Delhi High Court

Roop Chand vs State(Cbi) on 7 January, 2011

Author: Mukta Gupta

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+                        Crl. A. No. 135/2001

%                                            Reserved on: 22nd November, 2010

                                             Decided on: 7th January, 2011

ROOP CHAND                                                  ..... Petitioner
                               Through:   Mr. V.K.Ohri and Mr. Vivek Singh
                                          Bishnoi, Advocates

                      versus

STATE(CBI)                                                 ..... Respondents
                               Through:   Mr. Vikas Pahwa, S.C. for CBI with
                                          Ms. Suchiti Chandra, Advocates

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may          Not necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported            Yes
   in the Digest?

MUKTA GUPTA, J.

1. By the present appeal, the Appellant lays a challenge to the judgment

passed by the Ld. Special Judge, convicting him for offence punishable under

Section 12 of the Prevention of Corruption Act, 1988(in short „P.C. Act‟) and

sentence of Rigorous Imprisonment for a period of two years and fine of

`30,000/-, in default of payment of fine, to further undergo Rigorous

Imprisonment for a period of six months.

2. Briefly, the prosecution case is that the Appellant Roop Singh offered

to the Complainant Lt. Col. B.K. Singh, a public servant who was posted as

Dy. Independent Recruitment Officer with IRO, Delhi Cantt. an illegal

gratification of `.10,000/- per candidate for recruitment of certain candidates

in the Indian Army. The Complainant refused the offer. However, the

Appellant threatened him and went away saying that he would come back

after a few days and he should reconsider his proposal. On 15th January, 1990,

the Appellant gave a telephonic call to the Complainant and stated that he

would visit him on the 17th January, 1990 with a list of candidates to be

inducted in the Army. On the Complainant disconnecting the phone, the

Appellant visited the residence of the Complainant in the evening and again

persuaded him to agree to his request and gave a chit Ex.PW6/A detailing the

names of the candidates to be inducted in the Indian Army and threatened him

to accede to his request. He also said that the Complainant can be given more

gratification per candidate. The Complainant reported the matter to his

commanding officer and thereafter a written complaint Ex.PW1/A was given

in the office of the Superintendent of Police, CBI, Anti-Corruption Branch,

New Delhi. As the Appellant proposed to visit the Complainant on 2nd

February, 1990 at around 7:30 p.m. along with the bribe amount, PW 6 D.C.

Sorari, DSP, CBI organized a raid by joining Inspector S.C. Yadav and

Inspector S.K. Saxena from CBI and two panch witnesses namely Sh. M.M.

Bhatia and Sh. Tajender Singh Walia requisitioned from the Oriental Bank of

Commerce, Jhandewalan Extension, New Delhi. During the pre-raid

formalities which were conducted in the afternoon of 1st February, 1990, a

micro-cassette recorder alongwith one micro-cassette was arranged. The

audio cassette was checked by the witnesses and found to be blank. After

loading the recorder with the blank audio cassette, the same was given to the

Complainant and he was directed to record the said conversation which might

take place between him and the Appellant. On 2nd February, 1990, all

members of the trap party reached the residence of the Complainant at around

5:30 am. Both the panch witnesses were asked to conceal themselves behind

the curtain between the drawing-room and the lobby and the other members of

the trap party concealed themselves in the bedroom of the children. The

Appellant arrived at around 8:10 a.m. He was taken to the drawing-room by

the Complainant and they had a conversation. The Appellant offered the bribe

by saying "SAHEB PAISE LE AAYA HOON LEKIN KAM HAIN BAKI

KAAM HONE PAR DE DONGA KYONKI CALL LETTER ABHI TAK

NAHI PAHUNCHE HAI". The Appellant took out the money and offered the

same to the Complainant. When the accused started counting the same, the

pre-arranged signal was raised. On hearing the signal, the members of the

trap party rushed into the drawing-room and apprehended the accused along

with the bribe amount of `11,950. Thus, on the aforesaid allegations, a case

FIR was registered under Section 12 of the P.C. Act and after completion of

the investigation, charge-sheet was filed against the Appellant. During the

trial, the Complainant Lt. Col. B.K. Singh and panch witness M.M. Bhatia,

expired and thus, the two material witnesses on whose testimony the entire

prosecution case hinges are PW 1 T.S. Ahuwalia, the panch witness and PW 6

D.S. Sorari, the Investigating Officer. PW 4 M.C. Joshi, DSP to whom

subsequent investigation was transferred is also a relevant witness.

