P.C. MISHRA Vs CBI
CRL.A.692/2010 Page 1 of 35
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: December 03, 2020
Pronounced on: January 21, 2021
+ CRL.A.692/2010
P.C. MISHRA ….. Appellant
Through: In person
Versus
CENTRAL BUREAU OF INVESTIGATION ….. Responde nt
Through: Mr. Rajesh Kumar, Special Public
Prosecutor
CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T
The hearing of the appeal was conducted through vid eo conferencing.
1. The present appeal has been filed by the appellant seeking to set aside
the judgment dated 24.05.2010 passed by Special Jud ge, Delhi in CC
No.31/2008 [CC No.62/1999 (old number)], vide which he has been held
guilty and convicted for the offences under Section s 7 and 13 (1) (d) read
with Section 13 (2) of Prevention of Corruption Act , 1988 (hereinafter
referred to as the “PC Act”) and order on sentence dated 26.05.2010, vide
2021:DHC:225CRL.A.692/2010 Page 2 of 35
which he has been directed to undergo rigorous impr isonment for two years
with fine and default clause.
2. The case of prosecution against the appellant is th at on 28.02.1996
while working as Assistant Commissioner-V (Appeals) , Sales Tax
Department, Bikri Kar Bhawan, New Delhi, demanded a sum of ₹4,000/- as
illegal gratification from Shri Gulshan Sikri Propr ietor of M/s Filtrex India,
Nangal Raya, New Delhi, for favouring him in the ma tter of appeal pending
before him and in furtherance of this demand, he on 01.03.1996 at about
12.40 pm in the Sales Tax Office, I.P. Estate, New Delhi demanded a sum of
₹ 4,000/- from Shri Gulshan Sikri, complainant and d irected the complainant
to hand over the demanded money to his Reader Shri Ravi Bhatt, who on
01.03.1996 accepted the same as per direction of th e appellant and on his
behalf as illegal gratification, other than legal r emuneration as a motive or
reward for favouring the complainant and thereby, h e committed an offence
punishable under Section 7 of P.C. Act, 1988 read w ith Section 13 (1) (d)
and 13 (2) of the said Act.
3. The charge against the appellant was framed vide or der dated
08.02.2000 and thereafter, trial of the case came i nto motion.
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4. To prove its case, the prosecuting agency examined 17 witnesses and
appellant examined 01 defence witness. After consid ering the evidence of
the witnesses, the learned Trial Court convicted th e appellant. Being
aggrieved by the impugned judgment and conviction, the present appeal has
been filed.
5. The facts of the case in brief are that the appella nt was working as
Asstt. Commissioner, Sale Tax Department. An appeal case filed by PW 5
Gulshan Kumar Sikri (the complainant) was pending a djudication before the
appellant. During the course of hearing of the appe al on 28.02.1996, the
appellant allegedly demanded Rs. 4000/- as bribe fo r deciding the said
appeal in his favour. A raid was organized by the C BI official with the aid of
electronic devices and with the help of public Panc h witnesses, who were
required by the raiding officer for listening to th e conversation between the
appellant and the complainant and simultaneously, t he conversation
transpired between them was also recorded on one mi cro cassette and other
normal cassettes. The complainant was directed to p ay the bribe amount to
his reader Ravi Bhatt, UDC (co-accused), who was si tting in another room.
The complainant allegedly gave the bribe money to R avi Bhatt in his
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separate room, who was immediately apprehended by t rap laying officer and
recovered the bribe money from the left side pocket of his pant.
6. The appellant appeared in person and submitted that he and co-
accused were arrested and on the next day i.e. 02.0 3.1996, they were
produced before Special Judge, Delhi at 02:00 pm. T he said Judge while
granting bail on 02.03.1996 to both of them, reprim anded the C.B.I. officers
and passed severe strictures after going through th e case diaries and ordered
as under:-
“till date no statement of the complainant or Panch
witnesses has been recorded by the prosecution thou gh
the accused persons were arrested at about 2.00 P.M .
yesterday. No transcription of the conversation bet ween
the accused P.C. Misra and the complainant has been
prepared nor the alleged cassettes containing the
conversation have been produced before me today. Th e
recovery memo prepared by the raid officer does not give
the exact conversation between the complainant and the
accused and contains only descriptive statement sho wing
that the accused (P.C. Misra) had directed the
complainant to pay the money to accused Ravi Bhatt’ .
