Delhi High Court
Nepal Singh Rawal vs Cbi on 4 July, 2011
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 20th May, 2011
Judgment Delivered on: 4th July, 2011
+ CRL.APPEAL NO.826/2004
NEPAL SINGH RAWAL
......Appellant
Through: Mr. Sandeep Sethi, Sr. Advocate
with Mr. Anurag Jain, Advocate
Versus
CBI ......Respondent
Through: Mr.A.K.Gautam, Standing
Counsel for CBI with Mr. Neeraj
Kapoor, Advocate.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be reported
in the Digest? YES
1. The instant appeal is being filed against the
judgment/order dated 27.10.2004 of Special Judge wherein
the appellant was convicted to rigorous imprisonment for
two years and to pay a fine of `25,000/- for the offence
punishable under Section 7 of the PC Act. In default of
payment of fine, he shall undergo simple imprisonment for
three months each. Convict is further sentenced to rigorous
imprisonment for three years and to pay a fine of `25,000/-
for the offence punishable under Section 13(2) read with
13(1)(d) of PC Act. In default of payment of fine, he shall
undergo simple imprisonment for six months each. It is
further directed that all the substantive sentences shall run
concurrently and period of detention already undergone
during investigation/trial of the case, if any, shall be set off
under Section 428 Cr.P.C.
2. The essence of the allegation against the appellant is
that, working as an Assistant Collector, Grade-II, Recovery
Wing, Delhi Development Authority, he was pursuing
proceedings against M/s. Pragati Construction Company for
recovery of ground rent for the sum of ì.77,44,000/- and had
issued arrest warrant against the owner of the said
company. It is further alleged that the Civil Judge had stayed
the recovery proceeding and directed the DDA to issue
demand notice as per the order of the Financial
Commissioner and that the appellant demanded ì.10,000/-
"for complying with the said order of learned Civil Judge".
3. The charge sheet was filed, wherein, the appellant has
been shown in Column No. I, as accused whereas his son
namely Yash Pal Rawal and Lalu Sahu (juice vender) are
shown in Column No. 2.
4. The Trial Judge has framed Charge vide its order dated
22.07.1998, against the appellant as under :-
"Firstly you Nepal Singh Rawal being a public servant
while working in the capacity of Assistant Collector,
Grade-I DDA on 15-10-95 at the Office of M/s Pragati
Construction Company, Nehru Place, New Delhi
demanded illegal gratification of Rs.10,000/- from the
complainant Satbir Singh as a motive or reward for
accepting the ground rent as per the order dated 31-
1-95 of the Court of Shri Rakesh Garg, Civil Judge,
Delhi and later on you asked complainant Satbir
Singh to pay Rs.5,000/- out of the demanded amount
on 20-10-95 and to pay balance of Rs.5,000/- on
completion of the work. Further on 27-10-95 at about
12.00 Noon you reiterated your demand for
Rs.5,000/- on telephone and directed complainant
Satbir Singh to pay you demanded amount on 28-10-
95 at about 10.00 AM at Nagar Dass Tea Stall, ITO
New Delhi and in furtherance of your aforesaid
demand you on 28-10-95 in between 12.10PM to
12.40PM at ITO New Delhi demanded illegal
gratification of Rs.5,000/- from the complainant and
accepted the same through Shri Lalu Sahu who
accepted aforesaid amount from the complainant at
your direction. Thereby you have committed an
offence punishable U/s 7 of the P.C. Act, 1988 and
within my cognizance.
Secondly, you Nepal Singh Rawal being a public
servant while holding the office of Assistant Collector,
Grade-I Recovery Wing, DDA, INA, Vikas Sadan on
28-10-95 in between 12-10PM and 12-40PM at ITO,
Delhi by corrupt and illegal means and by abusing
your position as such public servant obtained for
yourself pecuniary advantage to the extent of
Rs.5,000/- without any public interest thereby
committed an offence punishable U/s 13(2) r/w
13(1)(d)of the PC Act, 1988 and within my
cognizance."
5. The appellant pleaded not guilty.
6. The prosecution has examined nine witnesses,
whereas, the appellant produced three defense witnesses.
7. The Trial Judge has mainly relied upon the following
witnesses:-
PW 1 Sh. K.S. Chabra who proved phenolphthalein
test.
PW 2 Satbir, who has proved complaint.
PW 4 B.R. Gupta, Partner in Pragati Constructions and
Employer of PW 2 Satbir.
PW 5 R.K. Agarwal, shadow witness.
PW 6 Uday Kumar, Punch Witness.
PW 8 R.S. Tokus, first IO who laid the trap.
PW 9 Mrs. Asha Badola, second IO of the case.
