Full Text
SANJAYKUMAR SINGH Appellant
Through: Mr.Harsh Kumar Sharma& Ms.Vaibhavi Sharma,Advocates
Through: ^ l^ 'Public Prosecutor with Mr.Prateek iGimar,Advocate
ORDER ^ Impugnedjudgmentofc22'^5Ma^,Sol|T& appellantand his co- accused Hari Chand and iVhrhzw guilty of the offence under
Section 120B IPC r/w Section 7 ofPrevention ofCorruption Act, 1988
(hereinafter referred to as the P<2(Mt)tanii also for the offence under
Section 13(1)(d)ofPC Act. Vide order of23'^'' May,2014,appellant and his co-accused have been sentenced to rigorous imprisonment for four years with fine of?1,00,000/- with default clause for the offence under
Section 120B IPC and similar sentence has been awarded to appellant and his co-accused for offence under Section 7 ofPC Act. For the offence under Section 13(2)r/w Section 13(1)(d)ofPC Act,appellantand his co-
Crl.A.698/2014 Page1 of11 2019:DHC:7857 accused have been sentenced to rigorous imprisonment for three years and fine of ^50,000/- each with default clause. The aforesaid sentences have been made to run concurrently by the trial court.
Appellant was posted as Superintendent and his co-accused Hari
Chand was posted as Inspector, whereas accused Subhash Narin was posted as Assistant Commissioner in Central Excise,Ministry ofFinance, Division VIII,Scope Minar,Laxmi Nagar,Delhi.The factual background ofthis case, as noticed by the trial court in the impugned
JUDGMENT
"3. Briefly stating, the facts of the case are that a written complaint dated 31.12.2017, Ex. PWl/D was made by Sushil Kumar Jain (PWl)(hereinafter shall be referred as complainant)to the CBIto the effect that he was looking after the entire business affairs and was also an authorized signatory ofJ.V. Industries(P)Ltd. where they used to run a copper manufacturing plant: On 19.12.2007, a team of anti Evasion Cell ofCentral;Excise conducted a search at the premises of J.V. Industries: and some records were seized. It isfurther mentioned that oh28II2.2007, Mr. Hari Chand,Inspector, CentralExicEc Contacted the complainant on mobile phone and asked to meet him in his office at
Laxmi Nagar. The complainant visited there and met Hari
Chand who took him to Sanjay V: Kumar Singh, Superintendent who told that<anti .evasidn cell asked for inspection report. S.K.Singh and Hari Chand told that they could getsettled the case ofthe complainant in anti evasion cell by sending a favourable report. Complainantfurther mentioned that they demanded Rs.lO lakh as bribefrom the complainantfor sendingfavorable report. They threatened the complainant that in case bribe was not paid on
30.12.2007, they would submit report against the factory.
In the morning of 31.12.2007, Hari Chand called on the mobile phone ofthe complainant and asked the reasonfor not paying the bribe on 30.12.20071 When complainant
Crl.A.698/2014 Page 2of11 took some excuse, he told that he alongwith S.K.Singh would come to the factory in the afternoon to conduct inspection. Hari Chand asked the complainant tojoin them and topay them the bribe ofRs.lO lacs in thefactory. Since the complainant did not want to pay the bribe, he made complaintto CBI.
4. The complaint Ex.PWl/D was marked to Inspector Rajesh Chahal (PW16). Independent witness Neeraj Jain (PW12) was arranged. Complainant(PWl), his son Mandj Kumar Jain and independent witness were introduced to each other and contents ofcomplaint were explained. One digital voice recorder was arranged. Since, officials of Central Excise were to visit thefactory ofthe complainant in the afternoon of31.12.2007, it was decided to verify the contents ofcomplaint. Inspector Rajesh Chahal (PWl[6]), complainant, his son and independent witness leftfor the factory. On the way, a call was received by complainant from accused Hari Chand. which(was recorded. Afterfew minutes, another call was.^received from accused Hari Chand which was also recorded: Accused Hari Chand asked the complainant to come tp thefactory quickly. On reaching thefactory, conijpjdmdnfw^ over digital voice recorder, whereas'PMIlfjajm witness remained outside. AfteriqboMt>.lM>phdur^^^^ came out and informed that adcmedfHari. Chand and Sanjay Kumar Singh came to hisfactoryfor inspection and they had demanded bribe ofRs.lO lacs by geHure offingers. They had asked the cpmplqinqnt ia-hm the bribe amount in the evening of 31.12.2007. Thereafter, they reached CBI office. The recording ofvoice recorded was heard which confirmed demand of bribe by them. On the direction ofPWl[4], complainant called accusedHari Chand on his mobile phone and expressed his inability to arrange the money. Thereafter, accused Hari Chand made a call to complainant and insisted him to hand over the bribe money to him and accused S.KSingh as they were waiting near Cross River Mall, Karkardooma. Recorded conversation was transferred to audio cassette Ex.P[5]. Its inlay card is Crl.A.698/2014 PageSofll Ex.P[9] and cloth wrapper is Ex.PlO. A rough transcription Ex.PWl/M of the said conversation was prepared. Verification proceedings were recorded in verification memo Ex. PWl/E. The complainant informedPW14 that he could arrange only Rs.2.[5] lacs. He was asked to come on nextday i.e. 01.01.2008.
