Delhi High Court

Kuldeep Singh Dhankar vs Central Bureau Of Investigation on 26 April, 2022

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Reserved on:       April 01, 2022
                                       Pronounced on:     April 26, 2022
     (i) +     CRL.A.1195/2012
         KULDEEP SINGH DHANKAR                    ..... Appellant
                      Through: Mr.Dhruv Gautam &
                               Ms. Shachi Mittal, Advocates

                           Versus

         CENTRAL BUREAU OF INVESTIGATION          .....Respondent
                     Through: Mr. Mridul Jain, Special Public
                               Prosecutor for CBI


     (ii) +    CRL.A.1229/2012
     SANJAY GUPTA                                         ..... Appellant
                           Through:    Mr.Dhruv Gautam &
                                       Ms. Shachi Mittal, Advocates

                           Versus

     CBI                                                  ..... Respondent
                           Through:    Mr. Mridul Jain, Special Public
                                       Prosecutor for CBI

         CORAM:
         HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                           JUDGMENT

1. In the above captioned two appeals, challenge is to the impugned

judgment dated 13.09.2012 and order on sentence dated 29.09.2012, vide

which appellant- Kuldeep Singh Dhankar has been held guilty for the

offence under Section 13(2) read with Section 13(1) (d) of the Prevention

of Corruption Act, 1988 (henceforth referred to as the "PC Act") read

with Section 120-B IPC and directed to undergo sentence of rigorous

imprisonment for a period of three years and to pay fine of Rs.1,00,000/-;

and in default of payment of fine, he has been directed to undergo simple

imprisonment of six months.

2. In addition, the impugned judgment and order on sentence also

holds guilty appellant-Sanjay Gupta for the offence under Section 13(2)

read with Section 13(1) (d) of the PC Act read with Section 120B IPC

and he has been directed to undergo rigorous imprisonment for a period

of six months and to pay fine of Rs.10,000/-; and in default of payment

of fine, he has been directed to undergo simple imprisonment of one

month.

3. With the consent of learned counsel representing both the sides,

theses appeals have been heard together and are being disposed of by this

common judgment.

4. Appellant- Kuldeep Singh Dhankar was working as Food and

Supplies Officer, Civil Supplies, Enforcement Branch, who has

purportedly called up the complainant- Subhash Chand Sharma alleging

him that he was adulterating light diesel oil with kerosene oil and

demanded Rs.10.00 Lacs threatening that he would shut down his shop

and according to complainant, the matter was settled at a bribe of Rs.3.50

Lacs. On the complaint of complainant dated 17.01.2005, RC bearing

No. 05(A)/2005/CBI/ACB/New Delhi was registered on 18.05.2005 and

a trap was laid. Appellant-Sanjay Gupta was apprehended accepting

bribe of Rs.2.00 Lac and thereafter, appellant - Kuldeep Singh Dhankar

was also arrested. After completion of the investigation, charge sheet was

filed before the learned trial court on 07.11.2005 and charge was framed

for the offence under Sections 7, 13(2) r/w Section 13(1) (d) of the PC

Act read with Section 120 IPC against both the appellants/accused

persons.

5. Prosecution had got examined fourteen witnesses comprising of

Prem Raj Kaushik (PW-1), Officer in Food and Supplies Department, in

support of documents seized from the department; C.L. Bansal (PW-2) &

Dr. Rajinder Singh (PW-4), Senior Scientific Officer and Principal

Scientific Officers, CFSL; Mr. S. Raghunathan (PW-3), Chief Secretary,

Delhi Government to prove sanction order; Gulshan Arora (PW-5),

Nodal Officer, HUTCH and Umesh Kalara (PW-7) Nodal Officer Idea

Cellular Limited, to prove call detail records; Laxmi Narain (PW-6)

waterman in the department where appellant was working; Complainant-

Subhash Chand Sharma (PW-9) and Pancham Singh (PW-8), who was

working for complainant and B.B. Bhatia (PW-10) an independent

witness. Besides, official witness, Mridula Shukla (PW-12) Deputy SP,

who had investigated, laid the trap and collected the documents and filed

the charge sheet; Inspector Alok Kumar (PW-13), who had arrested the

appellant from his office and Inspector C.K. Sharma (PW-14), Trap

Laying Officer were also got examined by the prosecution.