The special judge Delhi further observed that ‘ther e is
absolutely no evidence of any directions having bee n
given by accused P.C. Misra to complainant to give
money to accused Ravi Bhatt before this court. ”
7. Thereafter, the investigating officer investigated the case further and
recorded the statement of witnesses. During the cou rse of investigation on
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06.08.1996, Ravi Bhatt co-accused moved an applicat ion in the court of
Special Judge, Delhi for recording his confessional statement U/s 164
Cr.P.C. and said application was marked by the Ld. Special judge to Shri
Rakesh Garg, Ld. M.M. who recorded the statement of Ravi Bhatt U/s 164
Cr.P.C. on 07.08.1996. On 24.10.1996, the investiga tion officer, A.K.
Kapur, instead of using the confessional statement for securing a conviction
against accused Ravi Bhatt, moved an application be fore Ld. Special Judge,
for grant of pardon to him on account of his person al/vested interest. The
Ld. Special Judge neither considered the applicatio n nor passed order U/s 5
(2) of Prevention of Corruption Act, 1988, but inst ead directed the Ld.
C.M.M. to dispose of the application. The learned C .M.M. further directed
the application to Sh. Praveen Kumar, Ld. M.M. The Ld. M.M. vide his
order dated 02.11.1996, granted pardon to the said Ravi Bhatt U/s 306
Cr.P.C. Thereafter, charge-sheet was filed on 20.05 .1998.
8. The appellant further submitted that the Trial Cour t noted in Para-24
of order dated 24.05.2010 that the complainant PW 5 did not support the
case of the prosecution. The relevant portion of th e said para is reproduced
as under:
“24. …… Consequently, the submission is that when
the said witnesses particularly PW 5 Shri Gulshan K umar
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Sikri did not depose at all about any bribe having been
demanded by the accused, question of corroboration
thereof, does not arise at all. Resultantly, there is a
prayer for acquittal of the accused. ”
9. The Ld. trial court also noted in para-35 of the ju dgment as under:-
“…..PW-5 Shri Gulshan Sikri had also deposed that P .A.
of the accused had been demanding Rs.8000/- to Rs.
10,000/- significantly, the said complainant PW5 Sh ri
Gulshan Kumar Sikri did not depose in the court tha t the
bribe amount had been demanded by the accused on
28.2.1996 from him. Based on this testimony, the
argument of Ld. Defence counsel is that prosecution has
miserably failed to prove that any demand of bribe had
been made by the accused on 28.2.1996 and therefore
accused is entitled to be acquitted particularly wh en the
S.P. concerned has not been examined.”
10. It was submitted by the appellant that the Ld. Tria l Court passed this
order without due application of mind and in violat ion of all canons of
justice and laws declared by Hon’ble Supreme Court and without invoking
Section 20 of the P.C. Act, 1988.
11. To strengthen his arguments, appellant relied upon the judgment
passed in the case of State of Maharashtra Vs. Dnyaneshwar Laxman Rao
Wankhede , (2009) 15 SCC 200 wherein it is held in para 16 a s follows:
“Indisputably, the demand of illegal gratification i s a sine
qua non for constitution of an offence under the
provisions of the Act. For arriving at the conclusi on as to
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whether all the ingredients of an offence, viz, dem and,
acceptance and recovery of the amount of illegal
gratification have been satisfied or not, the court must
take into consideration the facts and circumstances
brought on the record in their entirety. For the sa id
purpose, indisputably, the presumptive evidence, as is
laid down in Section 20 of the Act, must also be ta ken into
consideration but then in respect thereof, it is tr ite, the
standard of burden of proof on the accused vis-vis the
standard of proof on the prosecution would differ. Before,
however, the accused is called upon to explain as t o how
the amount in question was found in his possession, the
foundational facts must be established by the prose cution.
Even while invoking the provisions of Section 20 of the
Act, the court is required to consider the explanat ion
offered by the accused, if any, only on the touchst one of
preponderance of probability and not on the touchst one
of proof beyond all reasonable doubt. ”
12. It was submitted that the prosecution has a duty to prove the
foundational facts, however, in the present case th e facts of demand,
acceptance and recovery are absent. The Hon’ble Sup reme Court in the case
of B. Jayraj v. State of Andhra Pradesh 2014 Crl.L.J. 2433 in unequivocal
terms has held as under:
“7. Insofar as the offence under Section 7 is
concerned, it is a settled position in law that dem and of
illegal gratification is sine qua non to constitute the said
offence and mere recovery of currency notes cannot
constitute the offence under section 7 unless……
8. ….Mere possession and recovery of the currenc y
notes from the accused without proof of demand will not
bring home the offence under Section.
