Jagdish Chandra Makhija vs State (Cbi)
2011 Latest Caselaw 3190 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+             Criminal Appeal No. 349/02


                             Judgment reserved on : 12.05.2011
%                                 Judgment delivered on : 08.07.2011


JAGDISH CHANDRA MAKHIJA                              .... APPELLANT
Through : Mr. I.U. Khan with Mr. Vikas Arora and Mr. Aman Khan,
          Advocates for the appellant along with appellant in
          person.

VERSUS

STATE (CBI)                                          .... RESPONDENT
Through :     Mr. Narender Maan, Special Public Prosecutor for the
              State/CBI


CORAM:
HON‟BLE MR. JUSTICE M.L.MEHTA

1.     Whether reporters of Local papers                      YES
       be allowed to see the judgment?
2.     To be referred to the reporter or not?                 YES
3.     Whether the judgment should be                         YES
       reported in the Digest?


M.L. MEHTA, J.

1. This appeal is directed against the Judgment dated 05.04.2002

and Order dated 08.04.2002, whereby the appellant/accused

was convicted by learned Special Judge under Sections 7 and

13 (1)(d) of the Prevention of Corruption Act, 1988 (hereinafter,

referred to as „the Act‟) and was sentenced to undergo rigorous

imprisonment of five years for each offence. He was also

ordered to pay a fine of `5,000/- on each count. In case of

default of payment of fine, he was to undergo further

imprisonment of six months each. Both the sentences were

ordered to run concurrently.

2. The prosecution case as unfolded at the trial is that the

accused Jagdish Chandra Makhija was working as Assistant

Director in Delhi Zone, Enforcement Directorate, office at Lok

Nayak Bhawan, New Delhi. He was allegedly handling the case

registered under FERA against Rattan Kumar Modi

(Complainant) (PW2). A search was carried out at the

residence of the complainant on 14.09.1988 by some officers of

Directorate of Enforcement who were joined midway in the

search by Mr. A.P.Pandey, Deputy Director and the accused

(Assistant Director). Allegedly, there was no recovery of

incriminating documents/articles from the residence of the

complainant who was arrested without assigning any reason or

justification by the Enforcement Officers, and thereafter

remanded to judicial custody for 14 days to be bailed out by the

court on 26.09.1988.

3. The complainant PW2 lodged a complaint with SP CBI on

17.10.1988 (vide Ex. PW2/A). In the complaint, the complainant

alleged that on 14.10.1988, the accused contacted him over

telephone at his residence and desired to meet him at the

junction of Shahjahan Road and Humayun Road, near Modern

School at 6:15pm on 15.10.1988 assuring him that he would

settle his case. The complainant went to the pre-appointed

place and picked the accused in his car and took him to his

residence. The complainant alleged that he could smell that the

accused was likely to ask for bribe for settling the case and

therefore, he arranged for tape recording the conversation

without the notice of the accused. The complainant submitted

the duly tape recorded conversation between him and the

accused to the SP, CBI, in which the accused had allegedly

demanded `50,000/-, out of which `25,000/- was to be paid on

17.10.88, the date on which the complaint was lodged with CBI.

The accused allegedly expressed desire to be picked up by the

complainant at 7:00pm from Humayun Road to the residence of

the complainant, where he was to receive the first installment

of the bribe amount. The accused told the complainant that this

bribe amount would include the share of Mr. A P Pandey also,

and that rest of the bribe amount is to be paid after the case

under FERA against him is closed.

4. On the basis of this complaint, FIR Ex. PW7/B came to be

registered against the accused on 17.10.88. The case was

entrusted to Mr.B.N.Jha, DSP (PW7) who, on the same day

constituted a trap party. Two independent witnesses

S.C.Khanna/PW4 and P.K.Bhandari/PW5 were arranged and they

were introduced to the complainant, his complaint shown to

them and they verified the contents of the same by questioning

the complainant. The complainant PW2 produced 250 GC notes

of `100/- denomination each (Ex.P1 to Ex.P.250) whose

numbers were noted down in the handing over memo Ex.

PW2/B. Pre-raid proceedings involving spraying of

phenolphthalein powder on the currency notes and explaining

the witnesses about the characteristics of the powder by giving

practical demonstration about the procedure, was conducted.

The tainted money was handed over to the complainant with

the directions to hand it over to the accused on specific

demand. A pocket micro cassette recorder was also arranged

with two micro cassettes which were checked to ensure that

they were blank and duly initialed. The cassette recorder with

cassettes was then handed over to complainant for purpose of

recording the conversation. Both independent witnesses PW4

and PW5 were directed to remain as close as possible to see

the transaction and also to overhear the conversation between

the complainant and the accused. The complainant was asked

to give signal by calling his wife by name, after the transaction

was over.