8. Learned counsel for the appellant submits that
pursuant to complaint made to CBI on 27.10.1995 by PW2
Sh. Satbir Singh (who claimed to be an employee of the said
company), CBI formed the trap team. It is further alleged
that in addition to CBI‟s/witness, PW-5 and PW-6 were also
summoned as independent witness by CBI on 26.10.1995,
i.e. even before the lodging of the complaint dated
27.10.1995. PW-6 recovered a bundle of currency notes
from Lalu Sahu (Juice Vendor). Subsequently, at the time of
recovery, even the said punch witness PW-6 was not aware
nor told that the said money, was paid to Lalu Sahu by PW2
Sh. Satbir Singh (Complainant) as demanded by the
appellant. Although it is alleged that PW6 had gone to the
trap place, had taken appropriate position, waiting to see
the signal from the shadow witness PW5.
9. Mr. Sandeep Sethi, Sr. Advocate, appearing for the
appellant, raised few points in favour of the appellant as
under:-
(i) No recovery affected from the appellant.
(ii) No demand/acceptance of the appellant.
(iii) No forensic examination of the audio tapes,
recorded by the CBI.
(iv) No voice match of the appellant, as no voice
sample of appellant was ever taken.
(v) No stay/no proceeding in any Court, which falsify
the basis of complaint.
(vi) Sealed Cash box neither produced nor exhibited.
(vii) No phenolphthalein test on the appellant.
(viii) The scooter used in the offence, not seized.
(ix) The son of the appellant was not taken in
custody.
(x) Lalu Sahu (Juice Vendor) from whom the recovery
of G.C. Notes got effected, was not arrested nor
made accused and nor produced as witness.
10. Now, I will discuss the depositions made by the
witnesses which led to conviction of the appellant:-
11. The complainant PW2 Sh. Satbir Singh, made a
complaint Ex.PW2/A dated 27.10.1995 to CBI, Anti
Corruption Branch, Lodi Road, New Delhi as under:-
He was working as Field Officer in M/s Pragati
Construction Company at Devika Tower, Nehru Place, New
Delhi. The aforesaid plot of the company was allotted by
DDA in the year 1980. On 14.01.1995, the petitioner being
an Assistant Collector, Gr.-II, Recovery Wing DDA, INA Vikas
Sadan, had sent a recovery demand for ì.44,85,000/-. The
said demand was against the ground rent. They challenged
before Sh. Rakesh Garg, Civil Judge, Delhi, and on
31.01.1995 the Court issued order for recovery on the order
dated 30.10.1992 of the Financial Commissioner. The
aforesaid order was served to DDA. On 21.09.1995, Sh. N.S.
Rawal, again sent a demand of ì.77,44,000/- which was to
be deposited till 09.10.1995. He contacted Sh. N.S. Rawal on
09.10.1995 and requested him in writing that the ground
rent be charged as per the order of the Court. Sh. Rawal
refused to obey the order of the Court, said that the
recovery demand has to be deposited. On 15.10.1995, Sh.
Rawal came to their office and said that he will comply with
the order of the Court, if they give ì.10,000/- as a bribe.
Further he said, ì. 5,000/- should be given to him in
advance, rest can be given after the work is done. Sh.Rawal
had made telephonic call on 20.10.1995, in the evening at
4.30 p.m., to come with money at Nagardas Tea Vendor,
ITO. Accordingly, he informed his employer Sh. D.R. Gupta,
who refused to give bribe. Today, i.e. 27.10.1995 at about
12 „O‟clock, Mr. Rawal told on phone that tomorrow on
28.10.1995 at about 10 „O‟clock he should reach at
Nagardas Tea Vendor, ITO with ì. 5,000/-, failing which, he
will seal their building. They did not want to give bribe,
therefore, the legal action be taken against Sh. N.S. Rawal,
Assistant Collector, Gr.-II, Recovery Wing, Vikas Sadan,
office at INA, New Delhi, DDA.
12. PW4 Sh. D.R. Gupta deposed that he is a partner of
M/s. Pragati Construction Company, 6, Devika Tower, Nehru
Place, New Delhi. Sh. Satbir Singh used to look after the
Court matters relating to Ms. Pragati Construction Company.
There were certain recoveries pertaining to the ground rent
pending against 6, Devika Tower. On 20.10.1995, Satbir
Singh informed him that there was a stay order from the
court against the DDA‟s recoveries, even then, Nepal Singh
Rawal was demanding Rs10,000/- as gratification in relation
to those recoveries. (Objected to). He directed Satbir Singh
to lodge a complaint with CBI, accordingly, on 27.10.1995
he gave `5,000/- to Satbir Singh to be used for the trap.