Appellants/accused in their statements recorded under Section 313

Cr.P.C before the learned trial court had claimed that they were innocent

and have been falsely implicated in this case. Appellant- Kuldeep Singh

Dhankar had sought to examine witnesses in his defence, whereas

appellant- Sanjay Gupta did not lead any evidence. Trial court had relied

upon evidence of afore-referred prosecution witnesses to convict and

sentence the appellants as noted herein above.

6. Challenging the guilt and conviction of the appellants by the

learned trial court, learned counsel appearing on behalf of appellants

submitted that the trial court has grossly erred in not considering the

inherent inconsistencies and contradictions in the story of prosecution

and testimonies of witnesses and benefit of doubt ought to be given to the

appellants.

7. Learned counsel for appellants emphatically submitted that the

complainant on earlier occasions also contravened the provisions of

Essential Commodities Act and had no license to sell petroleum

products in Delhi and multiples case are pending against him. It was

brought to the notice of this Court that in one of the case being FIR No.

348/2003, registered at police station Sarita Vihar, Delhi, appellant-

Kuldeep Singh Dhankar is a witness against the complainant and

therefore, complainant is trying to settle the scores with the appellants by

implicating him in a false case.

8. It was submitted by learned counsel for appellants that the

testimony of Complainant (PW-9) read with the testimony of B.B. Bhatia

(PW-10), an independent witness, creates a substantial doubt to the

sequence of events as laid down by the prosecution. Learned counsel

next submitted that the claim of prosecution that the transcript of Spot

Conversation between appellant and complainant (Ex. PW 9/D) made on

17.01.2005, deserves to be rejected as the complainant in his testimony

has specifically stated that he was not carrying digital recorder on

17.01.2005 and also, Deputy SP Mridula Sharma (PW-12), to whom the

investigation was entrusted, in her testimony has admitted that there is no

mention of transcript in the Complaint Verification cum Seizure Memo

(Ex/PW-9/C). Dr. Rajinder Singh Principal Scientific Officer, CFSL

(PW-4), also in his testimony stated that the voice specimen marked as S-

2, Ex. PW10/C was of co-accused and not that of the appellant- Kuldeep

Singh Dhankar and such fundamental defects are contradictory to the

story of prosecution. Also, trial court has dismissed the testimony of ---

(PW-6), an independent witness which gapes holes in the prosecution

story as well as testimony of B.B. Bhatia (PW-10), another independent

witness, who has denied the events of 17.01.2005 i.e. pre-trap

proceedings laid down by the prosecution, which is bad in law and

amounts to abuse of process of law.

9. Leaned counsel for appellants submitted that the phone number

alleged to have been used by the appellant- Kuldeep Singh Dhankar was

registered in the name of Sandeep Gupta, who was not examined before

the learned trial court. Further submitted that the learned trial court has

failed to consider that the original digital recorder and the unsealed

cassette were never produced in evidence before the Court and the data

was transferred to two cassettes, one of which when played in Court had

noises, disturbances and inaudible voices, however, the CFSL Report

(Ex.PW4/A) does not indicate so. Learned counsel submitted that in the

pre-trap conversation of 17.01.05, name of one Pradeep Chaudhary,

partner of complainant and co-accused in FIR No. 348/2003, registered at

Sarita Vihar, also cropped up, however, no investigation was carried out

against him nor he was cited as a witness by the prosecution and this fact,

has been completely ignored by the learned trial court in the impugned

judgment.

10. Learned counsel for appellants also submitted that the charge of

Section 120 IPC levelled against the appellants is unfounded, as

prosecution has failed to lead any cogent evidence to suggest existence of

criminal conspiracy between the appellant and the co-accused, Mr.

