State vs S.P.Tyagi & Ors.
2014 Latest Caselaw 2497 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment reserved on :12.05.2014
                                Judgment delivered on : 16.05.2014

                          CRL.A. 200/2006

STATE                                             ......Appellant
                     Through:   Mr.P.K.Sharma, Standing Counsel for
                                the CBI along with Mr.Rakesh
                                K.Sharma, Ms.Renu Malik and Ms.Soni
                                Mehra, Advocates.
                     Versus

S.P.TYAGI & ORS.                                   .......Respondents
               Through:         Mr.Rajesh Harnail and Mr.V.K.Tandon,
                                Advocates for R-1.
                                Mr.Ajay Burman, Advocate for R-2.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment dated

18.11.2002 wherein the appellant S.P.Tyagi and Sunil Kumar

Choudhary had been acquitted of the charges leveled against them under

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

Prevention of Corruption Act (hereinafter referred to as the "PC Act")

and Section 120 B of the Indian Penal Code (IPC).

2 Record shows that on the complaint (Ex.PW-2/B) of Ajay Kumar

(PW-2) a pre-raid party was organized in which the shadow witness

Dinesh Parkash (PW-5) and the recovery witness Rakesh Kumar

(PW-7) were also asked to join the raid. Investigation was conducted by

Inspector N.V.Krishnan (PW-9). This was pursuant to the complaint

(Ex.PW-2/B) in which it had been alleged by the complainant that

S.P.Tyagi was demanding a sum of Rs.1,00,000/- to give him a „no

objection certification‟ for getting his factory licence from the MCD for

his factory at M/s Kaithal Rubber and General Mills India at A-120,

Okhla Phase-II, New Delhi. An advance Rs.20,000/- had been agreed to

be paid by the complainant to S.P.Tyagi on 12.7.2001; since the

complainant was unwilling to pay this amount he lodged this complaint

with the CBI.

3 In the pre-raid proceedings 40 currency notes in the denomination

of Rs.500/- which had been brought by PW-2 had been coated with

phenolphthalein powder and a live demonstration was given in the

presence of PW-5 and PW-7 by the investigating officer (PW-9)

demonstrating that these notes which were already coated with

phenolphthalein powder when dipped in a colourless solution would

turn pink. It was explained to PW-2, PW-5 and PW-7 that this money

was to be handed over by the complainant to the accused only on his

demand and at that point of time the shadow witness (PW-5) had to give

the appointed signal. In the raid proceedings, the accused was caught red

handed with the money which was recovered from his right hand pant

pocket. His right hand wash and his right pant pocket were sent to the

CFSL for examination and the FSL vide its report (dated 27.9.2001) had

tested these washes positive for phenolphthalein.

4 The trap proceedings had also been tape recorded and specimen

voice samples of the accused which had been taken vide memo Ex.PW-

5/D were also sent to the FSL for an expert opinion along with the

questioned conversation and the report of the CFSL again confirmed the

fact that the specimen voices of the accused i.e. of S.P.Tyagi and Sunil

Kumar Choudhary matched the questioned voices.

5 The other documentary evidence i.e. the handing over memo

Ex.PW-3/C and recovery memo Ex.PW-2/D were also relied upon by

the prosecution to establish its case.

6 PW-2 the complainant, PW-5 the shadow witness and PW-7 the

recovery witness, however, did not support the version of the

prosecution. They had been declared hostile and had been permitted to

be cross-examined by the learned public prosecutor. In their cross-

examination they denied the factum of the proceedings i.e. either of pre-

trap or the post trap in the manner in which they had been depicted by

the prosecution. Statements of all the aforenoted public witnesses

including the complaint being that this sum of Rs.20,000/- was

advanced payment for the contract work which had to be done by the

contractor at the site before the NOC could be granted and since the

contractor who had to receive this advance amount was not present at

that time PW-2 persuaded S.P.Tyagi to receive this money on his behalf

but S.P.Tyagi refused to accept the money; the money had fallen on the

floor at which point of time the recovery had been effected.

7 On the basis of this evidence, the Special Judge had thought it a

case of acquittal holding that the prosecution has failed to prove its case.

8      This judgment is the subject matter of appeal.

9      On behalf of the CBI arguments have been addressed in detail. It

is pointed out that although admittedly PW-2,PW-5 and PW-7 have

been declared partly hostile yet they have not denied the factum of the

incident having occurred; PW-2 has admitted that he had handed over

GC notes in the sum of Rs.20,000/- which had been coated with

phenolphthalein powder. Submission of the learned counsel for the CBI

being that if PW-2 was not involved in the incident there could have

been no occasion for him to hand over this money to the CBI officer;

the specimen voice sample of the accused had been taken. It has been

pointed out that the specimen voice samples of the accused were taken

vide memo Ex.PW-5/D and the report of the CFSL exhibited through

PW-3 also establishes that the questioned voices and the specimen

voices were of the same person i.e. the accused persons showing that a

conversation had taken place between a landline number by S.P.Tyagi to

Sunil Kumar Choudhary on his mobile establishing the role of Sunil

Kumar Choudhary at whose behest and on whose behalf this entire

incident had taken place. The impugned judgment acquitting accused

persons in this background has committed an illegality. The principle of

res ipsa loquitur should have weighed in the mind of the Special Judge;

this doctrine has been ignored. Reliance has been placed upon a

judgment of the Apex Court in (2001) 1 SCC 691 M.Narsinga Rao Vs.