5. The trap party left the CBI office at 6.10PM and reached the

residence of the complainant. The complainant was asked to go

to Humanyun Road to bring the accused. The accused repeated

the demand of bribe at the house of the complainant which

conversation was recorded with the help of the micro cassette

recorder. The money was given to the accused who accepted

the same and put `10,000/- each in the left and right pocket of

his trousers and the balance of `5,000/- in the left lower pocket

of the safari suit. At this stage, the complainant gave the pre-

appointed signal on which the other members of the raiding

party entered the room and challenged the accused with

having accepted the bribe money.

6. The prosecution case is that on being challenged, the accused

got perplexed and both his wrists were caught hold off by CBI

officials. Tainted notes were recovered from the pockets of the

accused. Washes of both hands of the accused were taken into

separate solutions of Sodium Carbonate which turned pink.

Washes of pockets of trousers and safari suit were also taken,

which also turned the solution of Sodium Carbonate pink.

Personal search of the complainant was taken and micro

cassette that had been used for recording was taken out and

was played in the presence of witnesses and the demand and

acceptance of bribe was confirmed.

7. After completion of investigation, charge-sheet was filed in the

court of learned Special Judge. The appellant did not plead

guilty to the charges framed against him under Section 7 and

Section 13 (1) (d) of the Act. The prosecution examined as

many as 9 witnesses. After the prosecution evidence, the

statement of accused was recorded under Section 313 Cr.P.C.

wherein he admitted that he was working as Assistant Director

in the Enforcement Department during the relevant period. He

denied the evidence of having demanded bribe from the

complainant at any stage. While admitting that on 17th

October, 1988, the complainant met him at Humayun Road, he

stated that when he was waiting for a bus for Hauz Khas to visit

an ailing relative, the complainant offered to drop him at his

destination, but instead, he took him to his residence, despite

his unwillingness to go there. He denied that he demanded a

bribe from the complainant at his residence. He stated that the

complainant had thrusted money forcibly into his pocket and

while he was taking out the same, he was apprehended. He

pleaded ignorance about the recovery proceedings stating that

he was so terrified that he did not know about the said

proceedings. He disputed accuracy of tape recorded

conversation as per micro cassettes (Ex. PW2/X1 and PW2/X2)

and other cassettes (Ex.PW2/X3 to Ex.PW2/X6) and also the

transcripts Ex.PW4/B and Ex.PW4/C. He alleged these cassettes

to be false and fabricated and not containing his voice. He also

denied about the evidence of search of his office in his

presence or seizure of records including the file Ex. PW9/B. He

claimed to be innocent and falsely implicated in this case under

pressure of CBI. He alleged that the complainant had a grudge

against him on account of his arrest and search in a FERA case.

He also alleged that this case was manipulated to take avenge

and stall the investigation of FERA case. The accused chose

not to lead any evidence in his defense.

8. Learned defense counsel has assailed the impugned judgment

and order as bad in law and based on conjectures and

surmises. At the outset, he contends that the trial court has

failed to appreciate that the sanction order was invalid and it

should not have been acted upon in view of the fact that it was

recorded in a mechanical manner without proper application of

mind. He contends that the complainant had a very strong

motive to get the accused involved in some false case, as the

complainant was having a grudge again the accused for

carrying out the search in his premises and putting him in jail

for about 12-13 days and that the prosecution has not adduced

any reliable evidence to make out a case against the accused.

He contends that the appellant/accused was not the

Investigating Officer of the case against the complainant and it

was not within the power of the appellant/accused to drop the

case against the complainant and that there is no corroboration

of statement of complainant that the accused had actually

gone to the house of the complainant. He mentions about

certain discrepancies in the testimonies of the witnesses and

contends that they were not of minor nature, but were very

material and relevant for determining the guilt or innocence of

the accused. Referring to tape allegedly recorded by the

complainant, he contends that had the tape recorder cassette

been functioning at the relevant time, it would have contained

the pre-appointed signal "Manju Yeh Sab Utha Lo". There is

nothing in the cassette to show demand by the accused or

anything said after the accused was challenged by the CBI

officials. Even the words uttered allegedly by the complainant

at the time of passing of bribe "Ye Pachchis Hazar Rupay Hain"

have not been recorded in the cassette. There is also no

evidence to prove the presence of accused at the residence of

the complainant. He urges that considering all this, it was not

proper for the ld. Trial court to have placed any reliance on the

testimony of witnesses.

