing the formalities of Section

207 Cr.P.C. and hearing the appellant, charged him for the offences

punishable under Section 7 and 13(2) read with Section 13(1)(d) of the

P.C. Act. Appellant pleaded not guilty to the charge and claimed to be

tried.

11. In order to bring home the guilt of the appellant, prosecution has

examined nine witnesses in all. PW2 Gurcharan Singh, however, is the

sole witness to the actual transaction of demand and acceptance of

bribe. PW5 Suresh Kumar and PW7 P.P. Singh are panch witnesses,

who are witnesses to the recovery of the tainted currency notes from

the possession of the appellant and subsequent post raid proceedings

i.e. taking of hand wash, pant pocket wash, hearing of recorded

conversation, preparation of a copy of the recorded conversation and

seizure of the case property. PW8 P. Balachandran is the trap laying

officer.

12. As per the case of prosecution, only witness to the actual

transaction of demand and acceptance of bribe is the complainant.

Therefore, before adverting to the submissions made on behalf of the

rival parties, it would be useful to have a look on his testimony.

13. PW2 complainant Gurcharan Singh is a hostile witness. Though

he has proved his complaint Ex.PW2/D, he has not supported the case

of the prosecution either on the initial demand prior to the filing of the

complaint or the subsequent demand and acceptance of bribe by the

appellant at the time of trap. He was cross-examined at length by

learned Sr. PP appearing for CBI, but nothing incriminating against the

appellant could be elicited in his cross-examination. Instead, he stated

that after formal talks, he offered `4,000/- to the appellant saying he

should not create hindrance in their work and when the appellant

refused to accept the money, he thought that the amount offered by

him was below the expectation of the appellant. Thereafter, he put the

currency notes in the pocket of the appellant saying that he should

accept the same, but the appellant took out the money from his pocket

and placed it on the table.

14. PW5 Suresh Kumar and PW7 P.P. Singh are the panch witnesses.

They, in their testimony, have more or less supported the prosecution

story. PW8 Inspector P. Balachandran, the trap laying officer has also

supported the prosecution version.

15. The appellant, in his statement under Section 313 Cr.P.C. has

denied the prosecution version in totality. He claimed that he is

innocent. Two bankers cheque/drafts pertaining to the loan applied for

by the wife of the complainant were handed over to the complainant

prior to the filing of the complaint and the cheque purchase limit of the

firm of the wife of the complainant had also been increased from `2

lakhs to `4 lakhs on 02.04.2002, which facts are confirmed by the

prosecution evidence. He claimed that he has been falsely implicated.

16. Learned Special Judge, on consideration of the evidence on

record, found the appellant guilty and convicted him for the offences

under Sections 7 and 13(2) read with Section 13(1)(d) of P.C. Act, 1988

vide impugned judgment and sentenced him vide order dated

11.07.2005.

17. Learned counsel for the appellant has submitted that the

appellant is innocent and his conviction is the result of wrong

appreciation of facts by the learned trial Judge. Learned counsel

argued that the learned trial Judge, while recording conviction of the

appellant, has ignored some important factors which cast a strong

doubt against the fairness of investigation as well as the correctness of

the prosecution story.

18. Dilating on the argument, firstly it is contended that the case of

the prosecution is highly suspect for the reason that there was no

occasion for the appellant to demand or accept bribe. In support of

this contention, learned counsel for the appellant has drawn my

attention to the complaint Ex.PW-2/D, which put the investigating

agency into motion. In the said complaint, it is specifically alleged that

the loan application which is projected as reason for demand of bribe

was sanctioned much earlier to the filing of the complaint and even the

pay orders pertaining to the sanctioned loan were issued to the

supplier companies who were to supply lathe machines to the firm

belonging to the wife of the complainant a day earlier to the complaint.

Learned counsel argued that once the loan had already been

sanctioned and released, there could be no occasion for demand or

acceptance of bribe and this raises a strong suspicion that the

complaint is motivated.

19. Learned counsel for the C.B.I., on the contrary, has submitted

that the learned Special Judge has rightly rejected said argument on

the ground that there was a banker-customer relation between the

appellant and the wife of the complainant, therefore, the appellant was

aware that with a view to get proper trouble free services in future, the

complainant was expected to keep the Branch Manager happy.

20. This argument, to my mind, is pure speculation because this

explanation has not come in evidence from the mouth of the

complainant. Thus, from the evidence, it appears that there was an

apparent lack of motive for demanding and accepting bribe and this

circumstance raises a suspicion against the correctness of the

complainant and it ought to have put the court on caution while

assessing the evidence.