13. In cross-examination, he states that it is correct that
there was a recovery of ground rent for `77,44,900/- against
his firm. However, that recovery was paid by the orders of
the Court. The stay order against the said recovery was
from the Court of Civil Judge, Tis Hazari, Delhi. He did not
hand over the copy of the said stay order to CBI during
investigation. If at all it was handed over to CBI, it must
have been done by my „Karinda‟ Satbir. He did not
remember, therefore, he could not admit or deny that in
realization to aforesaid ground rent, they fought the
litigation upto Supreme Court. It is incorrect to suggest that
they lost their case in relation to said recovery upto
Supreme Court or that thereafter, recovery proceedings
were initiated. Satbir did not tell him that there were
warrants of arrest against him in relation to recovery
proceedings of the ground rent. It is correct to suggest that
he had come to know that on 19.10.1995 and 20.10.1999
his warrants of attachment could not be executed because
of lack of identification. Therefore, accused had passed an
order that he himself would go along with „Bailiff‟ to execute
the warrants issued against him, to attach in the recovery
proceedings. There was one Shambhu Ram employee in
M/s. Pragati Construction Company. He did not know,
therefore, he could not admit or deny that the said
Shambhu Ram was a retired CBI Officer. He did not know if
the recovery notices relating to the ground were received by
Shambhu Ram. It is correct that in relation to the impugned
recovery of ground rent, previously also, officials of the
office of Asstt. Collector were trapped on the complaint of
the said Satbir. Again said, the aforesaid trap was not in
relation to the impugned recovery but it was a different
recovery of ground rent. However, said ground rent
recovery was in relation to the ground rent of 6, Devika
Tower, Nehru Place, New Delhi.
14. Further, he stated that on 20.10.1995, Satbir informed
him about the demand of bribe on telephone. He received
said telephone calls from Satbir in his office. He did not talk,
from where he called. On the receipt of said telephone calls,
he directed Satbir to come to the office. He did not know,
where the complaint was written by Satbir. It is incorrect to
suggest that on 20.10.1995 he did not attend his office or
that he was absconding to avoid the warrant of his arrest.
He did not remember whether or not he mentioned in his
statement under Section 161 Cr.P.C. that Satbir informed
him about the demand of bribe on telephone. (witness is
confronted the statement Ex. PW4/DA, where it is not
mentioned that information was conveyed by Satbir on
telephone or not). Further, he states that it is correct to
suggest, he directed Shambhu Ram to accompany the
complainant to CBI office for submitting the complaint.
15. PW5 R.K. Aggarwal, deposed that on 27.10.1995, he
along with his colleague Uday Kumar visited CBI office as
per the instructions of their Business Office Mr. Gupta. He
met one Inspector of CBI whose name he did not remember.
There, he was introduced to one Mr. Satbir and his
complaint was shown to him which he went through and
asked certain questions to Satbir for ascertaining the
genuineness of his complaint. It was revealed during
discussion with Satbir that one DDA officer was demanding
`10,000/- as bribe, and now it was settled, the sum of
`5,000/- which was to be paid on the next date. A telephone
conversation between complainant and the officer of DDA
was arranged which was recorded in their presence. The
time of giving bribe was fixed at 12.00 noon on 28.10.1995.
They were discharged for that day, with directions to come
on next date on 28.10.1995 at 10.00 am. Accordingly, he
reached CBI office, Satbir was already sitting there, who had
brought `5,000/- with him. The numbers of G.C. Notes were
noted down, the numbers were confirmed and one chemical
powder was applied on those. The tainted G.C. Notes were
kept in the front pocket of Satbir‟s pant. He was directed to
remain with the complainant Satbir with the directions to
over-hear the conversation at C.D. Transaction. He was
further directed to give signal by placing his hand on his
head as soon as the transaction of bribe got completed.
Thereafter, they left for the DDA office at Vikas Minar, ITO.
16. Further, he deposed that time was fixed for meeting in
a hotel which was behind the Vikas Minar. They sat on the
chair lying outside the hotel. While they were sitting there,
two persons came on the scooter and Satbir signaled him
that the person had come, to whom the bribe was to be
given. Out of both the persons, who came on scooter, one
person came towards them and the other young man
remained seated on the scooter. Satbir wished that person
„Namaskar‟ (that person reciprocated). That person inquired
about him to which Satbir told him that he was a person
known to his brother-in-law and he was to be introduced
with Gupta Ji for service. Satbir asked that person that how
the money was to be paid on which that person took Satbir
aside towards a juice corner and he was following them.
There, they had juice, thereafter, Satbir asked that person
as to whom the money was to be given and how to be
given. On which that person told Satbir, he should pay the
money to Juice Vendor and that person directed the Juice
Vendor to wrap that money in a paper and keep with him.
Further, told to that Juice Vendor that after some time the
young man sitting on the scooter would come, to whom he
had to give the money. Satbir gave the bribe amount to that
juice seller and left the juice shop. The juice seller wrapped
that amount in a paper and kept the same in the cash box.
As soon as, Satbir and Nepal Singh left the shop, he gave
signal and on receipt of signal the other member of trap
party, rushed to the spot and arrested all three including
Juice Vendor, Nepal Singh and young boy who was sitting on
the scooter.
17. Further, deposed that the bribe amount wrapped in
the newspaper was recovered by his colleague Uday Kumar
from wooden cash box. Except the tainted amount, the
other amount was returned to the Juice Vendor. The
numbers of those recovered G.C. notes were tallied with the
numbers noted down in annexures to handing over memo.
The hands of that Juice Vendor were washed in separate
solution of Sodium Carbonate and both the solutions turned
pink which were transferred into clean empty bottles and
were sealed.
18. He deposed further that the wash of newspaper was
also taken in another freshly prepared solution of Sodium
Carbonate which also turned pink, it was also transferred
and sealed in another clean bottle. He and Uday Kumar
signed on these paper labels of three bottles pasted on
them. Recovery memo pertaining to the post raid
proceedings Ex.PW2/E was also prepared at the spot.
