Crl.A. 454-2009 Page 1 of 27 * THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 25.08.2009 Judgment delivered on: 23.12.2009 Crl.A.No. 454/2009 SANJEEV KUMAR ..... Appellant vs. STATE (THROUGH CBI) ….Respondent Advocates who appeared in the case: For the Appellant : Ms Rebecca M John with Mr Vishal Gosain, Advocates For the Respondent : Mr Ashish Kumar, Advocate CORAM :- HON'BLE MR JUSTICE RAJIV SHAKDHER 1. Whether the Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest ? Yes RAJIV SHAKDHER, J 1. The instant appeal is directed against the judgment and sentence of even date i.e., 30.05.2009 passed by the Special Judge-IV, (PC ACT) CBI, Delhi. By the impugned judgment, the appellant has been convicted in respect of offence of criminal misconduct under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to in short as the „PC Act‟). In respect of conviction under Section 7 of the PC Act, the appellant is required to undergo rigorous imprisonment for a period of three years with a fine of Rs 10,000/-. In default, the appellant is required to undergo a further simple imprisonment for a period of one month. For an offence under Section 13(1)(d) for which punishment under Section 13(2) of the PC Act, is prescribed, the appellant is similarly required to undergo rigorous imprisonment for a period of three years with a fine of Rs 10,000/-. In default of payment of fine, the appellant is required to undergo simple imprisonment for a further period of one month. The sentences are to run concurrently. Crl.A. 454-2009 Page 2 of 27 2. The prosecution‟s version of the case is as follows:- 3. One Rupesh Jain (PW2), who was the Director and promoter, at the relevant point in time, of two companies by the name of M/s Flexo Foam Pvt Ltd (hereinafter referred to as „FFPL‟)and Pelican Crafts Private Limited (hereinafter referred to as „PCPL‟) was being harassed by the appellant, who admittedly is an employee of the Central Excise Department (hereinafter referred to as the „Excise Department‟). The apparent reason for harassment of PW2 was the pendency of issues pertaining to the aforementioned two companies promoted by PW2, which in the course of their business had to deal with the Excise Department. It is alleged that the appellant demanded a bribe from PW2. In this connection, the appellant had been interacting with PW2 since February, 2002. On 17.05.2002, the appellant had asked PW2 to visit his house. Thereafter the appellant had once again asked PW2 to visit his house on 24.05.2002. It is in this background, PW2 approached the Central Bureau of Investigation (CBI)/Anti Corruption Bureau (ACB). A complaint (Ex PW2/A) was filed by PW2 with the CBI/ACB. On receipt of complaint, the contents of the same were verified and consequent thereto, a FIR bearing No.RC.No. DA1-2002-A-0030 dated 24.05.2002 was registered. 4. In order to ascertain the truthfulness of the allegations made in the complaint, a decision was taken to lay a trap for the appellant. One Mr A K Pandey, Inspector (PW12) was assigned the task of laying the trap. For this purpose, two shadow witnesses i.e., one Mr Suresh Chand (PW4) and Mr Ishwar (PW5), who were the employees with the Northern Railways, were requested to join the trap laying team. 5. The pre-trap proceedings were conducted by PW12. In the pre-trap proceedings PW2 alongwith shadow witnesses PW4 and PW5 were given a demonstration as to how the trap would progress in the instant case. They were familiarized with the procedure whereby, money which, in the instant case was a sum of Rs 25,000/- comprising of thousand and five hundred rupees notes would be coated with phenolphthalein powder; and at a point in time when the money would change hands, the one receiving the tainted Crl.A. 454-2009 Page 3 of 27 money would have powder transferred on to his hands. The fact that the bribe taker had handled the tainted money would get reinforced once his hands, which would have traces of phenolphthalein powder on being dipped in a solution of sodium carbonate would result in the solution turning colour. The mixture of the phenolphthalein powder with a solution of sodium carbonate would catalyze a change in the colour of the sodium carbonate solution to pink. This procedure was explained by physically having PW5 handle powder treated notes with his right hand, and thereafter having his hand dipped in a solution of sodium carbonate. Immediately, on contact the colour of sodium carbonate turned pink. After this demonstration the said solution was discarded. Having explained the aforementioned procedure, powder treated currency notes brought by PW2 were kept in