21. Learned counsel for the appellant has further submitted that it is

the case of the prosecution that only the complainant Gurcharan Singh

was sent inside the house of the appellant to pass on the bribe money

to him. All other members of the trap party, including the Panch

witnesses, remained outside the house. Thus, the only material

witness to the transaction of passing of illegal gratification, if it actually

took place, is Gurcharan Singh. Learned counsel contended that

Gurcharan Singh, in his testimony, has not supported the case of the

prosecution either regarding the initial demand of bribe or demand and

acceptance of bribe at the time of trap. Instead, in the cross

examination by the Senior Prosecutor, CBI, he stated that since the

appellant refused to accept the bribe offered by him, he thought that

the appellant was expecting more than Rs.4,000/- and pushed the

currency notes in the pocket of the pant of the appellant and the

appellant immediately took out those currency notes from his pocket

and placed the same on the table. From this evidence, neither the

demand nor acceptance of bribe by the appellant is established.

Learned counsel argued that this fact, coupled with the lack of motive

on the part of the appellant to demand and accept bribe compounds

the doubt against the correctness of the prosecution story.

22. Learned counsel further contended that even the investigation of

this case has also been done in the most unfair manner. In support of

this contention, he drew my attention to Voice Specimen Memo

Ex.PW5/B which was prepared on 21.9.2002. In this memo, it is

recorded that on 21.9.2002, the appellant V.C.Jain voluntarily agreed to

give his voice specimen for comparison with the voice recorded in the

cassette recorder. Thereafter, a micro cassette recording was

arranged and a blank cassette was loaded in the same and the

appellant was given the text of the transcript of the conversation which

was recorded on 20.9.2002 between the complainant and the appellant

V.C.Jain with the instructions to read the same for the above said

purpose and the appellant read the aforesaid text of transcript, which

was recorded. As per the case of prosecution, aforesaid voice

specimen of the appellant was sent to CFSL for comparison with the

conversation recorded in the cassette at the time of trap. This,

according to learned counsel for the appellant, is not possible for the

reason that as per the testimony of Inspector Alok Kumar (PW9), who

took over investigation of this case on 25.9.2002, he got prepared the

transcript of the conversation between the accused and the appellant,

which was recorded at the time of raid, vide memo Ex.PW-2/H. This

memo is dated 30.9.2002 and it was signed by the complainant as well

as the Panch witnesses on 30.9.2002. Learned counsel argued that if

the transcript of the conversation between accused and the

complainant was prepared on 30.9.2002, there was no occasion for the

Trap Laying Officer Inspector Balakrishnan for giving transcript of

conversation to the appellant for reading for the purpose of recording

his voice specimen on 21.9.2002. This, according to learned counsel

for the appellant, raises a suspicion that either the facts recorded in

Voice Specimen Memo Ex.PW5/B are incorrect or the packet of the

audio recording was opened on 21.9.2002 and manipulated. Learned

counsel for the appellant has thus concluded that the case of the

prosecution is full of doubts, therefore the appellant is entitled to

atleast the benefit of doubt.

23. Learned Prosecutor appearing for the CBI has submitted that

Gurcharan Singh (PW2) has been won over by the appellant, therefore

much importance cannot be attached to his testimony. She argued

that the fact remains that the Panch witnesses, namely, PW5 Suresh

Chand and PW7 P.P.Singh, as well as Trap Laying Officer have fully

supported the case of the prosecution regarding recovery of tainted

money from the right side pocket of the pant of the appellant, which

version also gets corroborated from the fact that hand washes as well

as pant wash of the appellant turned pink, which circumstance raises a

strong inference that the appellant had handled the phenolphthalein

treated trap money. Learned Prosecutor submitted that it is settled

law that once acceptance of bribe by the accused is established on

record, there is a presumption under Section 20 of the P.C. Act 1988

that he accepted the money for the purpose specified under Section 7

and Section 13(2) r/w Section 13(1)(d) of the P.C. Act and it is for the

appellant to explain that he accepted the money for a purpose

otherwise than the illegal gratification.