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9. ….Insofar as the presumption permissible to b e
drawn under Section 20 of the Act is concerned, suc h
presumption can only be in respect of the offence u nder
Section 7 and not the offences under Section 13(l)( d)(i)(ii)
of the act. In any event, it is only on proof of ac ceptance
of illegal gratification that presumption can be dr awn
under Section 20 of the Act that such gratification was
received for doing or forbearing to do any official act.
Proof of acceptance of illegal gratification can fo llow
only if there is proof of demand….. ”
13. It was, accordingly, submitted by the appellant tha t in B. Jayraj
(Supra), the Hon’ble Supreme Court acquitted the appellant t herein though
there was acceptance and recovery of money but the complainant turned
hostile and did not support demand. He further subm itted that the Hon’ble
Supreme Court in the case of P. Satyanarayana Murthy Vs. District
Inspector of Police , State of Andhra Pradesh & Anr. (2015) 10 SCC 152
held that the proof of demand of illegal gratificat ion, thus, is the gravamen
of the offence under Sections 7 and 13(1)(d)(i) & ( ii) of the Act and in
absence thereof, unmistakably the charge therefore, would fail. On the
matter of demand and acceptance inferential deducti on is not permissible in
law. Further held that in reiteration of the gold p rinciple which runs through
the web of administration of justice in Criminal ca ses. Moreover, in Sujit
Biswas vs. State of Assam , (2013) 12 SCC 406, it is held that suspicion,
however, grave, cannot take the place of proof and the prosecution cannot
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afford to rest its case in the realm of may be true but has to upgrade it in the
domain of “must be” true in order to steer clear of any possible surmise or
conjecture. It was held that the court must ensure that miscarriage of justice
is avoided and if in the facts and circumstances, t wo views are plausible,
then the benefit of doubt must be given to the accu sed.
14. Appellant further submitted that there is no demand or solicitation of
money from the complainant, namely, Gulshan Sikri, who specifically
deposed the truth before the court that the appella nt has not demanded any
money from him and explained to the Court during cr oss-examination that
he was being misguided by the CBI officials to file a false complaint against
the appellant for their vested interest. In additio n, appellant submitted that
no money was given by anybody to him nor money was recovered from his
person. He further submitted that no incriminating materials were recovered
during the raid at his home on 01.03.1996.
15. Regarding admissibility of the tape recorded voice, the appellant
submitted that the Hon’ble Supreme Court in the cas e of Nilesh Dinkar
Paradkar Vs. State of Maharashtra , (2011) 4 SCC 143 observed and laid
down the law / conditions of admissibility of tape recorded voice as
evidence in the court as follows:
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“30. In our opinion, the evidence of voice
identification is at best suspect, if not, wholly u nreliable.
Accurate voice identification is much more difficul t than
visual identification. It is prone to such extensiv e and
sophisticated tampering, doctoring and editing that the
reality can be completely replaced by fiction”. The y are
admissible in evident on satisfying the following
condition:
d. The voice of the person alleged to be speaking m ust
be duly identified by the maker of the record or by
others who know it.
e. Accuracy of what was actually recorded had to be
proved by the maker of the record and satisfactory
evidence, direct or circumstantial, had to be there so
as to rule out possibilities of tampering with the
record.
f. The subject-matter recorded had to be shown to b e
relevant according to rules of relevancy found in t he
Evidence Act. ”
16. The Hon’ble Court reiterated the condition laid dow n in the case of
Ram Singh & Ors. vs. Col. Ram Singh , 1985 SCC (Supp.) 611 that voice of
the speaker must be duly identified by the maker of the record or by others
who recognize his voice. In other words, it manifes tly follows as logical
corollary that the first condition for the admissib ility of such a statement is
to identify the voice of the speaker. Where the voi ce has been denied by the
maker it will require very strict proof to determin e whether or not it was
really the voice of the speaker. The accuracy of th e tape recorded statement
has to be proved by the maker of the record by sati sfactory evidence direct
2021:DHC:225CRL.A.692/2010 Page 11 of 35
or circumstantial. Every possibility or tempering w ith or erasure of a part of
a tape recorded statement must be ruled out otherwi se it may render the said
statement out of context and therefore, inadmissibl e. The statement must be
relevant according to the rules of Evidence Act. Th e recorded cassette must
be carefully sealed and kept in safe or official cu stody. The voice of the
speaker should be clearly audible and not lost or d istorted by other-sounds
or disturbances.