19. In cross-examination, he states, it is correct that he
was also shadow witness in CBI Vs. Narender Singh, SI and
he appeared as a witness in that case in the Court. He was a
witness in four other cases of traps organized by CBI. It is
wrong to suggest that he was stock witness of the CBI. The
name of the Vigilance Officer, who had deputed him to join
in the said raid was Mr. Gupta. He was given the order in
writing. Vigilance Officer must have received requisitioned
letter from CBI, he did not see that letter. He could not
admit or deny, if the said letter contained his name.
20. Further, states that he had not heard the conversation
on that parallel telephone. On 27.10.1995 his statement was
not recorded by the CBI officials. On 14.12.1995
transcription was prepared. Perhaps Uday Kumar was
present at that time but he was not sure. The accused did
not demand the money. However, he had asked the
complainant to give money to the Juice Vendor by words.
21. PW6, Asstt. Manager, FCI Barakhamba Lane, CP, New
Delhi, deposed that on 26.10.1995, he was directed by their
Vigilance Officer to visit CBI office on 27.190.1995, R.K.
Aggarwal was also with him who reported to CBI office along
with him. In CBI Office, they met one Inspector Tokas. There,
they were told that one complainant Satbir Singh had
lodged a complaint against N.S. Rawal for demanding
`10,000/-.
22. Further, he deposed, after completion of all the pre-
trap proceedings, all the trap team numbers reached Vikas
Minar, ITO. On reaching there, Satbir Singh was
accompanied by R.K. Aggarwal as a shadow witness. Both
Satbir and R.K. Aggarwal reached near a tea stall at Vikas
Minar and he took his position near the scooter stand. At
about 2/2.30 pm he heard the noise from stall and found
that all the CBI officials were assembled there and N.S.
Rawal was present with his son. There was some scuffling.
On the directions of trap laying officer, he recovered the
tainted amount wrapped in a newspaper from the cash box
of the owner of the Juice shop. The hand washes of juice
owner was taken, which, also turned into pink colour.
Similarly, wash of newspaper was also taken, which, also
turned pink. The number of G.C. notes were tallied with the
numbers noted down in the annexures to handing over
memo and were found to be correct. Even, he was told by
one of the trap team members, on whose direction, the
tainted money was handed over to juice-wala by Satbir.
Thereafter the CBI did all procedural rituals and took his
signatures on the memo prepared.
23. This witness was recalled for further examination-in-
chief, states that he had seen the G.C. notes Ex. P1 to P70,
these are the same which were recovered at the spot from a
newspaper lying in the cash box of the juice shop. He also
had seen the washes Ex. P72 to Ex. P74 bears his signatures
at Point B on all the washes bottles. The Cassette Ex.
P77was played and witness identified his voice saying "main
Uday Kumar A.G.-I Head Quarter main kaam karta hoon,
main CBI office say bol raha hoon".
24. PW8 R.S. Tokas, who was posted as Inspector CBI/ACB,
Delhi, on 27.10.1995 deposed that the complaint dated
27.10.1995 of complainant, Satbir Singh employee of M/s
Pragati Construction Company was marked to him by the
then SP, Sh.V.S. K Kamudy vide endorsement Ex. PW8/A on
complaint Ex. PW2/A. On receipt of this complaint, presence
of two witnesses namely, Sh. R.K. Aggarwal, A.G.-I and Sh.
Uday Kumar, A.G.I both from FCI, HQ, Barakhamba lane,
Connaught Place, New Delhi, were procured and in their
presence a tally tape recorder was fitted to telephone
installed in the office of SP, CBI/ACB, Delhi. The independent
witness Sh.R.K. Aggarwal, was asked to dial the telephone
number of accused Nepal Singh Rawal, which, was given by
the complainant Sh. Satbir Singh. After the talk was
materialized, the receiver was handed over to Satbir Singh
complainant, both complainant and the accused had
conversation over the telephone, which, was recorded in the
new Audio Cassette fitted to the tele-tape recorder. After
the conversation was over, the Audio Cassette was
rewinded and played to hear the conversation which
indicated the demand of bribe by the accused and the
accused had agreed to accept the bribe money from the
complainant at 12.00 noon at ITO in the tea stall of
Sh. Nagardas. The Audio cassette was again rewinded and
sealed, after wrapping in a piece of cloth and was sealed
with a CBI seal. The seal so used was handed over to the
witness Sh. Uday Kumar for safe custody. Thereafter FIR RC
No. 94 (A)/95/DLI was registered which is Ex. PW8/B bearing
the signatures of the then SP, Sh. V.K. S. Kumudy at Point
„A‟. The independent witnesses and the complainant were
asked to come to the CBI office at 10.00 am on 28.10.1995.
A CBI team was constituted including him consisting of
Inspector R.V.S. Lohmor, Inspector S.R. Singh, Inspector S.K.