9. As against this, learned standing counsel for CBI submits that

there is no impropriety or illegality in the sanction of

prosecution of the appellant granted by the complainant

authority. He submits that PW-1 being the Under Secretary was

competent and authorized to authenticate the sanction order

made by the Minister Incharge on behalf of the President of

India. In support of his submission he refers to Government of

India (Transaction of Business) Rules, 1961 and Government of

India (Allocation of Business ) Rules, 1961. The learned

standing counsel also submits that though the complainant was

involved in a FERA case, the accused did demand bribe money

from him for doing him a favour in the said case. He refers to

different portions of the statement of complainant (PW-2)

where he has stated specifically about the demand of bribe

made by the appellant. He also submits that though PW-4 and

PW-5 were declared hostile on certain aspects, but they did

corroborate PW-1 and also support the prosecution case on all

material aspects of the case.

10. There cannot be any dispute with regard to the submission of

learned defense counsel that sanction of prosecution is not an

automatic formality and that it cannot be accorded in a

mechanical manner without application of mind by the

sanctioning authority. In the present case though PW-1 B.K.

Arora, posted as Under Secretary in the department of defence

had stated that he had accorded the sanction to prosecute the

accused vide Ex.PW1/A after going through the papers, but, in

his cross examination he stated that the sanction Ex. PW1/A

was in the name of President of India and that he being the

Under Secretary of the department was competent to sign Ex.

PW1/A. In answer to a question in the cross examination, he

stated that he could not say as to when the file in question was

put up before the concerned Minister and how long the file

remained with him. He stated that the file was sent to the

Minister concerned through a normal procedure. He could not

tell as to what papers were received by him and as to whether

any draft sanction was issued or not. On going through the

sanction order Ex.PW1/A, it can be seen that this sanction was

by the order and in the name of President of India. This

sanction Ex. PW1/A mentioned about the details of allegations

against the appellant including various documents which came

to be perused by the sanctioning authority. After mentioning

the details of the allegations and the documents perused, this

document reads like this:

"3. And whereas the said acts constitute offence punishable under section 7 and 13(2) r/w Sec. 13(1)(d) of the Prevention of Corruption Act, 1988 (Act 49 of 1988).

4. And whereas the Central Govt. after fully and carefully examining the material before it in regard to the said allegations and circumstances of the case, considers that the said Shri J.C. Makhija should be prosecuted in a court of law for the said offences."

11. The learned prosecutor referred to Government of India

(Transaction of Business) Rules, 1961 and the Government of

India (Allocation of Business) Rules, 1961 framed under Article

77(3) of Constitution of India to contend that the Finance

Minister in the name of President of India is the authority

competent and empowered to grant sanction for the

prosecution of the appellant, who was the Assistant Director in

the Enforcement Department during the relevant time. He

particularly referred to Rule 3 of the Government of India

(Transaction of Business) Rules, 1961 and Claus 3(3) of

Government of India (Allocation of Business Rules)1961. These

read as under:

The Government of India (Transaction of Business) Rules, 1961 -

Rule 3:-

"Disposal of Business by Ministries - Subject to the provisions of these Rules in regard to consultation with other departments and submission of cases to the Prime Minister, the Cabinet and its Committees and the President, all, business allotted to a department under the Government of India (Allocation of Business) Rules, 1961, shall be disposed of by, or under the general or special directions of, the Minister- in-charge."

The Government of India (Allocation of Business) Rules, 1961 -

"Clause 3(3). Distribution of Subjects - Where sanction for the prosecution of any person for any office is required to be accorded - (1) If he is a government servant, by the Department which is the Cadre Controlling authority for the service of which he is a member, and in any other case, by the Department in which he was working at the time of commission of the alleged offence. (2) If he is a public servant other than a Government servant, appointed by the Central Government, by the Department administratively concerned with the organization in which he was working at the time of commission of the alleged offence; and (3) In any other case, by the Department which administers the Act under which the alleged offence is committed."

12. A bare reading of the above provisions would make it clear that

business of Government of India will be transacted in respect of

Ministries by or under the general or special directions of

Minister-in-charge and the sanction for prosecution of

government servant could be accorded by the department

administratively concerned with the organization in which the

employee was working at the time of commission of alleged

offence. In this case, the file relating to the grant of sanction

was sent to the Minister concerned during the normal

procedure. The deposition given by PW-1 to the effect that he

had accorded sanction though appears to be, misplaced, but

reading his statement as a whole and the sanction, it would be

seen that it was accorded by the sanctioning authority after

going through the papers which were placed before it and the

sanction was accorded in the name of President of India. In fact

Ex. PW1/A is the document of authentication of sanction which

was accorded by the sanctioning authority. As per the

Authentication (Orders and other Instruments) Rules, 1958

framed under Article 77(2) of the Constitution of India, PW-2

being the Under Secretary of the defence department was

empowered to issue, sign and authenticate the order of

sanction granted by the sanctioning authority i.e. Finance

Minster in the name of the President. Section 2 of the aforesaid

Rules of 1958 reads as under:

"Orders and other instruments made and executed in the name of the President shall be authenticated - (1) by the signature of the Secretary, Special Secretary, Additional Secretary, Joint Secretary, Deputy Secretary, Under Secretary or Assistant Secretary to the Government of India."