3. Learned counsel for the Appellant challenging the conviction contends

that the complaint dated 1st February, 1990 against the Appellant has not been

proved as the prosecution failed to examine the Complainant and thus there is

no evidence to establish the allegation of the initial offer which led to filing of

the complaint. The entire prosecution case is based on the sole testimony of

one panch witness who was not ever present when the alleged complaint was

filed before CBI. Moreover, out of the 25 prosecution witness cited, only six

have been examined during trial and thus an adverse inference as per Section

114(g), Evidence Act should be drawn against the prosecution. There are

material contradictions in the testimony of PW 1 T.S. Walia and PW 6 D.C.

Sorari as PW 1 in his testimony has deposed that `12,000/- were recovered

whereas PW6 states that `11,950/- were lying on the table. According to

PW1, on entering the drawing room PW 6 caught hold of the accused with the

money in his hand, however, as per PW 6, the said money was lying on the

table. Also as per PW1, the said cassette recorder was kept in a flower pot

whereas PW6 Sh. D.C. Sorari stated that the said cassette recorder was kept in

the pocket of the Complainant for recording the conversation between him

and the accused. Though chance prints were recovered from the spot,

however they were not produced during trial. Thus an adverse inference

should be drawn. PW 2 C.P. Pandey has not supported the prosecution case

as he has not identified the Appellant in the court as the person who had

approached him with a proposal for the recruitment of his candidates. PW 3

Satish Kumar is the person who had allegedly given his papers to the

Appellant for recruitment in Army. This witness in his testimony had deposed

that "it is incorrect to suggest that on 17 th January, 1990 I along with my

brother visited the residence of Roop Chand in Gurgaon. It is incorrect to

suggest that we gave our application form along with other particulars to

Roop Chand for submitting the same at the relevant counter". Hence this

witness has also not supported the prosecution case. Learned Trial Court has

disbelieved the defence version on the ground that no witness in the defence

has been examined. However, it is well-settled that the prosecution must

stand on its own legs and it cannot take advantage of the weakness of the

defence, nor can the Court on its own make out a new case for the prosecution

and convict the accused on that basis. Reliance is placed on Bhagirath vs.

State of Madhya Pradesh AIR 1976 SC 975. It is thus prayed that the

Appellant be acquitted of the charges framed. In the alternative it is also

prayed that since the Appellant is an old man of 88 years of age, he be

released on the period of imprisonment already undergone.

4. Learned counsel for the Respondent on the other hand contends that

under Section 12 of the P.C. Act, the Appellant is liable to be punished for

abetment of the offences punishable under Section 7 and 11 of the P.C. Act

even if the offence is not committed as abetment in itself is an offence. The

incident is dated 2nd February, 1990. The Complainant Lt. Col. B.K. Singh

and the panch witness M.M. Bhatia expired on 2nd July, 1991 and 5th January,

1998 respectively before they could be examined in the trial court and thus the

prosecution could not examine them. Therefore, no adverse inference can be

drawn under Section 114(g) of the Evidence Act. The testimony of T.S.

Walia, PW1 is duly corroborated by the testimony of D.C. Sorari, PW6.

Coupled with the tape-recorded conversation between the Complainant and

the Appellant, there is sufficient evidence to bring home the charge for

offence punishable under Section 12 of the P.C. Act against the Appellant.

The contradictions as referred to by the learned counsel for the Appellant are

minor in nature and are bound to occur in view of the passage of time. During

appreciation of the evidence, these minor contradictions should be ignored.

Once a prima-facie case is proved by the prosecution then in terms of Section

20 of the P.C. Act, a mandatory presumption is required to be raised and the

onus thereafter shifts to the accused to rebut the said presumption.