Bhatti, and SI Sh. Prashad. The complainant produced a sum
of `5,000/-. On his direction, Inspector S.K Bhatti treated the
G.C. notes, so produced by the complainant, with
Phenolphthalein powder and gave a demonstration about
the reaction of Phenolphthalein powder in the solution of
sodium carbonate. After completing all pre-trap rituals, the
Phenolphthalein powder treated notes of `5,000/- were kept
in the front side pocket of the shirt of the complainant Satbir
Singh and directed him to hand over the said money to the
accused on his specific demand and not otherwise. All the
proceedings which took place in CBI office were recorded in
handing over memo Ex. PW2/D.
25. Thereafter, the CBI raiding party reached the spot i.e.
tea stall of Nagardas at ITO near Vikas Minar at about 11.45
am. The complainant Satbir Singh and independent witness
Sh.R.K. Aggarwal, who was asked to act as shadow witness,
sat on the chair in front of a table and the rest of raiding
party members also took suitable position at about 12.10
pm. Accused came to the complainant. They both talked
about 10-15 minutes and then proceeded towards ITO
flyover. Independent witness also followed. All the three,
then reached at a juice corner where the complainant and
the accused drank juice at 12.45 pm. The independent
witness Sh.R.K. Aggarwal gave signal, the CBI raiding party
rushed towards the juice corner and accused N.S. Rawal was
caught hold by SI Mr. Prashad and Inspector S.R. Singh from
his wrists. The independent witness R.K. Aggarwal disclosed
that the accused Rawal had asked the complainant Satbir to
hand over the bribe money to juice-wala who after taking
over the said money wrapped the same in a piece of
newspaper and kept the same in his cash box. On his
direction, the other witness namely, Uday Kumar recovered
the bribe money of `5000/- form the cash box of juice-wala.
Both the witnesses were asked to tally the number of notes,
so recovered, with the numbers mentioned in the anneuxres
to the handing over the memo. They confirmed that the
numbers were same. In the meantime, the juice wala whose
name was later on disclosed as Lalu Sahu was also taken
into custody, washes of both of his hands were separately
taken in the solution of sodium carbonate which was
transferred in two separate glass bottles and marked as
RHW and LHW to denote left hand wash and right hand
wash, respectively.
26. Similarly, the wash of newspaper in which the money
was wrapped was also taken in solution of sodium carbonate
and was transferred into the separate bottle and marked as
NPW to denote newspaper wash. All the three bottles were
sealed with CBI seal and the both wrappers and paper label
pasted on the bottles were signed by the witnesses.
27. Thereafter, the accused N.S. Rawal, Lalu Sahu and the
son of accused who had also accompanied the accused on a
scooter were taken into custody and the scooter on which
the accused had come was also taken into custody. A
recovery memo was prepared in which all the proceedings
were recorded. The same is Ex.PW2/E.
28. In the cross-examination, this witness states that he
did not enquire from the complainant as to where he had
written this complaint Ex. PW2/A. He did not recollect, if the
complainant had come to CBI office all alone or he was
accompanied with anybody. One person was with the
complainant but he did not recollect his name. He could not
admit or deny, if the person by the name of Shambu Ram,
was with the complainant, when he had come to CBI to
lodge the report. He did not enquire from the complainant, if
he had brought the required money for the trap or not. The
raiding party reached at the spot in front of tea shop,
however, the place was opened and some chairs were lying.
On receipt of signal, he challenged the accused for having
demanded and accepting the bribe from the complainant.
The accused denied having demanded or accepting money
from the complainant. (Vol.) but at the same time, the
witness pointed out that the money was handed over to
juice wala on the direction of the accused. The personal
search of accused was not taken at that time. Since the
accused had not touched the notes, therefore, he did not
take the wash of the accused. The recovery memo Ex.
PW2/E was written by him. It is wrong to suggest that post-
raid proceeding were not conducted at the spot and that
entire writing was done subsequently, in CBI office. It is
further incorrect that he did not lay trap properly, fairly and
honestly and that the accused was falsely arrested and
involved in the case.
29. Second I.O.PW9 Ms. Asha Badola, Inspector CBI
deposed that during the year 1995 she was posted as
Inspector CBI/ACB, Delhi. After the trap the present case
was entrusted to her for further investigation. During further
investigation, she prepared a transcript of the Audio
cassette which was played in presence of complainant and
independent witness. The memo in this respect Ex.PW5/D
was prepared which bears her signature at Point „C‟.
30. In the cross-examination, she states that he did not
recollect the date of filing the charge-sheet. After seeing the
record, she could say that charge-sheet was filed on
20.03.1997 and date of trap was 28.10.1995. It is incorrect
that there was a delay of about 2 years in filing the charge-
sheet, because the CBI authorities felt that it was not a fit
case for filing the charge-sheet.
31. The statement of accused was recorded under Section
313 Cr.P.C. Some relevant questions and answers are
reproduced as under:-
"Ques 9: It is further in evidence against you that
on reaching there you came to complainant and
witness where you inquired about witness R.K.
Aggarwal from Satbir Singh and complainant Satbir
Singh introduced the witness as a friend of his
brother-in-law. What have you to say?