5. After verification of the demand of bribe, FIR Ex.PWl/N was registered and its investigation was entrusted to Inspector Sandeep Chaudhary (PW15) for laying oftrap on 01.01.2008. On 01.01.2008, in CBIoffice, two independent witnesses, namely, Neeraj Jain (PW12) and Praveen Gupta (PW13) were arranged. A trap team consisting of TLO, Inspector Rajesh Chahal (PWI[6]), Inspector S.C.Bhalla, Inspector Prem Chand, SI Nikhil Malhotra, two independent witnesses, complainant and his son ManojKumar Jain was constituted. All were introduced to each other and contents ofcomplaint were explained to all. The complainant (PWl) produced GC notes in the denomination ofRs.1,000/-, Rs.500/- & Rs.lOO/- totaling to Rs.2.[5] lacs. The said GC notes. were treated with phenolphthalein powder and, aIpractical demonstration regarding reaction between,phendlphthalein powder and sodium carbonate was/explainedyto all the trap party members. Personal searchypf/cornpldinant (PWl) was conducted and he was not (allowed to keep anything incriminating except his mobile phone. Said tainted GC notes were wrapped,in a newspaper and kept in a handbag. The said handbag was given to the complainant with the direction to hand over the tainted bundle ofGC notes to the accused persons on their specific demand. Independent witness NeerajJain (PWl[2]) was asked to act as a shadow witness to remain close to the complainant to over hear the conversation and to see the transaction ofbribe money. He was also directed to pose himself as driver of the complainant. He was directed to give signal ofcompletion oftransaction ofbribe by scratching his head with both of his hands or by giving a call/missed callfrom his mobile phone to the mobile phone of Inspector Rajesh Chahal Crl.A.698/2014 Page4of11 to (PW16). The other independent witness Praveen Gupta (PW13)andManojKumarJain,son ofthe complainantwas askedto remain with the membersofthe trap team.
6. In the digital voice recorder,formal voice ofboth the independentwitnesses were recordedandit wasgiven to the complainant (PWl). It was decided to take position near Cross River Mall, Karkardooma. A handing over memo Ex.PWl/F regarding proceedings conducted in CBI office was prepared. All the members oftrap team leftfor said Mall. Atabout 10.00 a.m., complainant(PWl)made a callfrom his mobile phone No.9810050612 to the mobile phone 9999898301 of accused Hari Chand. The conversation which had taken place between them was recorded during which accused Hari Chand told that he along with accused Sanjay Kiimar Singh was coming in front ofCross River Mall in about/1.[5] minutes. Car ofthe complainant wasparked in the service lane, infrontofgate ofMall, whereas other vehicles:werf.kept a bitfar away. Other trap party members took positions on both sides of the Mall. ',.