the right side pocket of the trouser worn by PW2. PW 2 was instructed to hand over the tainted notes only on a specific demand by the appellant. A kit bag comprising of clean tumblers and sodium carbonate powder etc. was prepared for being carried by the traps laying team. 5.1 Thereafter PW5 and other members of the trap laying team washed their hands with soap and water and the remaining phenolphthalein powder was returned to the store room of ACB vide memo Ex PW2/D. It was ensured that PW2 did not carry with him any other incriminating documents. During pre-trap proceedings the trap laying team also arranged a digital SVR 240 Samsung digital recorder (in short „Samsung Recorder‟) and KCR 360 with a transmitter and two TDK-60 audio cassettes. Care was taken that the cassettes did not contain any pre-recorded voice. Thereafter, voice samples of both shadow witnesses i.e., PW4 and PW5 were recorded in the Samsung recorder, as well as, in the cassettes through KCR 360. The two recorders were carried to the spot for recording the conversation between the appellant and PW2. PW4 was asked to accompany PW2 upto the point it was possible, in order to overhear the conversation between the appellant and PW2. On the appellant demanding and thereafter accepting the bribe both PW4 and PW2 were instructed to signal the completion of the transaction to the trap laying team positioned outside the house of the appellant, by restoring pre- Crl.A. 454-2009 Page 4 of 27 arranged signs. While PW4 was required to scratch his head with both hands; PW2 was asked to send a signal of completion of transaction from his mobile no. 9810076446 to a pre-fed mobile no. 9810636241. PW5 was instructed to remain with the trap laying team. The proceedings with respect to the pre-trap procedures were recorded in the handing over memo being Ex PW2/D. At about 8.15-8.30 pm the trap laying team alongwith shadow witnesses reached the residence of the appellant situate at AG-1, 65- B, 1st Floor, Vikas Puri, A-Block (hereinafter referred to as the „house‟). The Government vehicles, in which the team members and shadow witnesses alongwith PW2 reached the spot, were parked at a safe distance. On PW2 informing the others that the appellant was a person having a suspicious deposition, it was decided that PW4 would remain outside, in case there was any such disinclination shown by the appellant, in permitting his entry into the house. 5.2 Finally, PW2 entered the house of the appellant. After some time the trap laying team received a signal from PW2 on the pre-fed mobile number. Within no time the trap laying members rushed to the house of the appellant. The door bell was answered by a person who, on being asked as to whether the appellant was available replied by saying “Sanjeev Kumar Nahi Hai” (Sanjeev Kumar is not available). Simultaneously, PW2 on hearing the commotion outside the house shouted that the person answering the call bell was none other than the appellant himself. Consequently, PW2 forcibly opened the door of the house from inside. The members of the trap laying team, on entering the house of the appellant, identified themselves and disclosed the purpose of their visit. The appellant was asked whether he had demanded and accepted a bribe of Rs 25,000/- from PW2. At first, the appellant denied the charge but later on decided to keep quite. At this point, PW2 informed the other members of the trap team that the appellant had accepted the money, and had kept the same in the magazine titled “Mera Bachpan” which was lying on the lower shelf of the central table of the room where evidently the transaction got concluded. Immediately thereupon, the kit bag carried by the trap laying team was opened and a sodium carbonate solution was prepared. The right hand of the Crl.A. 454-2009 Page 5 of 27 appellant was dipped in the solution to ascertain whether the appellant had handled the tainted money or not. On the appellant‟s right hand being dipped in the solution, it turned pink. In the meanwhile, PW5 recovered the money from the magazine and the numbers of the currency notes were tallied with those noted in the handing over memo (Ex PW2/D). A left hand wash was also taken but it did not change colour. Similarly, a wash of the magazine in which the tainted money had been kept was also taken; the solution turned pink. The three washes i.e., right hand wash, left hand wash and the FPBW (magazine wash) were kept in separate tumblers and labeled as RHW, LHW and FPBW respectively. The recovery memo Ex PW2/B was prepared; as also the audio cassette, was sealed vide memo Ex PW4/A, after a recording was prepared from Samsung recorder. The site plan of the premises Ex PW4/C was also prepared. On a search of the house of the appellant vide Search Memo Ex PW4/D, two pieces of paper (marked DX) were recovered which were seized vide Ex PW4/DX. Thereafter, the statement of PW2 and the two shadow witnesses i.e., PW4 and PW5 was recorded. 