Ans: It is incorrect.
Ques 10: It is further in evidence against you that
complainant Satbir Singh asked you how the money
was to be paid on which you took him toward the
juice corner and you and complainant were followed
by shadow witness Sh.R.K. Aggarwal. Where have
you to say?
Ans: It is incorrect.
Ques 11: It is further in evidence against you that
on reaching the juice corner, you directed the
complainant to make the payment to juice vendor
and you further directed the juice vendor to wrap the
money in a paper and keep with him. When have you
to say?
Ans: It is incorrect.
Ques 12: It is further in evidence against you that
you further told the juice vendor that the young man
sitting on scooter will come to you and he should give
the money to him. What have you to say?
Ans: It is incorrect.
Ques 13: It is further in evidence against you that
as per your direction complainant Satbir Singh gave
the tainted money to the juice vendor who wrapped
that amount in a paper and kept the same in cash
box and as soon as complainant and you left the
shop, the shadow witness gave the pre-appointed
signal to the trap team. What have you to say?
Ans: It is incorrect.
Ques 14: It is further in evidence against you that
on receipt of signal the trap team reached there and
apprehended you, your son and juice vendor. What
have you to say?
Ans: I was falsely apprehended.
Ques 20: Why this case against you?
Ans: This is a false case. I have been falsely
implicated in the present case.
Ques 21: Why have the PWs deposed against you?
Ans: Complainant is an accomplice in eye of law.
Punch witnesses have deposed due to fear of
departmental action. TLO and IO are interested
witnesses. Others are formal in nature.
Ques 22: Will you lead any evidence in your
defence?
Ans: Yes.
Ques 23: Have you to say anything else?
Ans: I am innocent. I neither demanded nor
accepted any money from the complainant.
Satbir Singh is an employee of M/s. Pragati
Construction wherein the notices have been issued
by DDA to the company for recovery of arrears of
ground rent. DDA had issued warrant against the
Director/partner Sh. D.R. Gupta (PW4). This fact has
been admitted by the complainant in his statement.
He is an accomplice as far as the trap by the CBI who
also laid against DDA officials namely Kartar Singh
and J.C. Verma and that case is pending before this
Hon‟ble Court. Kartar Singh was my predecessor and
that case was also based on the same allegations
leveled against those DDA officials as leveled against
me. Therefore, the complainant is in habit of making
complaints against the officials who are entrusted
with the matters of recovery of ground rent.
Moreover my sanction is invalid as my sanctioning
authority is Vice Chairman. I was falsely implicated in
the present case".
32. The accused got examined three defence witnesses.
33. The learned senior counsel appearing for the appellant
has argued:
(i) the conversation between accused and PW-2 Satbir
has not proved in accordance with law, therefore it is
not admissible. The law on this issue has already been
settled. In JT 2011(3) SC 429, (2011) 4 SCC 143 titled
as Nilesh Dinker Paradkar vs. State of Maharashtra,
wherein the Supreme Court has opined as under:-
"In our opinion, the veracity of the voice
identification would not improve merely because
a recording has been made after receiving
official approval. The crucial identification was of
the voice of the person talking on the tape. We
are of the considered opinion that the high court
has committed a grave error in confirming the
conviction of the appellant as recorded by the
trial court only on the evidence of voice
identification."
(ii) Audio tele-tape was neither sent to FSL nor the sample
of voice of the appellant was taken for matching the
voice.
(iii) PW-4 Sh.D.R.Gupta has not produced on record, the
order/stay order, nor he produced any proceedings of
the Court, therefore, this fact has not been proved.
Even till date has not produced any Court order.
(iv) PW-5 Sh.R.K.Aggarwal shadow witness has stated the
place of meeting was the hotel behind Vikas Minar
Building. He has stated the wash came out, whereas,
the tainted money was wrapped in paper/newspaper,
therefore, there was no occasion to touch the tainted
amount therefore, the story of wash is false.
(v) Only PW-6 Udai Kumar (Punch witness) talks about the
meeting point at tea stall and further he states that
some noise heard at the tea stall and scuffling took
place, whereas, no other witness support this
deposition of PW-6. This witness did not admit that
the seal was handed over to him.
(vi) Inspector R.V.S.Loh Mod, S.R.Singh and S.K.Bhati were
not examined and SI Sh.Prasad not cited even as
witness, therefore, not examined who could have
proved the trap and recovery of tainted money.
(vii) PW-8 R.S.Tokas has deposed that the complainant and
the accused talked about 10-15 minutes at Nagar Das
Tea stall, therefore, proceeded to ITO flyover. No
other witness supports this deposition of this witness.
Therefore, he has brought a new version in the case.
(viii) Shambhu Ram, the accomplice of PW-2 who wrote the
complaint as deposed by PW-2 has not been cited as
witness. Without examining this witness the story of
the prosecution of demanding bribe is not proved.
Because, as stated by PW-2 Satbir, he remained
outside the office of Rawal and Shambhu went and
met the appellant, to whom the appellant had
demanded the alleged money.