7. At about 10:00 a.m., one white coloured MarutiZen car came andstopped at,the back;side ofcomplainant's car. AccusedHari ChandandSKSingh camePutofthesaidcar and moved towards the car The complainant came out ofiPie ZdHfldd d. conversation with both the accused and witness Neeraj Jain remained inside the car. Both the accused demanded bribe from the complainant while they were;stflnding.injthe service lane. Complainant told that the amount was lying in the car. They decided that accused Hari Chand willgo in the car of the complainant to take the bribe money. Accusedpersons also said that part of the bribe would also be given to accused Subhash Narain, Assistant Commissioner. Thereafter, complainant and accused Hari Chand sat in the car ofthe complainant; complainant sat on thefront seat; accused Hari Chand sat on the rear seat; Neeraj Jain (PW12) started driving the car slowly; accused S.K.Singh moved in Maruti Zen car. On specific demand ofbribe by Crl.A.698/2014 Page5of11 accused Hari Chand, complainant took out bundle of GC notesfrom the hand bag andgave it to accusedHari Chand who accepted the same with his both hands and kept the same in his left armpit under his blue coat. Witness Neeraj Jain (PW12) heard the conversation and had seen the transaction ofbribe. After taking a round ofthe mall, car wasparked near MarutiZen car, infront ofZonal Office of transport department. Complainant and both the accused came out of the cars and started conversation. Shadow witness (PW12) made a callfrom his mobile phone to the phone ofInsp. Rajesh Chahal as pre-decided. Immediately, trap team members reached the spot and both the accused were challenged whether they had demanded bribe ofRs.lO lacs and accepted bribe ofRs.2.[5] lacsfrom the complainant. On this, both the accused turned pale. Both the accused were caughtfrom wrists. Digital voice recorder was taken back,from the complainant. Independent witness Praveen Gupta(PW13)recovered bribe amount Ex.P8from the left side armpitofaccusedHari Chand." It is the case of prosecudon that-the bribe amount was recovered from co-accused Hari Chand and sample.voice,ofappellant was taken and during investigation, it was sent,to.CEL. -Sh. D.K.Tiwari (PW[3]) had submitted the report PW3/B regarding the voice sample of appellant. Prosecution has relied upon evidence of seventeen witnesses, which includes evidence of material witnesses. SX.Jain (PWl) is the complainant; D.K.Tanwar (PW[3]) is the expert who had examined the voice recording; Praveen Jain (PW[9]) had accorded sanction for prosecution; Rajesh Kanava(PWIO)and Tej Pal Singh(PWll)are the witnesses who had searched the office premises of accused person; Neeraj Jain (PWl[2]) and Praveen Gupta (PWl[3]) are the independent witnesses; DSP Sandeep ChaudHARY (PWl[5]) is the Trap Laying Crl.A.698/2014 Page[6] of11 4<1^ Officer and DSP Rajesh Chahal (PW16) & Addl. SP Ravi Gambhir (PW17) were the Investigating Officers of the case. Appellant in his statement under Section 313 Cr.P.G. before the trial court, had claimed that he is innocent and has been falsely implicated and had got six witnesses examined in defence. Trial court has relied upon evidence of afore-referred material witnesses to convict and sentence appellant as noted hereinabove. Learned counsel for appellant assails the impugned conviction and sentence on the ground that Complainant(PWl)has categorically stated that appellant had not demanded any money and independent witness Neeraj Jain(PWl[2])and D.K.Tanwar(PW[3]),recovery witness, have not deposed against appellant. It is pointed;out by learned counsel for appellant that original Digital Voice Recording(DVR)was not produced before the trial court and as per evidence of D.K.Tanwar (PW[3]), the sample voice ofappellant did hottall^ voice recorded and as per evidence ofComplainant(PWl),prc-trap verification Memo(Ex.PWl/E) dated 31 December,2007,recpfdihg"Was for hours and it is pointed out that as per evidence of D.K.Tanwar (PW[3]), the cassette prepared from the voice recording was of60:,minutes arid this witness has stated thattwo hours'recording was copied into single cassette and this reflects selective deletion.It is also submitted that as per evidence ofD.K.Tanwar (PW[3]),if it is so done,then chances oftampering are there. Thus, it is submitted that DVR,as contained in the cassette,is not reliable because it is not accompanied by Certificate under Section 65B ofIndian Evidence Act, 1872. It is pointed out that cassette prepared from the DVR, is a secondary evidence, which cannot relied upon. So, it is submitted that Crl.A.698/2014 Page7of11 prosecution fails to connect appellantfor the offence in question and thus, appellant deserves to be acquitted. On the contrary, learned Special Public Prosecutor for respondentT CBI submits that appellant's presence at the spot gives rise to the presumption under Section 20 ofthe PC Act, which appellant had,failed to rebut.It is pointed outthat appellantin his statement under Section 313 Cr.P.C. has stated that preparation of Panchnama (Ex. PWl/A) and another letter dated 20^'^ September, 2007 {Ex. PWl/B) and it another copy(Bx.PWl/B-2),is matter ofrecord, It is pointed outthat appellant in his statement under Section 313 Cr.P.C. has admitted that production of documents by the Complainant(PWl)is,matter of record. Attention of this Court is drawn to questions No.1,2,[5] & 12 to submit that appellant has failed to rebut the statutor)' presumption raised against him under Section 20 of the PC Act. Learned Special Public Prosecutor for