5. I have heard the learned counsel for the parties and perused the record.

There is no doubt that PW1 T.S. Walia, the panch witness has fully supported

the prosecution case. According to him, he not only met the Complainant on

1st February, 1990 when the Complainant came to the office of CBI but he

also fully satisfied himself about the contents of the complaint. Moreover, on

2nd February, 1990 when the trap was laid, PW1 was hiding himself behind

the curtain. He witnessed and heard the entire conversation between the

Appellant and the Complainant and was thus a witness to every transaction on

the date of incident. He is an eye-witness to the occurrence and in the absence

of any motive to falsely implicate the Appellant, his testimony cannot be

brushed aside lightly. This witness has proved the complaint of the

Complainant Ex. PW1/A. He has also deposed that he heard the Appellant

telling Lt. Col. B.K. Singh, the Complainant "SAHEB PAISE LE AAYA

HOON LEKIN KAM HAIN BAKI KAAM HONE PAR DE DONGA

KYONKI CALL LETTER ABHI TAK NAHI PAHUNCHE HAI". It is

thereafter on a signal being raised by the Complainant that the Appellant was

apprehended and money was recovered from his hand. The fact that the

money was `50/- short of `12,000/- would not make a material difference so

as to cast a serious doubt on the prosecution case. The testimony of this

witness stands duly corroborated by the testimony of PW6, Sh. D.C. Sorari,

Dy. S.P., CBI, the trap officer. This witness has also corroborated the version

of the Complainant, the pre-trap evidence and he is the one who apprehended

the Appellant in the drawing-room of the Complainant. The fact that the

Appellant was sitting with the Complainant in his drawing-room and some

currency notes along with some papers were lying on the table has also been

proved by the testimony of this witness. The articles from the spot were seized

which have been duly exhibited, which also include a list of candidates and

some application forms etc. I find no merit in the contention raised by the

learned counsel for the Appellant that there are material contradictions in the

testimonies of PW1 and PW6 with regard to the placement of tape-recorder or

that the bribe money was recovered from the hand or from the table, as with

the passage of time, minor variations in the testimony of the witnesses are

bound to occur and such minor discrepancies cannot throw out the entire

prosecution case. The evidence of these two witnesses is sufficient to prove

the charge for offence under Section 12 of the P.C. Act against the Appellant.

6. The Hon‟ble Supreme Court in M. Narsingha Rao vs. State of Andhra

Pradesh 2001(1) SCC 691 while dealing with the presumption under Section

20(1) of the P.C. Act held:

"14. When the sub-section deals with legal presumption it is to be understood as in terrarium i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act".

Sub-Section (2) of Section 20 is similar to Sub-Section (1). In terms of

Sub-Section (2) of Section 20, once an offer or attempt to give is proved, the

Court is duty bound to presume the motive or reward as mentioned in Section

7 and thereafter the onus shifts to the accused to disprove the said fact. Thus,

I find no merit in the contention of the learned counsel for the Appellant that

the learned trial court erred in arriving at the conclusion that the Appellant did

not produce any evidence to prove this defence. The Appellant has taken the

defence in his statement under Section 313 Cr. P.C., that on the date of

incident he had gone to take earnest money from the Complainant for the plot

he desired to purchase. However, neither any defence to this extent has been

produced nor anything has been elicited from the testimony of prosecution

witnesses in this regard.

7. Coming to the evidence of tape-recorded conversation. The law in this

regard is well-settled as held by the Hon‟ble Supreme Court in R.M. Malkani

vs. State of Maharashtra 1973 (1) SCC 471:

"23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice: and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible Under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible Under Section 7 of the Evidence Act. The conversation between Dr. Motwani and the Appellant in the present case is relevant to the matter in issue. There is no dispute about the identification of the voices. There is no controversy about any portion of the conversation being erased or mutilated. The Appellant was given full opportunity to test the genuineness of the tape recorded conversation. The tape recorded conversation is admissible in evidence."

Applying the test as laid down by the Hon‟ble Supreme Court in this

case, though the witnesses have stated that the cassette was blank and was

duly sealed after the recording and PW1 has also identified the voice of the

Appellant, however, the link evidence that the said cassette was not tempered

with is missing. Therefore, the same cannot be relied upon as the mandate for

admissibility of the tape-recorded conversation is that the said cassette should

be duly sealed, voices in the conversation should be recognized by the witness

and the factum of non-tempering of the same should be proved by the

prosecution. In the present case, the chain of link evidence proving that the

cassette was kept intact in sealed condition is incomplete and hence the

evidence in the form of tape-recorded conversation cannot be relied upon.

8. In view of the testimony of PW1 and PW 6 and the statutory