Sanjay Gupta. To submit that the existence of a criminal conspiracy,

there must be direct or circumstantial evidence which clearly depicts an

agreement between two or more persons to commit an offence, reliance

was placed upon decision in Kehar Singh & Anr. Vs. State (Delhi

Administration) 1988 (3) SCC 609 and V.C. Shiikla Vs. State 1980 (2)

SCC 665.

11. Learned counsel for appellants placed reliance upon decision in

Esher Singh Vs. State of A.P. 2004 (11) SCC 585J to submit that under

Section 120 of the IPC, to prove criminal conspiracy on the basis of

evidence which is purely circumstantial in nature, the circumstances,

when taken together on their face value, should indicate the meeting of

the minds between conspirators for the intended object of committing an

illegal act, which is absent in the present case to suggest existence of a

criminal conspiracy between the appellant.

12. Reliance was also placed upon decision in Suraj Mal Vs. State

(Delhi Administration), AIR 1979 1408 to suggest that if a witness

makes two inconsistent statements in the evidence, the testimony of such

witness becomes unreliable and unworthy. In the present case, only the

limited portion of statement of (PW-9), which strengthens the case of

prosecution, has been taken into consideration by the learned trial court

and by selecting certain pieces of evidence disregarding others

completely, the learned trial court has abused process of law. Lastly,

learned counsel for appellants submitted that presumption of guilt can

only be raised when certain foundational facts have been brought on

record or proved by the prosecution and unless proven guilt, an accused

is innocent. However, in the present case, prosecution has not been able

to prove guilt of the appellants beyond reasonable doubt and there were

several contradictions and discrepancies existing in the statement of

prosecution witness, however, trial court did not extend the benefit of

doubt to the appellants. Reliance was placed upon decisions in Babu Vs.

State of Kerela, 2010 (5) Law Reports on Crimes 320 (SC) and Kashi

Ram &Ors. Vs. State of M.P., 2002 (1) SCC 71 to submit so.

13. On the other hand, learned counsel Special Public Prosecutor

appearing on behalf of respondent /CBI submitted that based upon the

testimony of witnesses, prosecution has been able to successfully prove

its case. Learned Special Public Prosecutor submitted that Complainant-

Subhash Cander (PW-9) in his complainant has stated that demand was

made by appellant-Kuldeep Singh Dhankar and in case of non-payment,

he was threatened and the said fact has been proved on the basis of

complaint as well as conversation transcript (Ex.PW 9/D), which took

place in the office of appellant/accused Kuldeep Singh Dhankar. Further,

prosecution has also been able to prove that appellant/co-accused- Sanjay

Gupta had contacted Complainant (PW-9) to collect bribe amount on

behalf of appellant- Kuldeep Singh Dhankar.

14. Learned Special Public Prosecutor next submitted that Joginder

Singh (PW-11), an independent witness, has supported the case of

prosecution by submitting that he had recovered the bribe money from

the hands of appellant/accused- Sanjay Gupta. It was further submitted

that prosecution has been able to prove the demand, conspiracy between

the accused, acceptance of illegal gratification and recovery from the

accused persons in the present case.

15. To submit that "When it is proved that there was voluntary and

conscious acceptance of the money, there is no further burden cast on the

prosecution to prove by direct evidence, the demand or motive. It has

only to be deduced from the facts and circumstances obtained in the

particular case", reliance was placed upon decision in B. Noha Vs. State

of Kerla SC MANU/SC/8635/2006. It was thus submitted that contention

of appellants for the prosecution to establish a demand for illegal

gratification for sustaining the allegation of an offence under Section

13(l)(d) of the PC Act, as in force prior to 26.07.2018, is without merit.

16. Further, reliance was also placed upon decision in M.O.

Shamsudhin Vs. State of Kerala MANU/SC/0677/1995 to submit that

corroboration of trap witness with that of the complainant is not a rule, as

has been claimed by the appellants.