6. In the background of the aforesaid circumstances, the then Investigating Officer PW13 to whom the case had been transferred from PW12, recorded supplementary statements of PW2, PW4 and PW5 and as also of other witnesses. He also prepared a transcript (Ex PW2/E) of the conversation recorded between the appellant and PW2 in the presence of witnesses. The I.O. also recorded the specimen voices of PW2 and the appellant. This was also done in the presence of witnesses. Documents were also summoned and received from the office of the Excise Department. Furthermore, cell phone records were also obtained from Bharti Cellular Limited (ExPW2/DA) vide letter dated Ex PW11/A. The hand washes, magazine wash and the cassette containing the conversation between the appellant and PW2 were sent for expert opinion to the Central Forensic Science Laboratory (CFSL). On obtaining the report of PW3 who, at the relevant time was SSO-II at the CFSL, CBI; and the order sanctioning the prosecution of the appellant passed by PW1 i.e., the Joint Commissioner, Central Excise, Delhi; a chargesheet was filed in the Court. Crl.A. 454-2009 Page 6 of 27 7. By an order dated 18.03.2004, the following charge was farmed against the appellant. Since submissions have been made on behalf of the appellant pertaining to the issue that the charge as framed was defective, it would be relevant to extract the charge, which reads as follows:- “Firstly, that in the last week of February, 2002 you visited the factory M/s Flexo Foam Pvt. Ltd. and mentioned about a complaint against that factory and thereafter you started demanding money from the complainant Rupesh Jain on phone. On seeing that complainant was not taking your calls seriously and did not pay any money to you, on 17.5.2002 while you were posted as Inspector, Central Excise, Gurgaon demanded Rs 2 lacs from the complainant Sh. Rupesh Jain, Director of M/s Flexo Foam Pvt. Ltd. for a motive or reward and also threatened him that if above demand is not met, his factory would be raided and booked in some case and in furtherance of your demand you accepted the bribe of Rs. 25,000/- from the complainant on 24.5.2002 at your house No. AG-1/65-B, Vikas Puri, New Delhi and thereby you committed an offence punishable u/s 7 of the P.C. Act and within the cognizance of this Court. Secondly, that you being a public servant while working as Inspector, Central Excise, Gurgaon by abusing your official position or otherwise by corrupt or illegal means obtained pecuniary advantage for yourself to the tune of Rs.25,000/- from the complainant and thereby you committed an offence punishable u/s 13(2) r/w 13(1)(d) of the P.C. Act and within the cognizance of this Court. And I hereby direct you that you be tried by this Court for the said charges.” 8. Continuing with the narration, it would be relevant to mention that the appellant had challenged the framing of the charge by way of Criminal Revision Petition being; Crl.Rev.No. 375/2004. A single Judge of this Court dismissed the Criminal Revision petition vide order dated 01.02.2005. 9. As a matter of fact, the appellant had also filed an application under Section 464 of the Code of Criminal Procedure, 1973 (in short the „Cr.P.C‟) in the Court of Shri Vinod Goel, Special Judge, CBI, Delhi for acquittal on the ground that prosecution had failed to prove the charges framed against the appellant vide order dated 18.03.2004. By an order dated 05.02.2008, the appellant‟s application under Section 464 of the Cr.P.C was dismissed. The appellant escalated the matter further by preferring a Criminal Miscellaneous being Crl.M.C.No 607/2008 in this Court. A single Judge of this Court vide order dated 10.09.2008 dismissed the petition. Crl.A. 454-2009 Page 7 of 27 10. The prosecution in order to prove its case has cited 14 witnesses. The defence has cited three witnesses. In addition, the appellant‟s statement under Section 313 Cr.P.C was also recorded by the trial court. The sum and substance of statement recorded by the trial court under Section 313 of the Cr.P.C was that PW2 bore an animus against the Excise Department in view of his ongoing litigation with them, and in order to get even with the Excise Department, the appellant had been falsely implicated in a bribery case so as to pressurize the Excise