13. Reading of the above provision would make it clear that Under

Secretary is empowered to authenticate the orders passed by

the competent authority, namely, the Minister-in-charge in the

name of the President.

14. The conclusion comes up to be that when an order was passed

in terms of Clause 3 (3) of the Government of India (Allocation

of Business) Rules by the Minister-in-charge in the name of the

President, as per Rule 2 of the Authentication (Orders and other

Instruments) Rules, 1958, the Under Secretary is authorized to

authenticate the said order.

15. The reliance placed on the judgment of Mansukhlal Vithaldas

Chauhan Vs. State of Gujarat, (1997) 7 SCC 622 by the learned

defense counsel is misplaced inasmuch as in the said case

sanction was given by the authority under the direction of the

High Court and therefore, it was held that the sanction was

invalid because there was no application of mind by the

authority which had accorded sanction mechanically in the

obedience of the mandamus issued by the High Court. In a

recent case State of Madhya Pradesh Vs. Jiyalal, AIR 2010 SC

1451, the Supreme Court while dealing with the question of

validity of sanction of a case under Section 7 & 13 (1) (d) of the

P.C. Act held as under:

"7. In the case before us, even if it were to be accepted that there has been an „error omission or irregularity‟ in the passing of the sanction order, the learned Single Judge of the High Court has not made a finding which shows that a serious failure of justice had been caused to the Respondent. In the absence of such a finding it was not correct for the High Court to set aside the conviction and sentence given by the Special Judge.

8. It was also not justified for the learned Single Judge to hold that the District Magistrate who had passed the sanction order should have been subsequently examined as a witness by the prosecution in order to prove the same. The sanction order was clearly passed in discharge of routine official functions and hence there is a presumption that the same was done in a bona fide manner. It was of course open to the Respondent to question the genuineness or validity of the sanction order before the Special Judge but there was no requirement for the District Magistrate to be examined as a witness by the prosecution."

16. More recently, this court in the case of Darshan Lal v. State (CBI),

Crl. A No. 73/2001 decided on: 31.07.2009, where a similar ground

was taken by the accused has observed as under:

"21. The court is not to go into the technicalities of the sanctioning order. Justice cannot be at the beck and call of technical infirmities. The Court is only bound to see that the sanctioning authority after the careful consideration of the

material that is brought forth it, has passed an order that shows application of mind."

"25. In my considered opinion, it would be incorrect to conclude that simply because the sanctioning order Ex. PW-3/A is a virtual reproduction of the draft sanction letter Ex. DW1/DA, the same would be deemed to have been passed without any application of mind. There is no necessary concomitant corollary between the two."

17. The observations of this court in the case of Gurubachan Singh v.

State, 1970 Cr.L.J 674 are worth noting. In that case it was held

that the intention of the Legislature in providing for a sanction

Under Section 6 of the Act for the offence under the Act is to

afford a reasonable safeguard for the public servant in the

discharge of his official duties. The section does not intend that a

public servant who is guilty of the particular offence mentioned in

that Section should escape the consequences of his criminal act

by raising the technical plea of invalidity of the sanction. The

Section safeguards the innocent but does not shield the guilty

person.

18. In view of this even if there was any error/irregularity in the

sanction order, there is nothing to suggest failure of justice or

prejudice caused to the appellant who in fact in his statement

under Section 313 Cr.P.C. also did not deny about the sanction

accorded vide Ex. PW1/A. In fact, there was no serious challenge

made by the appellant with regard to sanction before the Special

Judge. For all these reasons, I do not see any impropriety or

irregularity in the sanction of prosecution of the appellant.

19. The learned defense counsel contended about the veracity of the

tape recorded cassette stating that it did not contain any demand

made by the accused and also words "Manju Yeh Sab Utha Lo."

and the appellant saying "galti ho gayi hai, maaf kar do". In this

regard reference is made to the statement of investigating officer

(PW-8) who stated that he prepared the transcription of the audio

recording Ex. PW4/B and PW4/C of the cassettes Ex.PW2/X1 to

PW2/X6 in the presence of the complainant and punch witnesses

and also deposed about the manner of preparation of transcription

in their presence. He categorically denied the suggestion that the

cassettes have been tampered with by way of deletion or edition.

PW-4 and PW-5 fully corroborate him in this regard.