17. Learned Special Public Prosecutor submitted that corroborating

evidence can also be circumstantial evidence and no general rule can be

laid down with respect to quantum of evidence corroborating the

testimony of a trap witness, which would depend upon its own facts and

circumstances. In the present case, complainant has fully supported the

case of the prosecution and by corroborating the evidence of witnesses

and other evidence with the circumstantial evidence, it is proved beyond

doubt that there was demand of bribe by appellant- Kuldeep Singh

Dhankar and appellant- Sanjay Gupta had accepted the same on his

behalf. Lastly, it was submitted that the impugned judgment and order on

sentence suffers from no illegality and are well merited and do not call

for any interference by this Court.

18. Learned counsel representing both the sides were heard at length

and decisions cited as well as other material placed on record has been

carefully perused. Upon perusal of impugned judgment, I find that the

learned trial court has elaboratively taken into consideration the

testimonies of prosecution witnesses.

19. As per impugned judgment, Mr. Prem Raj Kaushik (PW-1), who

was working as Food and Supplies Officer had handed over documents

giving details of Food and Supplies Officer; charge of enforcement given

by Mr. Ramesh Tiwari, Additional Commissioner Cum Secretary

(Administration) and transfer/ posting order of appellant- Kuldeep Singh

Dankar and; notifications under Essential Commodities Act. This witness

has also stated that he has no personal knowledge as to whether

complainant or Asian Petro Chemical are suppliers of light diesel or they

were holding valid license as contemplated in the notification. However,

this witness has not been able to bring-forth anything incriminating

against appellant and has only produced documents available in the

office in usual course of duty. Also this witness has pleaded ignorance of

his business or license in respect thereof and thereby, cannot be said to

have supported the case of prosecution in any manner.

20. With regard to testimony of Dr. Rajinder Singh (PW4), Principal

Scientific Officer, CFSL, the impugned judgment has returned the

finding that this witness had examined Q2 and Q3 containing voice

recordings and had compared them with the voice samples of the

accused/appellants, which had tallied. But at the same time this witness

in his cross examination has also admitted that he was a Physicist and not

a medical officer or sound engineer and he had only compared selected

sentences between questioned recording with specimen recording to

make comparison in the voice of Kuldeep Singh Dhankar. He has also

admitted that the sample was sent to him by the CBI and he had not

recorded the voice himself.

21. Impugned judgment notes that the complainant - Subhash Chand

Sharma (PW-9) in his statement has stated that he had filed a complaint

EX. PW9/A to CBI and Mr. Tiwari, SP, CBI and Inspector C.K.Sharma

had laid a trap and handed over a digital recorder and he was instructed

to switch on the digital recorder. He along with one independent witness

B.B. Bhatia, went to the room of appellant- Kuldeep Singh Dankar. The

complainant had told him that he is able to pay Rs.2.00 Lacs within a day

or two and the balance of Rs.1.50 shall be paid later. Thereafter, they

went back to the CBI office and the recording was transferred to two

audio cassettes and the conversation recorded into these two cassettes

was reduced into document i.e. transcript (Ex. PW 9/D), which was

signed by him as well as B.B. Bhatia. This Court finds that the

complainant has specifically stated that after the trap, the CBI officials

had gone to his office for convenience of completion of further

proceedings where the audio was played and the voice was transferred to

another cassette and that he cannot tell as to in how many cassettes the

said voice was transferred. He was called to the CBI office after a month

to identify the voice. When the audio cassette was played on a tape

recorder before the Court, the witnesses identified three voices i.e.

Pradeep Chaudhary and Dhankar. Thereafter, a CD was played before the

trial court and the complainant identified the voice as that of Sanjay. This

witness has stated that the cassettes were not converted into CDs in his

presence. It is pertinent to mention here that witness has specifically

stated that only a portion of audio cassette was played. The witness has

also admitted that when cassette was played voice of „telephone bell

ring‟ and „someone lifting the receiver and saying hello" was also heard

and in transcript Ex. PW9/D. The complainant has also admitted that

when he had entered the room of appellant, one or two persons were

there in the room and they were under conversation, which fact also has

not been recorded in the transcript Ex. PW9/D. Though as per the

complainant, he was taken to a separate room where allegedly appellant-

Kuldeep Singh Dankar had demanded money, however, this witness has

also stated that on 17.01.2005, he was not carrying any tape recorder to

his office.