Department to withdraw the case against him. 11. In the background of the aforesaid circumstances, the learned counsel for the appellant assailed the judgment of the trial court on the following grounds:- (i) the charge framed vide order dated 18.03.2004 is defective in as much as that it refers to the fact that at the relevant point in time i.e., 17.05.2002 a sum of Rs 2 lacs was demanded as bribe and in furtherance of the demand, on 24.05.2002 the appellant accepted a bribe of Rs 25,000/- while he was posted as an Inspector, in the Excise Department, at Gurgaon. It was submitted that the appellant had, as a matter of fact, already moved to the technical branch of the excise department located at Delhi w.e.f. 01.05.2009. Apropos to the aforesaid submission, it was contended that the appellant was thus in no position to either benefit or harm the interest of PW2. Therefore, the charge as framed was bad in law and hence, the impugned judgment should be set aside on this short ground alone; (ii) the testimony of PW2 has to be analysed and appreciated in the background of the fact that the Excise Department way back in March, 2001 had initiated proceedings against PW2 and hence, the entire case built on the complaint of PW2, that the appellant was threatening to inveigle PW2 in a false case is clearly without basis; (iii) there are several discrepancies in the testimony of PW2. For this purpose, a comparison was made with the assertions in the complaint (Ex PW2/A) to the CBI and PW2‟s testimony in Court. On a comparison it was submitted that several aspects were referred to in the complaint in respect of which there was no mention in the testimony in Court. These being: the appellant had called PW2 to his office in February, 2002; since Crl.A. 454-2009 Page 8 of 27 then the appellant had been consistently calling PW2 on his phone for the purposes of payment of bribe; because PW2 was not taking the appellant‟s calls seriously, and had not paid him the money; on 17.05.2002 the appellant called PW2 to his house and demanded Rs 2 lacs as bribe, failing which, he threatened that his factory would be raided and PW2 be booked in some case or the other; PW2 was informed that since the appellant was travelling out of Delhi, he should visit the appellant‟s house on 24.05.2002 for paying a bribe. The discrepancies were elaborated upon by adverting to the following: (iii) (a) the visitor‟s register (Ex PW6/B) maintained in appellant‟s office had no mention of PW2‟s visits to the Office in February, 2002; (iii)(b) furthermore, the mobile phone records of March-April, 2002 of PW2 would show that between March-April, 2002, eleven (11) calls were made by PW2 to the appellant, while in April, 2002 two short calls were made by the appellant to PW2; (iii) (c) in the complaint, it is stated that the appellant had called PW2 to his office on 17.05.2002, while in the cross-examination, PW2 had stated that the appellant had called him on phone on 17.05.2002. There is no record of phone calls made or received as between PW2 and the appellant on 17.05.2002. For this purpose, reliance was placed on Ex PW2/DA. (iv) In respect of the prosecution‟s version as regards the events which preceded and followed the laying of trap, the following discrepancies were pointed:- (a) both the shadow witnesses i.e., PW4 and PW5 were employees of the railways. PW2 through his companies FFPL and PCPL also dealt with the railways. PW2, as a matter of fact, was in the business of supplying seats and berths to the railways. The fact that the shadow witnesses who accompanied the trap laying team were requisitioned from railways, in the facts and circumstances of the instant case, had to be viewed with suspicion. It was, as a matter of fact, suggested that even the trap laying officer PW12 was at some point in time working with the railways; Crl.A. 454-2009 Page 9 of 27 (b) it has come through in the testimony of the prosecution witnesses that, PW2 was handed over the Samsung recorder which contains a chip, for the purposes of recording conversations between PW2 and the appellant, on 24.05.2002. Both, the Samsung recorder, as well as, the chip were not produced by the prosecution; (c) the audio cassette sealing memo (Ex PW4/A) which records that an audio cassette used for recording conversation in the trap proceedings was taken out from the KCR 360 recorder in the presence of independent witnesses; lends credence to the stand of the defence that there is no contemporaneous record of the purported conversation between the appellant and PW 2 held on 24.05.2002 at the time the tainted money exchanged hands between