20. Similar submissions were made by the learned defense counsel

before the learned Special Judge who had eloquently dealt with

them in following manner:

"89. Learned Sr.PP, on the other hand, pointed out that in the conversation that has been taken note of in deposition recorded on 19.02.2000 from page 21 right up to the page 28 (in the statement of PW-2) there is reference of the accused indicating his desire for payment to be made to him, he initially avoiding mentioning a specific figure, even though PW-2 kept on

insisting that he must mention his price. He also pointed out the conversation forming part of cassette Ex. PW2/X5, in particular the portion noticed on page 1 to 3 in continued deposition of PW2 (recorded on 9.3.2000) showed that after expressing initial reluctance to mention the amount he was expecting, the accused would specifically state that his idea was (in the region of) "50" (thousand). The fact that the said figure of "50" was actually meant to be 50,000/- is clarified in the conversation that followed immediately thereafter, where PW2 would mention the figure to be `50,000/-. While raising anxiety if that would also cover (the desire of) "Nanday Sahib", in answer to which the accused replied in affirmative. The learned prosecutor then referred to the conversation forming part of cassette Ex. PW2/X6, as noticed during continued deposition of PW-2 (recorded on 14.3.2000) in particular the portion appearing at page no. 8 of the said statement, wherein PW-2 pointedly asked the accused as to how much money he should arrange on Monday and on finding when the response of the accused was feeble, low and inaudible PW2 himself suggested that he would arrange 50,000/- to which the accused consented by uttering words „THIK HAI."

90. In above facts and circumstances, it cannot be said that the pre complaint audio recordings did not mention the demand, or the amount of bribe desired, or the installment that was to be paid in advance.

91. It is true, as pointed out by ld. defence counsel, that these cassettes indicate blank runs at several places and that at various places, the voice was not fully audible. In my considered view, the blank runs (of hardly a second or two) at various places are only natural. The conversation that was taking place was in normal routine environs. PW-2 would naturally be anxious to put the accused at ease so as to engage him in a lengthy conversation, while entertaining him with eatables or drinks, also so as to make him lower his guard. He could not afford to make undue hurry in efforts to persuade the accused to come out with his price

at the very first meeting. The tape recorded conversation contained in pre-complaint audio cassette corroborates his claim in the complaint that the very desire of the accused to meet him had given rise to doubts that accused was expecting some gratification. The blank runs in the cassettes or inaudibility in some portions, are thus natural in the contest of environment in which the recording was made. They do not necessarily mean that the cassettes have been subjected to tampering or had been edited.

92. The defence counsel then directed his attack to the last cassette Ex. PW3/X3, which was used in the trap. The counsel pointed out that the evidence of PW2 indicates that he had started recording the conversation from the moment the accused had been picked by him from near Modern School at Humayun Road, after the trap had been laid at his residence, and that once he with accused had reached the house, PW-2 stole time so as to change the side of the cassette while going into the house from the rear side on the pretext that the main door was to be opened from inside. It is admitted case of the prosecution that side A of cassette Ex. PW3/X3 represents the conversation recorded during journey from Modern School, Humayun Road up to the residence of the PW-2, while side B contained recording of conversation after arrival at the residence of PW2 from the time he was led in.

94. The arguments that has been advanced is that the recording in the two sides of the said audio cassette was not of the same length and, therefore, possibility cannot be rules out that he cassette had been tampered with by way of editing. I do not understand how this conclusion can be drawn merely from the length of the recording found on two sides of the same cassette. The cassette that was used was micro cassette. PW-2 had been handed over this cassette by the TLO as part of the arrangement for the trap. He apparently would not know the length of conversation that once side could contain. He apparently would not be in a position to anticipate as to how long the

conversation at his residence would take. He was anxious to switch over to a new side of the cassette once he had reached the residence, so that he would not have the need to go elsewhere, mid way the conversation, for changing the side. Since the recording mechanism was concealed in the planter in the drawing room, he could not have even ascertained if the side of the cassette with which he had commenced recording the conversation from near Modern School was complete and could contain no more recording.

95. In above facts and circumstances, the length of conversation that came to be recorded during the journey from Modern School to the residence of PW-2 does not necessarily represent the length of the tape on that side. Since the time of arrival at his residence could not after all have coincided with the length of the tape, that part of the conversation cannot become a yard stick for assumptions that recording on the other side was unduly short as is being argued.

97. In my considered opinion, there is no such deficiency as has been pointed out. The witness has only mentioned that money had been desired. He has not stated that the accused had uttered some words to demand the said payment to be made. Apparently, the gestures that must have accompanied the said desire being expressed could not have come on record of the audio cassette. The submission that the fact that audio recording does not reflect the signal that had been used, nor any utterance on the part of TLO in the nature of the challenging the accused with he having demanded the bribe also should create doubts on the part of authenticity of tape recording, does not impress me.

98. It is true that in normal course, the tape recording should have contained the said signal being uttered, but since all the witnesses to the trap are consistent in their statements that the said signal had been given, and since the TLO has corroborated the statement of PW2 even to

the extent that he had seen the accused pocketing the bribe money, it appears the recording was brought to an end, simultaneously with the signal being given and TLO proceeding to another the scene. In these circumstances, the non recording of the signal or what was said thereafter, amongst others by the TLO, is of no consequence.