17. Appellant further submitted that the tape was not s ealed on the
spot/office of the appellant rather it was taken ou tside to Palika Bazar,
Connaught Place, New Delhi for the reasons best kno wn to them, on the plea
of preparation of copies by Inspector Mr. Thakran, however, he was not
examined during trial though he was a listed witnes s. The tape was handled
by unauthorized technician in the market whose name and shop was not
disclosed by the prosecution. The shadow witness Sh . Kailash Chander
stated in his deposition that the copy of the casse tte was prepared by Mr.
S.K. Pashin in contradiction to Mr. Thakran. Mr. D. D.Negi Inspector / TLO
in the 161 Cr.P.C. statement of Kailash Chander ref erred to tampering.
When the court of the Special Judge desired to hear the conversation, the
TLO / Inspector Mr. D.D. Negi did not produce anyth ing whereas, it was his
2021:DHC:225CRL.A.692/2010 Page 12 of 35
duty to deposit the original tape in the court itse lf. On this, Court observed
as under:
“No transcription of the conversation between the
accused P.C. Misra and the complainant has been
prepared nor the alleged cassettes containing the
conversation have been produced before me today .”
18. The Hon’ble Supreme Court in Para 32 confirm the ob servations in
the case of Mahabir Prasad Verma Vs. Dr. Surinder Kaur , 1982 (2) SCC
258 by observing as under:
“Tape recorded conversation can only be relied upon as
corroborative evidence of conversation deposed by a ny of
the parties to the conversation and in the absence of
evidence of any such conversation, the tape-recorde d
conversation is indeed no proper evidence and canno t be
relied upon ….”
19. The appellant submitted that the Trial Court has ov erlooked the
material evidence on record in his favour and the s ettled position of law,
therefore, impugned judgment and order of convictio n and sentence deserve
to be set aside and consequently, while allowing th e appeal, he be acquitted
from all charges.
20. Learned SPP for CBI, while opposing the present app eal, has
submitted that during trial CBI examined 17 witness es to prove entire
prosecution case. PW 1 (Sh. Jalaj Srivastava, Deput y Secretary to the
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Government of India) has proved the sanction order Ex. PW1/A and under
the transaction of ‘Business Rules’, the said witne ss was quite competent to
make and execute the order in the name of the Presi dent or the Union
Minister of State in the Ministry of Home Affairs, as is evident from the
Notification dated 03.11.1958 issued by Ministry of Home Affairs, New
Delhi. The Sanction Order had been passed after app lication of mind and
considering all the material and document which wer e placed before the
Sanctioning Authority including the transcription o f the audio cassette.
Further, Ex. PW1/A clearly shows that the complete facts constituting the
offence under Section 7 and 13(1)(d) r/w 13(2) of t he Act, were before the
Sanctioning Authority.
21. PW 2, Rajinder Singh, SSO Grade-I, CFSL had examine d the voice in
the cassette marked Q1 and S1 by auditory and voice spectrographic
technique and found that the voice in cassette Q1 a nd S1 are similar in
respect of their acouspic cues, narrowband characte ristics and fundamental
frequency, hence, gave report that the voice in cas sette Q1 and S1 are
probable voice of same person and proved the Ex PW2 /A.
22. PW 3, Rakesh Garg, Ld. MM, Tis Hazari Court proved the statement
of PW-9 Sh. Ravi Bhatt (Ex PW3/A) recorded under se ction 164 Cr.P.C.
2021:DHC:225CRL.A.692/2010 Page 14 of 35
after satisfying himself that PW 9 is giving statem ent voluntary. The
aforesaid witness further proved application Ex PW3 /B for recording
statement under section 164 Cr.P.C.
23. PW 4, Praveen Kumar, Ld. MM, Tis Hazari Court had g ranted the
pardon to the PW 9, Mr. Ravi Bhatt after cross ques tioning and considering
the document available before him and proved the do cuments i.e. Ex.PW4/A
to PW4/DA.