24. I have considered the rival contentions and perused the material

on record. On perusal of the evidence, it is evident that the star

witness of the prosecution, namely, the complainant, who alone is the

witness to the actual transaction has not supported the case of the

prosecution either on the initial demand or on the demand and

acceptance of bribe at the time of the trap. Instead, he has stated in

his cross examination that he had forced the money into the right side

pocket of the pant of the appellant and the appellant immediately took

it out and placed it on the table. This explains the hand washes turning

pink.

25. Now, we are left with the testimony of the Panch witnesses, Trap

Laying Officer and the scientific evidence regarding comparison of the

conversation allegedly recorded at the time of laying trap and the

specimen voice of the appellant.

26. As per the testimony of Dr.Rajinder Singh, PSO(Physics), CFSL, he

compared the voices recorded in two cassettes, one allegedly

containing recorded conversation between appellant and the accused

at the time of trap and other containing the specimen voice of the

appellant, by applying the technique of auditory and voice

spectrography and found that the specimen voice in the cassette SV as

well as the questioned voice in the cassette voice QV were the voices

of the same person. He has proved his report Ex.PW-6/A. This report

of PW-6 Dr.Rajinder Singh is not of much help to the prosecution for the

reason that in order to take advantage of this report, the prosecution

has to prove beyond doubt that the specimen voice of the appellant

was actually taken as claimed by the prosecution and that the

questioned voice recorded in the cassette seized at the time of trap is

not manipulated.

27. Ex.PW5/B is the Voice Specimen Memo, which according to the

prosecution was prepared at the time of recording specimen voice of

the appellant. On perusal of this document, it transpires that the

appellant V.C.Jain was given the text of the transcript of conversation

which was recorded on 20.9.2002 between the complainant and the

accused, with the instructions to read the same for the purpose of

recording and he obliged by following the instructions. If this is true,

then the transcript of the conversation between the appellant and the

accused must have been prepared prior to the recording of voice

specimen of the appellant. This, however, is not the case. The

specimen voice of appellant was admittedly recorded on 21.9.2002

whereas as per the statement of Investigating Officer PW9 Inspector

Alok Kumar, the transcript of the recording of conversation between

the appellant and the complainant during trap was prepared on

30.9.2002. This is also confirmed by recorded voice transcription

memo Ex.PW-2/H prepared by Inspector Alok Kumar. It is not clear how

Trap Laying Officer Inspector Balachandran, on 21.9.2002 could

provide the transcript of the conversation recorded at the time of trap

on 20.9.2002 to the appellant for recording the specimen voice when

the said transcript, as per the Investigating Officer, was prepared on

30.9.2002. Further, as per the voice specimen memo Ex.PW-5/B, Trap

Laying Officer Inspector P.Balachandran gave transcript of the

conversation which took place at the time of trap on 20.9.2002 to the

appellant and asked him to read the same for recording the specimen

voice for comparison. It is not understandable as to why the appellant

was made to read the exact transcript of the conversation. This

circumstance raises a strong possibility that the voice specimen

recorded on 21.9.2002 might have been used for fabrication of the

audio record of conversation between the complainant and the

appellant which took place at the time of trap. The doubt is

compounded for the reason that if the transcript was already available

on 21.9.2002, there was no occasion for the I.O. Inspector Alok Kumar

to prepare another transcript on 30.9.2002. Thus, in my view, audio

recording of the conversation is suspect and the prosecution cannot

take advantage of said recording.

28. Coming to the hand washes and pocket wash turning pink, it is

explained by the version of the complainant, wherein he stated that

when the appellant did not accept the offered money, he had forced

the money into the right side pocket of the pant of the appellant and

the appellant took out that money and place it on the table. This

explains the presence of phenolphthalein powder in the pant pocket as

well as on the hands of the appellant. Thus, in the absence of direct

evidence regarding the demand and acceptance of bribe by the

appellant, I find it unsafe to base the conviction of the appellant on the

basis of statement of Panch witnesses and trap officer who have

neither heard the conversation nor seen the transaction of passing of

the bribe money, more so for the reason that as per the prosecution

case, the complainant persuaded the I.O. to send him alone to the

house of the appellant for paying the bribe.

29. In view of the discussion above, I am of the view that the

prosecution case is full of doubt. Therefore, I find myself unable to

sustain the impugned judgment of conviction and consequent order on

sentence. Appeal is, accordingly, accepted. Impugned judgment and

order on sentence are set aside and the appellant is acquitted on both

counts, giving him benefit of doubt.

30. Appeal is disposed of accordingly.

(AJIT BHARIHOKE) JUDGE DECEMBER 24, 2010 pst/ks