99. In my considered view, the evidence of tape recorded conversation deserves to be accepted. The voices of the speakers have been duly identified. There is no reason to doubt the accuracy of the tape recorded statements. There is no material to infer possibility of any tampering with or eraser of any part of the tape recorded conversation. After the pre complaint cassettes had been handed over and they had been heard, they were duly sealed and kept in official cassette. The cassette that was used in the trap was also similarly handled. The voices recorded are clearly audible and not lost or disturbed by other sounds or disturbances at all material places."

21. It was lastly submitted by learned defence counsel that in any

case it was Section 7 which was attracted and not Section 13 (1)

(d) of the Act, and so the appellant deserves acquittal of the

offence under Section 13 (1) (d) of the Act. In view of the

discussion as above, it stands proved that there was sufficient

evidence on record that the appellant demanded `50,000/- and

obtained for himself, being a public servant, `25,000/- from the

complainant for doing him a favour in the FERA case pending

against him. That being so, the ingredients of Section 13(1)(d) of

the Act are also attracted, as rightly held by the learned Special

Judge.

22. On perusal of material on record and also the impugned judgment

it comes out to be an admitted case that the office and residence

of the complainant was raided by the department of Enforcement

and that he remained in judicial custody from 14th September to

26th September and that the accused was also one of the officers

supervising the said FERA case against the complainant. It is also

admitted by the complainant that because of raid and his arrest in

the FERA case he was annoyed with FERA department. However,

he had denied that because of the said arrest he got the accused

falsely implicated in this case. It will be essential to scrutinize his

testimony a little later in the background of the fact of his carrying

a grudge against the accused. It is also an admitted case that the

accused was present at Humayun Road bus stop and

accompanied the complainant in his car to his residence and that

subsequently at the complainant‟s residence he was apprehended

with the tainted money. The defense of the accused as taken that

he was standing at the bus stop for going to Hauz Khas to see his

ailing relative, that the complainant offered to drop him at his

destination but instead, he took him to his residence, despite his

unwillingness to go there and that he forcibly thrust money into

his pocket, will also be dealt with a little later. However, it is

noted that no evidence has been led by the accused in support of

his defense that he was to visit some ailing relative at Hauz Khas

on 17th August, 1988.

23. The learned Special Judge has scrutinized the entire evidence of

the complainant with great caution and has recorded that his

testimony finds corroboration from the testimony of PW-4, PW-5

and PW-7 on all material aspects of the prosecution case. To see

as to whether the learned Special Judge has appropriately

analyzed evidence of the prosecution, I have chosen to re-

appreciate the testimony of PW-2/complainant in the background

of facts of his being involved in a raid case at the hands of

accused and other officers of the department. It will be seen that

complainant (PW-2) stated that the appellant himself gave a

telephone call in connection with said FERA case. Though he had

stated at one place that he did not remember the date on which

the appellant contacted him for the first time, but, he stated that

initial contact was made on telephone at his residence at about 3-

4 pm. He did not meet the appellant personally on the said date,

but met him after three days of the said telephone call. He further

clarified by stating that by the third day of telephone call he

meant after the gap of one day of the date of telephone call. He

clarified that telephone call was received on 14th August 1988 and

he met the appellant on 16th August, 1988. He went on to state

that aforesaid meeting took place near Modern School, Humayun

Road at about 7 pm and that he remained with the appellant for

about two hours. During this period they went to his residence in

his car. He had conversation with the appellant while travelling in

the car as well as at his residence. He stated that on the receipt

of telephone call, he got a feeling that the appellant was

expecting something from him and therefore, on 16th August,

1988, before meeting the appellant, he had made arrangement

for recording of conversation. It was on 16th August, 1988 when

he brought the appellant to his house, that he made actual

demand of bribe of `50,000/-, out of which `25,000/- was to be

paid on the following day i.e. 17th October, 1988 and it was to be

collected by the accused himself sometime at about 7 pm from his

residence, for which the accused was to be picked up from near

Modern School, Humayun Road and the balance amount of

`25,000/- was to be paid after the closure of FERA case. A general

suggestion was put to him that audio cassettes Ex. PW2/X1 and

Ex.PW2/X5 are fabricated documents and do not contain the voice

of the appellant, which he denied categorically. He maintained

that the audio recording contained the voice of the appellant. He

identified the voices as his own voice and that of the appellant.