22. Also, in his cross-examination this witness (PW-9) has accepted

that FIR No. 348/2003, at police station Sarita Vihar, Delhi, has been

registered against him in which the aforesaid Pradeep Chaudhary was his

partner and co-accused. Another, FIR No. (not mentioned) at police

station Vasant Kunj, New Delhi and FIR No. 21/2003, at police station

I.P.Estate, has also been registered against him. Filing of different FIRs

against the complainant and his partner and co-accused Pradeep

Chaudhary brings the conduct of complainant under clouds and it cannot

be ignored that appellant- Kuldeep Singh Dankar is a witnesses in one of

the case registered against him.

23. With regard to appellant No.2, this witness (PW-9) has stated he

did not know Sanjay Gupta; nor he ever demanded bribe from him and

also his name does not figure in the transcript EX.PW 9/D. The

complainant has also admitted that a few cases were pending against him

and in one case, appellant- Kuldeep Singh Dankar is a witness. However,

he has also stated that he did not recollect the exact day and date when

appellant- Kuldip Singh Dankar had demanded bribe from him. Also

stated that the tape recorder handed over to him by the prosecution was

not produced before the Court and the data in the said recorder was

transferred to one cassette or two cassettes. He has further stated that

when he had gone to meet appellant- Kuldeep Singh Dhankar, he had not

taken any money with him and no third person was involved in it by that

time.

24. Pancham Singh (PW-8), who was working for complainant at the

relevant time, in his testimony has stated that he had never heard name of

appellant- Kuldeep Singh Dankar nor had ever seen him at Nangloi or at

the shop of his employer. He has also stated that complainant- Subhash

Sharma was having mobile connection of No. 9891222540 and has

denied the suggestion that he was consciously concealing the fact that the

said number was being held by appellant/accused Sanjay Gupta.

25. Further, one of the independent witness B.B. Bhatia (Pw-10) has

been declared hostile by the learned trial court. This witness has

admitted that his statement under Section 161 Cr.P.C. was typed in two

different fonts and the portion of small fonts was lying sandwitched

between two portions of large font. The learned Trial court has observed

that this witness had admitted his signatures on Ex. PW9/C, however, at

one place he has stated that he had signed on 17.01.2005 and on other

place, he maintains a contradictory stand that he had signed documents

after few days at the asking of CBl officials. In this manner, this witness

has demolished the prosecution story.

26. So far as recovery of alleged amount of bribery from the person of

appellant-Sanjay Gupta at the instance of appellant- Kuldeep Singh

Dankar is concerned, the stand of prosecution is that the raiding party

had recovered Rs.02 Lacs from the car in a scattered manner and thereby,

recovery is proved. On this aspect, the Hon‟ble Supreme Court in B.

Jayaraj Vs. State of A.P. 2014 (13) SCC 55 has observed and held as

under:-

"8. The only other material available is recovery of tainted currency notes from the possession of the accused. Infact such possession is admitted by the accused himself. Mere possession and recovery of currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive, in so far as, the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a "public servant" to

obtain any valuable thing or pecuniary advantage, cannot be held to be established".

27. This Court finds that the alleged recovery of amount from

appellant-Sanjay Gupta itself would not prove charge against appellant-

Kuldeep Singh Dankar or that appellant- Sanjay Gupta had voluntarily

accepted the money knowing it to be bribe. In fact, the complainant in his

statement has stated that he has never known Sanjay Gupta or that he has

ever demanded bribe from him and thereby, the necessary ingredient of

„demand‟ and „acceptance‟ to prove guilt under Section 7 of the Act, is

not proved. Moreover, B.B. Bhatia (PW-10) independent witness has

also not supported the case of prosecution.

28. It is settled proposition of law that unless proven guilty, accused

should be taken as innocent, whereas the learned trial court seems to

have presumed the appellants guilty while adducing and analysing the