respondent-CBI submits that furnishing of certificate under Section 65B of Indian Evidence Act,.1872 is, not. required in the facts and circumstances of this case. Learned Additional Public Prosecutor, for respondent-State also submits that apart from afore-noted voice recording, there is ample evidence on record to prove the case against appellant and that conviction ofappellant is borne out from the evidence on record and so,this appeal deserve dismissal. Upon hearing and on scrutiny ofevidence on record,I find that the Complainant (PWl) as well as recovery witness (PWl[3]) have not supported the prosecution case qua appellant. Otherwise also,it is not the prosecution case that appellant had demanded or accepted any bribe. The role of demand and acceptance of bribe is attributed to appellant's co- '■ Page 8 o7IT tM accused Hari Chand. Appellant has been convicted in this case with the aid of Section 120B IPC. Prosecution has relied upon the electronic evidence to do so. It is the case ofprosecution that from the original DVR,a cassette (Ql)was prepared. It has come in the evidence of Complainant(PWl) that when the said cassette (Ql) was played, it was not found to be audible and the original DVR was not produced before the Court. It transpires that in the cassette Ql and Q[2], the voice of appellant is not audible to attribute any role to him and that the electronic evidence led is not accompanied by a certificate.under Section 65B of the" Indian Evidence Act, 1872. SupremeyCourt in ilwwflr R.F. Vs: P.K.Basheer & ors.(2014)10see 473 has categoricallyreiterated thatin the absence of certificate under Section 65B -of the Indian Evidence Act, 1872, secondary evidence in electronic mo^b'is not admissible. Since the electronic evidence led by prosecution;is not accompanied by certificate under Section 65B ofthe Indian Evidence Act,/1^ therefore, it has to be excluded from consideration and thereupon, this Court finds that the prosecution is left with the evidence of Complainant (PW-1), who has categorically stated in hisjexddehce.thafdle4w^ told by CBI about appellant being a party to the commission ofoffence in question and that Complainant(PWl) had not heard or seen appellant talking to his coaccused Hari Chand. It has come in the evidence of Complainant(PWl)that appellant was not spotted by him when inspection of his factory was puiportedly done by appellant and his co-accused Hari Chand on December,
2007. Even the presence of appellant on the day of inspection is not Crl.A.698/2014 ^ ^ ^ ' '' "." • Page9of11,y-. •' established from the evidence of Complainant(PWl). Appellant is not required to explain his presence at the spot and so, presumption under Section 20 ofthe PC Act does not arise. So far as the so called admissions made by appellant in his statement under Section 313 Cr.P.C., as pointed out by learned Special Public Prosecutor for CBI, are concerned, I find that these admissions do not incriminate appellant in any manner whatsoever. Moreover, prosecution has to stand on its own legs and cannot base its case on so called inconsequential admissions ofappellantaccused in his statement under Section 313 Cr.P.C. In the absence of primary evidence i.e. DVR, the secondary evidence i.e. the cassette in question, cannot be relied upon as prosecution's Voice Identification Expert witness D.K.Tanwar(PW-3)has,admitted in his evidence that the chances oftampering are there. Absence of demand of bribe in ia trap case is fatal to the prosecution. Supreme Comt \n B.,Jayaraj ¥s. State ofAndhra Pradesh (2014)13 see 55 and/*. SatyanarayaiaaMurthy Vs. DistrictInspector of Police, State of Andhra Pradesh dhd'Ahr. (2015) 10 SCC 152 has reiterated that in the absence of proof of demand of illegal gratification, the offence under Section 7 of PC Act does not stand proved, as acceptance ofillegal gratification is also required to be proved by reliable evidence. In the instant case,appellant has been convicted with the aid of Section 120B IPG while relying upon the electronic evidence, which has been found by me to be inadmissible in light of afore-going narration. The ingredients of offence of criminal conspiracy, as re-capitulated by Supreme Court in State v. Anup Kumar Srivastava,(2017) 15 SCC 560 are as under Cii.A.698/2014 Page 10 of11 ll ^'26.Similarly, the law on the issue emerges to the effect that conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object behind the conspiracy is to achieve the ultimate aim ofconspiracy.For a charge of conspiracy means knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made ofthe goods or services in question may be inferred from the knowledge itself. This apart, theprosecution has not to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawful use. Finally, when the ultimate offence consists ofa chain ofactions, it would not be necessaryfor theprosecution to establish, to bring home the charge of conspiracy, that, each of the conspirators had the knowledge ofwhat the collaborator would do." Upon testing the prosecution easePn/the afbre-referred parameters, I find thatthe prosecution hasmiserably.-M^ to prove that appellant had conspired with his co-accused to cdmmitjtheipffen in question.In view ofafore-going narration, this opinion that the conviction ofappellantis unsustainable. Accordingly, impugned judgment and: order on sentence qua appellant is hereby set aside with the rider that any observation made herein,would notimpactthe conviction ofco-accused Hari Chand. With aforesaid rider,this appeal is accordingly disposed of.
JUDGE MARCH 29,2019 r