State of A.P. to support a submission that even where the witnesses are

declared hostile there being sufficient documentary evidence available

with the Special Judge; the presumption under Section 20 of the PC Act

should have been invoked by the Court below and in this background

the conviction of the appellant is called for.

10 Arguments have been refuted by learned counsels appearing for

both the respondents separately. It is pointed out that on no count does

the impugned judgment call for any interference. It is pointed out that

apart from the fact that PW-2,PW-5 and PW-7 have totally negated the

version set up by the prosecution, even otherwise it has come in the

evidence of PW-2 that this sum of Rs.20,000/- had been taken by him as

advance money for the contract work to be carried out at his factory

before the NOC could be given to him and this is clear from his version

on oath in Court. It is pointed out that the mobile no. 9811112447 relied

upon by the prosecution as the phone of Sunil Kumar Choudhary has

not been established as the documentary evidence annexed by the

prosecution shows this phone was in the name of Sandeep Deswal and

there is no connection of Sandeep Deswal with Sunil Kumar

Choudhary.

11 Arguments have been heard. Record has been perused.

12 PW-2 was the complainant and the star witness of the

prosecution. He had admitted that he had given a complaint Ex.PW-2/B

which was addressed to the Superintendant of Police (CBI). In this

document it has been stated that for the purpose of issuance of an NOC

from the Fire Department S.P.Tyagi had made a demand from him of

Rs.1,00,000/-; as he did not wish to pay this huge amount he had made

the aforenoted complaint. This complaint has been signed by PW-2 at

point A. On oath in Court PW-2 had admitted that he had signed

Ex.PW-2/A at point A. He has further deposed that although S.P.Tyagi

had inspected his factory premises, he had told him that some initial

work was required to be done which could be got done through a

contractor who had estimated the expenditure to be Rs.1,00,000/- or so

and a sum of Rs.20,000/25,000/- was required to be paid in advance.

This proposal had been accepted by PW-2 and accordingly he had asked

the contractor to come to the factory on 12.07.2001. PW-2 had made

comparative checks with other factory owners and had found that this

amount of Rs.20,000/- was excessive he had accordingly gone to the

CBI office to explain this. Ex.PW-2/B was written by him in English

and was signed by him at point A but PW-2 does not understand the

english language although he can write it; this document was written by

him at the dictation of the CBI officer. PW-2 further admitted that raid

party was organized and he had handed over 40 GC notes to the CBI

officer which were coated with phenolphthalein powder; further version

of PW-2 being that this money was to he handed over to S.P.Tyagi

which he had asked S.P.Tyagi to take as an advance for the contractor as

the contractor had not come to his factory on 12.7.2001. Further

deposition of PW-2 being that even on his insistence PW-2 did not

accept this advance money as a result of which it had fallen on to the

floor from the table and when the CBI officers entered the room (on

signal having been given by PW-5) they found the money lying on the

floor. He denied the suggestion that this money was recovered from the

pocket of the accused.

13 PW-5 was the shadow witness. He has also toed the line of PW-2

and has deposed that although he had joined the pre-raid party of the

CBI for which Rs.20,000/- had been handed over by the complainant to

a CBI officer but on 12.07.2001 at the time of raid the person who was

present there and who had allegedly accepted this sum of money from

the complainant could not be identified by PW-5. PW-5 had further

deposed that he had heard someone stating that the contractor was likely

to come at the factory premises of PW-2 for the work which was

required to be done by him and this sum of Rs.20,000/- was to be paid

to him but he did not come. Further deposition of PW-5 being that in

spite of insistence by PW-2 to Tyagi Saheb to take this advance amount

Tyagi Saheb did not take the money as a result of which the money fell

down on the floor from the table; when PW-5 gave the appointed signal

Tyagi Saheb had gone out of the room and he had been brought inside

the room from outside. He was evasive on the issue as to whether any

hand wash or pocket wash of the accused S.P.Tyagi was taken in his

presence. He was also evasive on the point as to whether any voice

specimen of S.P.Tyagi and Sunil Kumar Choudhary had been taken in

his presence which was documented vide memo Ex.PW-5/D.