(ix) As per the prosecution story the appellant had
demanded the money to implement the order/stay
order as mentioned in the complaint Ex.PW-2/A, by the
complainant Satbir Singh PW-2, but no such order has
ever been produced or proved. Therefore, story of the
prosecution is false.
(x) The money was recovered from Lalu Sahu (Juice
vender). Neither, he was made accused nor produced
as witness, who would have proved the money taken
on behalf of the accused.
(xi) Four places of meeting are emerged, namely, tea stall,
Juice wala, hotel and towards flyover, therefore, no
consistency in deposition of witnesses.
(xii) In pre-trap proceedings the PW-2 was not instructed to
hand over money to Juice wala, whereas as per the
prosecution story the tainted money was given to Juice
wala.
(xiii) The transcript prepared on 14.12.1995 after obtaining
cassettes from malkhana, the law on this point reads
as under:-
The law on the admissibility of tape recorded
versions is well settled. In Ram Singh and Ors. Vs. Col
Ram Singh: AIR 1986SC3 Fazal Ali, J with whom
Sabyasachi Mukharji, J agreed, laid down the
following tests for determining the admissibility of
tape recorded version:
1. "The voice of the speaker must be identified by the
maker of the other persons recognizing the voice.
Where maker is unable to identify the voice, strict
proof will be required to determine whether or not it
was the voice of the alleged speaker.
2. The accuracy of the tape-recorded version must be
proved by the maker of the record by satisfactory
evidence: direct or circumstantial.
3. Possibility of tampering with or erasure of any part
of, the tape-recorded statement must be totally
excluded .
4. The tape-recorded statement must be relevant.
5. The recorded cassette must be sealed and must be
kept in safe or official custody.
6. The voice of the particular speaker must be clearly
audible and must not be last or distorted by other
sounds or disturbances."
In Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra
and Ors.: AIR 1975SC 1788, a three-Judge Bench while
considering the question whether the appellant was guilty of
promoting feeling of enmity between two sections of the society,
examined the question of admissibility of tape recorded speech,
referred to the judgment in R.v. Maqsud Ali (1965) 2 All ER 464
and observed:
"We think that the High Court was quite right in
holding that the tape-records of speeches were
"documents", as defined by Section 3 of the
Evidence Act, which stood on no different footing
than photographs, and that they were admissible in
evidence on satisfying the following conditions:
(a) The voice of the person alleged to be speaking
must by duly identified by the maker of the record or
by others who know it.
(b) Accuracy of what was actually recorded had to
be proved by the maker of record and satisfactory
evidence, direct or circumstantial, had to be there so
as to rule out possibilities of tampering with the
record.
(c) The subject-matter recorded had to be
shown to be relevant according to rules of relevancy
found in the Evidence Act."
(xiii) According to prosecution the money was wrapped in
newspaper, whereas newspaper is not part of the judicial
file.
(xiv) As alleged that on 15.10.1995 the appellant came to
the office of Pragati Construction Company at Nehru Place,
whereas, being Sunday on that date the Nehru Place was
closed, therefore, this story of the prosecution also false.
(xv) The complainant PW-2 Satbir does not support the
prosecution story.
34. Learned standing counsel Mr. A.K. Gautam for CBI has
argued and rebutted the points raised by the learned
counsel for the appellant. Phenolphthalein Test was not
conducted on the appellant, because he did not touch the
tainted notes used in the trap. The scooter used in the
offence was seized vide memo Ex.PW-2/E and the same was
proved by PW-8 R.S.Tokas I.O. and TLO and Yashpal Rawal,
son of the appellant was also taken into custody along with
Lalu Sahu (Juice Vendor). The CBI after investigation, has
put both the aforesaid persons in Column No. 2 of the
chargesheet.
35. Further he submits that as regards the date of
15.10.1995 the appellant came to the office of Pragati
Construction Company at Nehru Place no doubt there was
Sunday on that date. The learned counsel has not based
any specific question on this issue from any one of the
witness, therefore raising this issue at this stage does not
serve any purpose.
36. Further, he submits that the complainant has proved
the complaint, though in the cross-examination he has
totally taken the U-Turn from what he has deposed in the
examination-in-chief. The court should not believe on the
complainant PW2 Satbir what he had stated in the cross-
examination. The complainant himself has approached the
CBI office on his own and on their complaint, the CBI officer
came into motion. The tainted money was recovered from
one Mr. Lalu Sahu (Juice Vendor), which, he has received the
amount on behalf of the appellant. Therefore, the recovery
was also fully proved. The appellant not only demanded
money when PW2 Satbir and Shambu Ram visited the office
of the appellant. He again demanded the bribe amount on
telephone on 20.10.1995, the aforesaid conversations were
recorded by a parallel telephone and the audio tele-tape
was also prepared. Therefore, it proves that the appellant
had demanded gratification from Shambu Ram PW2 Satbir
as well.
37. I have heard both the learned counsels, and gone
through the evidence on record. PW-4 Mr.D.R.Gupta states
in his cross-examination that it is correct that there was a
recovery of ground rent for ì. 77,44,900/- against his fault.