24. PW-2 further deposed that since he did not want to pay bribe, he

lodged a complaint (Ex.PW2/A) under his signatures at about

10.30 am on 17.10.1988 and also gave tape recorded

conversation to CBI. On receipt of complaint, FIR Ex. PW7/B was

registered and preparation was made for trap by Trap Laying

Officer (TLO) PW-7. Suggestions were put to him in his cross

examination that the appellant did not demand any bribe from

him or that with a view to falsely implicate him, he had created a

story of demand of `50,000/- and the payment of first installment

on 17.10.88 and the second installment on the closure of the case.

These suggestions were also denied categorically. He also

deposed about the pre-trap proceeding done by TLO in the

association of two eye witnesses PW-4 S.C. Khana and PW-5 V.K.

Bansal, his producing `25,000/- for the trap and noting down the

numbers of those currency notes in the memo Ex.PW2/B.

25. He further said that when as per pre-arranged programme he

went to fetch the appellant from the pre-appointed place at

Humayun Road, he carried a tape recorder loaded with one blank

audio cassette in his pocket. He stated that at his residence also

he had kept one audio recorder concealed in a planter in a room

where he had talks with the appellant. During the intervening

period of his opening door from the backside, he switched on the

micro recorder, took out the audio cassette from the recorder and

changed the side of the cassette. He said that he had

conversation with the appellant for about two and a half hours and

all the other members of the raiding party were at their pre-

arranged positions. He had kept tainted money in his brief-case

lying in the other room. When the accused desired that the

money should be paid to him, he went to the adjoining room and

brought the briefcase and handed over `25,000/- to him. Before

proceeding further with the testimony of PW-2 it may be noted

that the learned defense counsel had submitted that this witness

did not state about the demand of bribe money and that „desire‟

cannot amount to „demand‟ and so there was no demand made by

the appellant on that day at the residence of the complainant. In

this regard, it may be noted that the complainant immediately

thereafter had stated that by the word „desire‟ he meant that the

appellant made the demand of bribe money. Proceeding further,

the complainant stated that the appellant kept `10,000/- each in

the left and right pocket of his pant and `5,000/- in the left pocket

of his safarisuit. At that stage, he gave pre-arranged signal by

calling his wife "Manju Yeh Sab Utha Lo." He stated that accused

accepted the tainted currency notes with his hands and

immediately after his giving signal, the raiding team led by PW-7

entered the room and challenged and apprehended the appellant.

PW-4 Mr. S.C. Khanna checked his pockets and found the tainted

notes. The numbers of those notes were tallied with the numbers

already noted. Both the hands and left pocket of safari suit of the

appellant were separately dipped into chemical solutions in

different glasses which turned red. He testified that the currency

notes Ex P1 to P250 as the same which were given to the

appellant as tainted money and recovered from him.

26. The complainant stood lengthy cross examination conducted by

the learned defense counsel. He maintained that the appellant

himself contacted him on telephone in connection with FERA case

by making a telephone call on 14.08.88 and that he had met him

at Humayun Road on 16th August, 1988 and that thereafter they

came to his residence where the appellant actually made a

demand of `50,000/- from him to be paid in two installments of

`25,000/- each. In his lengthy cross-examination nothing could be

elicited to doubt his testimony. He has fully supported the

prosecution case. The mere fact that he was annoyed with the

FERA department was itself not enough to discard his testimony.

In this regard, reference can be made to the case of State of UP

vs. G.K.Ghose, AIR 1984 SC 1453 and Rajender Kumar Sood Vs.

State of Punjab, 1983 Cr.L.J. 1338. On the other hand keeping in

view the entire facts and circumstances, particularly, the facts of

accused accompanying complainant in his car and going to his

residence and later on found in possession of the tainted money,

point towards guilt of the accused who was the concerned officer

responsible for the raid and arrest of the complainant in the FERA

case. It was all the more reason for the accused to take

advantage of the fact situation to ask for bribe money for doing

favour to the complainant.

27. Though the testimony of the complainant PW-2 itself is enough to

bring home the guilt of accused, but it is seen that his testimony

finds corroboration on all material aspects from the testimonies of

eye witnesses PW-4 and PW-5 and also TLO PW-7.

28. Though, PW-4 and PW-5 were declared hostile on certain aspects,

their evidence cannot be discarded as such. Reference can be

made to Syed Akbar v State of Karnataka AIR 1979 SC 1848 in this

regard. On reading their testimonies as a whole it is seen that

they have corroborated PW-2 and supported the prosecution case.

Both PW-4 and PW-5 did confirm that they had been requested by

the CBI for the aforesaid raid and reached the CBI office on 17th

October, 1988. They confirmed that they were introduced to the

complainant and the complaint was shown to them and the

complainant had told the facts pertaining to the case. Both

corroborated PW-2 and also PW-7 by deposing that complainant

had produced currency notes worth `25,000/- (Ex.P1 to P250) in

the denominations of `100/- each. They affirmed that the

numbers of the notes were noted down and the notes were

treated with chemical powder. They testified that demonstration

was arranged to show the reaction of chemical powder with which

the currency notes were treated. Both PW-4 and PW-5 have also

corroborated the statement of PW-2 with regard to his testimony

regarding identifying currency notes and his playing micro

cassette and preparation of its copy, preparation of wash bottles

(Ex.P253 to P257), preparation of recovery memo (Ex.PW2/C) etc.