them. Since firstly, what was carried inside the house of the appellant by PW 2 was a Samsung Digital recorder; and secondly, KCR-360 is a listening device and not a recorder; and (d) lastly, there was no recovery of tainted money from the appellant. Even according to the prosecution, the tainted money was recovered from a magazine “Mera Bachpan”. Curiously, the magazine was not produced by the prosecution. (v) as per the complaint of PW2, Ex PW2/A the appellant had demanded a sum of Rs 2 lacs. The prosecution has failed to explain the circumstances in which the amount demanded as bribe was reduced to Rs.25,000/-; (vi) it is come through in the evidence of the prosecution that GC notes (Ex P1/1 to Ex P1/26) which were eventually handed over by PW2 to the appellant, comprised of four notes of a denomination of rupees thousand and the balance twenty one notes of denomination of rupees five hundred. If the bribe amount was a sum of Rs 25,000/-, this would mathematically not add up to the said sum. (vii) for the appellant to be convicted under Section 7 and Section 13(1)(d) of the PC Act, there has to be a demand of money by the appellant. The transcript of the conversation which has been placed on record (Ex PW2/E) does not reveal that there was a demand of money by the appellant. Mere acceptance of money cannot lead to the conclusion that the appellant has committed an offence with which he has been charged; Crl.A. 454-2009 Page 10 of 27 (vii) the CFSL report (Ex.PW7/A) clearly indicates that no spectrographic examination of critical portions of the conversation alleged to be held between the plaintiff and PW2 could be conducted in view of disturbance in the background. Merely because the CFSL report opined that there is a similarity in „linguistic‟ and „phonetic‟ features would not necessarily lead to the conclusion that the voices in the tape were that of the appellant and PW2. (viii) the CFSL report, on the hand washes opined, that left hand wash (LHW) gave a positive result for phenolphthalein and sodium carbonate, while the right hand wash (RHW) and the magazine wash (FPBW) gave positive result only for sodium carbonate. This was in contradiction to the testimony of PW12 wherein he stated that the right hand wash (RHW) and the magazine wash (FPBW) turned pink. There is, therefore, no conclusive proof of the fact that the appellant had actually accepted the tainted money. 12. To sum up, the learned counsel for the plaintiff says that there is a clear case of animus which has been set up by the defence if due regard is had to the fact that the complainant was engaged in litigation with the Excise Department. In this regard reference was made to the following documents filed by the defence pertaining to the period March, 2001: the KCR 360 recorder was not carried into the house of the appellant, what was taken in was the Samsung recorder, which was not produced by the prosecution; the number of GC notes which were taken in were 26 which did not add up to the bribe amount of Rs 25,000/- whereas the GC notes which ought to have been taken in and handed over to the appellant, given the denomination of notes adverted to by the prosecution, should have been 46 in number; the CFSL report of both with respect to hand washes as well as conversation which purportedly was held between the appellant and PW2 does not incriminate the appellant; the magazine in which the money was kept was not produced by the prosecution. 12.1 The aforesaid, according to the learned counsel, briefly encapsulate the probable defence of the appellant and the standard of proof in respect of the same is preponderance of probability. Crl.A. 454-2009 Page 11 of 27 12.2 The learned counsel for the appellant also submitted that presumption drawn by the trial court based on Section 20 of the PC Act was erroneous; there can be no question convicting the appellant for an offence under the PC Act unless there is a demand, and consequent acceptance of the bribe by the appellant. In support of her submissions, the learned counsel relied upon the following judgments:- Pannalal Damodar Rathi vs State of Rajasthan (1979) 4 SCC 526 paras 8 & 11 at pages 528-529; Anand Prakash & Anr vs State of Haryana 2008 (4) Crimes 365 (P&H) paras 11, 13 & 18 at pages 368-370; State (Delhi Admn.) vs Satish Chand Sharma 1987 CriLJ 1205 paras 9 & 13, 17, 18 & 19 at pages 1208-1212; C.M. Girish babu vs CBI, Coachin, High Court of Kerala (2009) 2 SCC (Crl.) 1 para 14 at page 5; Sita Ram vs State of Rajasthan: AIR 1975 SC 1432 paras 9 & 10 at pages 1435-1436; and lastly, M Abbas vs State of Kerala : JT 2001 (4) SC 92 para 10 at page