However, that recovery was stopped by the orders of the
Court. The said order against the recovery of stay order
was from the Court of Civil Judge at Tis Hazari Court. He did
not hand over the copy of the said stay order to CBI during
the investigation. He did not remember, therefore, he did
not admit or deny in relation to said ground rent they
contested litigation up to Supreme Court of India. Further,
he states that the complainant Satbir Singh did not tell him
that there were warrants of arrest against him in relation to
recovery proceedings of the ground rents. It is correct to
suggest that he had come to know that on 19.10.1995, and
20.10.1995, his warrants could not be executed because of
lack of identification. Regarding Shambhu Ram, he states
that there was one Shambhu Ram, employee in M/s Pragati
Construction Company. He did not know, therefore, he did
not admit or deny that the said Shambhu Ram was a retired
CBI official. He also states that it is correct that in relation
to impugned recovery of ground rent premises officials of
office of Assistant Collector-I trapped on the complaint of
said Satbir Singh. Again said that aforesaid rent was not in
relation to impugned recovery but it was a different
recovery of ground rent. However, again recovery of said
ground rent was in relation to ground rent of 6, Devika
Tower, Nehru Place, New Delhi. On 20.10.1995, Satbir
informed him about demand of bribe on telephone. He
denied to the suggestion that on 20.101995, he did not
attend the office or that he was absconding to avoid the
warrant of arrest.
38. PW-5 R.K.Aggarwal (shadow witness) in his cross-
examination states that it is correct that he was also
shadow witness in a case of CBI vs. Narender Singh SI, as he
appeared as a witness in that case in the Court. He was a
witness in four other cases of trap organized by CBI but he
denied to the suggestion that he was stock witness of the
CBI.
39. PW-6 Udai Kumar (punch witness) has deposed in
examination-in-chief that on 26.10.1995, he was directed by
their vigilance officer to visit CBI office on 27.10.1995.
Further he stated that Mr. R.K.Aggarwal (PW-5) was also
with him.
40. As per prosecution story, the complainant had made a
complaint dated 27.10.1995 and he along with one Shambu
Ram visited the CBI office on 27.10.1995 itself. Therefore,
the question does not arise that the PW5 and PW6 were
directed by the vigilance officer to visit CBI office, the day
prior to the complaint. This version in his deposition falsify
the story of the prosecution that the complainant PW2
Satbir made complaint on 27.10.1995 and visited the office
of CBI on the said date. Further, PW6 has deposed when he
was recalled for examination, the meeting point was fixed at
Tea Stall of Nagar Dass as he heard from the audio cassette
conversation. Whereas, PW5 Sh. R.K. Aggarwal deposed
that the time of meeting was fixed in a hotel behind the
Vikas Minar, ITO, New Delhi. They sat on the chair lying
outside the hotel. In cross-examination, he has stated that
he did not hear the conversation on the parallel telephone.
He reached near the Tea Stall at Vikas MInar and he took his
position near the scooter stand. At about 2/2:30 PM he
heard a noise at tea stall and found that all the CBI official
were assembled there and N.S.Rawal was present there with
his son. There was some scuffling on the direction of trap
laying officer, he recovered tainted amount wrapped in a
newspaper from the cash box of owner of juice shop. The
hand washes of juice shop owner was taken which turned
into pink colour similarly, washes of newspaper was also
taken which also turned pink. He further states he was not
told by any one of the trap team member on whose
direction, the tainted money was handed over to juice wala
by Satbir Singh (PW-2).
41. Further, PW-6 Udai Kumar has stated that the tainted
notes of ` 5000/- were kept in front side shirt pocket of the
complainant. Whereas, PW5 has stated that the tainted GC
notes were kept in front pocket of pant of Satbir.
42. PW8 Sh. R.S. Tokas, first IO and Trap Laying Officer
has said in cross-examination that he did not enquire from
the complainant, if he has brought the required money from
the trap.
43. In my opinion, keeping in view the aforesaid discussion
and depositions, the prosecution has failed to establish the
demand that the appellant has demanded money and
accepted the demanded money. There is no consistency in
the statements of the witnesses and inter-se deposition of
the witnesses. Every witness is parroting differently,
therefore, there is no change in the circumstances. The
appellant has succeeded to prove that there is no sufficient
material on record to convict him in the present case.
44. Learned trial judge has not properly appreciated the
evidence which is in favour of the appellant. He has gone
wrong to reach at the opinion, therefore, and convicted the
appellant.
45. I, therefore, set aside the judgment dated 27.10.1994
passed by the trial judge and also set aside the order dated
29.10.2004 by which the appellant was convicted.
46. The appellant is hereby acquitted from all the charges
made against him. I direct the Deputy Commissioner
concerned to personally look into the investigation and
make extra efforts to maintain the trust of the aggrieved on
the police system.
47. The personal bond of the appellant and the surety
bond of the sureties stand cancelled.
48. Accordingly, the appeal is allowed.
49. I refrain to impose any cost.
SURESH KAIT, J
JULY 04, 2011
neelam/mr