29. PW-4 also corroborated the statements of PW-2 and PW-7

testifying that two blank cassettes were brought and played

before them and these cassettes did not contain any recording

and that these were signed by him and PW-5. He also stated that

one of these cassettes was loaded into an audio cassette recorder

and given to the complainant for recording the conversation with

the appellant and that the second cassette was also given to the

complainant. He also corroborated the statement of PW-2 and

PW-7 by stating that he and PW-5 had been directed to watch the

transaction of passing of money and hear the conversation

between the appellant and the complainant and further that the

complainant was asked to give signal to CBI team in the event of

completion of transaction by calling his wife to remove the tea

cups etc. He also testified that handing over memo Ex.PW2/B was

prepared there and signed by him. PW-4 also confirmed that it

was he who had searched and recovered the tainted money from

the pockets of the pant and safari suit as mentioned by the

complainant PW-2. PW-4 also confirmed that the cassettes were

played before the members of the trap party in the pre-trap

proceedings. It is noted that a suggestion was put to him that the

complainant had thrust the bribe money in the pockets of the

appellant and that the appellant threw the same after taking out

the same from his pockets. He denied the suggestion as

incorrect.

30. PW-5 also confirmed that audio cassette recorder with the loaded

cassette was given to the complainant for recording conversation

while he and PW-4 had been asked to hear and watch the

transaction. He also confirmed the statements of PW-2 and PW-7

that the signal that was to be given by the complainant was

"Manju Yeh Sab Utha Lo." He also corroborated other witnesses‟

statements regarding pre-trap proceedings recorded in handing

over memo Ex. PW2/B which also bore his signatures.

31. This witness corroborated the statement of complainant/PW-2

substantially by stating that the appellant and the complainant

were involved in a conversation for about 50 minutes. Though

initially he had stated that he could not overhear the

conversation, but then deposed that he overheard the

complainant pleading with the appellant that after the transaction,

the appellant should ensure that he was not harassed and it was

after this that the complainant had gone to the adjoining room

and brought the briefcase to the drawing room. He also confirmed

complainant giving signal by using the words mentioned above. A

suggestion was also given to PW-5 that when he entered the

drawing room he had seen the complainant trying to put the

money in the pockets of the appellant. This was also categorically

denied by him. Similar suggestion was also given to PW-7 that the

complainant forcibly put the money in the pocket of the appellant

who was apprehended while taking out and trying to throw the

same. This witness also denied the suggestion to be incorrect.

32. In view of above there is sufficient evidence against the Appellant

warranting conviction under Section 7 and 13(1)(d) of the Act. The

prosecution has proved its case beyond reasonable doubt. A

presumption also arose against the accused/appellant under

Section 20 of the Act that the money was accepted as a motive or

reward under Section 7. This presumption has not been rebutted

by the Appellant/accused by any cogent or reliable means. I do

not find any infirmity in the findings of conviction under Section 7

and 13(1)(d) of the Act recorded by the learned Special Judge. The

appeal is dismissed and the impugned judgment is hereby

sustained.

33. With regard to quantum of sentence, the learned defence counsel

prays for lenient view stating the incident to be above 22 years

old and the accused being aged over 75 years. Though the

Supreme Court in the case of State of A.P. Vs. V. Vasudeva Rao,

(2004) 9 SCC 319, categorically held that the protracted trial is no

ground to mitigate the gravity of offence, but, keeping in view the

fact that occurrence had taken place 14 years back, the minimum

sentence of one year as prescribed was imposed. Keeping in view

the entire factual background as discussed hereinbefore and age

of the appellant, I am of the view that ends of justice would be

met by sentencing the appellant to Rigorous Imprisonment (RI) for

a period of one year for each offence i.e. under Section 7 and

13(1)(d) of the Act. Thus, while maintaining the conviction of the

appellant under Section 7 and 13(1) (d) of the Act as recorded by

the Special Judge, the order on sentence is modified in the sense

that one year RI is awarded for each offence under Section 7 and

13(1) (d) read with Section 13(2) of the Act. The rest of the order

on sentence shall remain maintained. Both the substantive

sentences shall run concurrently. The period of imprisonment, if

any, undergone would be set off. The accused shall surrender and

be taken into custody to undergo imprisonment as awarded. The

appeal is disposed of accordingly.

M.L.MEHTA (JUDGE)

JULY 08, 2011 „awanish‟