14 Rakesh Kumar (PW-7) was the recovery witness. He has also

deposed on the same lines as PW-2 and PW-5. PW-7 being outside the

room and in the adjoining room from where the incident had taken place

was even otherwise not in a position to know exactly what has

transpired. He has on oath deposed that there was a conversation with

the complainant and S.P.Tyagi but he (PW-7) being in other room did

not know details of the conversation. When the appointed signal was

given and the raiding party had come into the room S.P.Tyagi was

outside the room then he was brought in to the room; PW-7 noticed

some currency notes lying on the floor.

15 The investigating officer N.V.Krishanan was examined as PW-9;

after him the investigation was handed over to Inspector H.K.Lal

(PW-10). PW-3 had proved the CFSL report wherein specimen voice

samples of the accused (Ex.PW-5/D) and the questioned sample were

examined and the report (Ex.PW-3/A) established that these voices

tallied.

16 In this context the documentary evidence (Ex.PW-5/D) has been

perused. Public witnesses (PW-5 and PW-7) had given evasive answers

and have in fact denied the suggestion that these specimens voice

samples of the accused persons were taken in their presence. The CFSL

report (Ex.PW3/A) relates to the conversation which had been tape

recorded from a landline no.6840764 installed in the premises of the

complainant from where accused S.P.Tyagi had allegedly made a call on

the mobile number (9811112447) of Sunil Kumar Choudhary (co-

accused). Record shows that this mobile number was in the name of

Sudeep Deswal. This is clear from the document filed by the

prosecution itself. On a specific query put to the learned counsel for the

CBI in this Court he has no answer as to how Sudeep Deswal is

connected to Sunil Kumar Choudhary. Learned counsel for the CBI has

further drawn attention of this Court to a search memo (Ex.PW-8/B)

evidencing the search of the house of Sunil Kumar Choudhary wherein

in the search and seizure effected on 12.7.2001, 2 items had been seized.

The second item was a Panasonic mobile having number 9811112447.

Submission of the CBI being that this mobile number even if it was in

the name of Sudeep Deswal was recovered from the house of Sunil

Choudhary.

17 A perusal of Ex.PW-8/B shows that this second item i.e. the

seizure of this mobile bearing no. 9811112447 has been written just

below the first item in a spacing which is different from the rest of the

document substantiating the submission of the learned defence counsel

that this item no.2 which relates to the recovery of this mobile has been

added later on. This has been fortified by the next line which follows

and which states that only one item has been seized vide this memo;

meaning thereby that there was no item no.2 (mobile phone) and thus

this item no.2 had been added later on to evidence the recovery of the

mobile phone belonging to Sandeep Deswal from the house search of

Sunil Choudhary.

18 There is yet another reason for discarding Ex.PW-3/A. This is for

the reason that recovery memo Ex.PW-2/D shows that after the

conversation had taken place between S.P.Tyagi and Sunil Choudhary

on the aforenoted phones the cassettes had been seized and sealed in the

presence of independent witnesses on 12.7.2001 itself. Further

documentary evidence shows that the transcripts of this conversation

had been prepared on 13.7.2001 which is evident from Ex.PW-5/C.

When these cassettes were unsealed, when the transcripts were prepared

and when the cassettes were resealed has not been answered by the

prosecution?

19 In this background, the trial judge holding that there is no

sufficient evidence with the prosecution to nail the accused has

committed no fault.

20 The presumption under Section 20 of the P.C. Act is rebuttable

presumption; it arises in favour of the prosecution only when the

prosecution has able to lay down the first threshold i.e. proof of a prima

facie case. This has not been done in the instance case. The judgment

of M. Narsinga relied upon heavily by the learned counsel for the

appellant does not come to his aid as the facts of said case are distinct.

In that case the two courts below i.e. the Special Judge and the Bench of

the High Court had both found the accused persons guilty. The

Supreme Court had not interfered with the said judgment holding that

there are two consistent findings of fact by the Courts below; in that

case the version of the accused was that money had forcibly been put

into his pant pocket and he had not accepted the money. Facts of this

case are clearly different. The defence of the appellant all along has

been that a sum of Rs.20,000/- had been handed over by the complainant

to S.P.Tyagi as a part of the advance which had to be paid to the

contractor but since the contractor did not reach the factory on

12.7.2001 he insisted S.P.Tyagi to receive this amount; since S.P.Tyagi

refused to accept this amount the money had fallen on to the floor. This

has also been the consistent versions of PW-5 and PW-7. The role of

Sunil Kumar Choudhary had surfaced in the disclosure statement of

S.P.Tyagi. The said disclosure statement was never proved. It is not a

part of the record. That apart the conversation of S.P.Tyagi and Sunil

Kumar Choudhary which was sought to be proved through Ex.PW-3/A

has also been discarded in view of the discussion supra.

21 Thus on no count does the impugned judgment call for any

interference. Appeal is without any merit. Dismissed.

INDERMEET KAUR, J

MAY 16, 2014 ndn