24. PW 5, Sh. Gulshan Kumar is complainant of this case who proved his
complaint Ex.PW5/A in which it was categorically me ntioned about the
demand made by the appellant. He further proved Ex. PW5/B and also
proved statement mark Ex.PW5/C. The aforesaid witne ss has proved the
recovery memo Ex.PW5/D and the transcript Ex.PW5/E.
25. PW 6, Rakesh Kumar, Head Clerk, Northern Railways, Baroda
House, New Delhi has proved the memo Ex.PW6/A which was prepared for
taking voice sample of appellant and he further pro ved one envelope
containing micro cassette and other meltrake casset te in cloth wrapper and
identified the signature at the cloth wrapper.
26. PW 7, Prithvi Raj Meena, Joint Commissioner (Transp ort), Govt. Of
NCT, Delhi has proved the Ex. PW5/D recovery memo. PW 8, Sh. Arjun
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Bulandani, Section Officer, NDMC has proved the pre and post trap
proceedings.
27. PW 9, Mr. Ravi Bhatt, PA of the P.C. Mishra became approver in this
case. He deposed before the Ld. Trial Court that th e complainant came on
the date fixed i.e. 29.02.1996 at about 11.00 am an d PW 9 informed the
appellant about the arrival of the complainant in h is matter for hearing. After
keeping the file before the officer, PW9 came out o f the room of the
appellant and appellant instructed him to send the complainant inside room.
After about 10 minutes, PW 9 again entered the room of appellant with
some other files and at that time he was saying to the appellant ‘ ek hazar
rupaye lekar mera kaam kar do ’. The appellant was saying ‘ itne mein kaam
nahi hoga, chaar hazar mein ho jayega, warna yeh ca se dismiss kar dunga ’.
At about 4.00 and 4.30 pm, PW 9 entered the room of the appellant
requesting him to hand over the files of the decide d cases as well as the files
in which dates have been given so that he could kee p them at their proper
places and appellant asked PW 9 to leave the file o f M/s Filtrex India Co. on
his table as Mr. Gulshan was to visit him in his of fice on the next day
alongwith Rs. 4000/-. The appellant also said to th e PW 9 ‘ unse leke ye
paise mujhe de dena ’. Next day at about 11.00 am or 12.00 noon, Sh.
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Gulshan came to PW 9 and informed that he wanted to see appellant and
PW 9 got up from his seat to inform the appellant a nd in the meantime Mr.
Gulshan also followed him to the room of the appell ant and requested him to
decide his case after taking Rs. 3000/-. The appell ant uttered the words ‘ yeh
bhindi bazar hain, jahan approach se kaam karana ch ahte ho. main apka
case dismiss kar dunga ’. Then PW 9 came out of the room of the appellant.
After about 5 minutes Mr. Gulshan came to PW 9 and handed over Rs.
4000/- saying ‘ yeh sahab ko de dena, baat ho gayi hain ’. Further submitted,
when the PW 9 was present in the room of the appell ant and he was
snubbing the complainant but the appellant also gav e signal to PW 9 to
accept the money. After taking the money from Mr. G ulshan, PW 9 kept the
same in his left pant pocket and when PW 9 was goin g to the room of the
appellant alongwith the money, he was trapped by th e CBI officials, namely,
Mr.Negi and Mr. Kapoor to the room of the appellant .
28. PW 10, Kailash Chand, (Retd.), the then Section Off icer, NDMC who
is independent witness and he proved the pre and po st proceeding and also
proved the recovery memo Ex.PW5/D, personal search memo of the
appellant Ex. PW8/A, tainted GC notes Ex.PW1/1 to P W1/40, bottles Ex.P-
2 and Ex.P-3, cloth wrappers Ex.P -and Ex.P-5 and p ant wrapper Ex.P-6,
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micro cassettes and audio cassettes Ex.P-7 and Ex.P -8, respectively,
containing specimen voice of the appellant, micro c assette and meltrake
cassette containing conversation recorded at the sp ot Ex.P-9 and Ex.P-10
respectively, cloth wrapper with which cassettes we re rapped Ex.P-11 and
Ex.P-12. The transcript was prepared vide memo Ex.P W5/B on that day in
the presence of aforesaid witness.
29. PW 11, Jagdish Singh, UDC, Labour Department has pr oved the
memo and the photocopies of the dispatch register E x.PW11/A and
Ex.PW11/B, respectively. PW 13, Sh. P. Nath, SSO-II , CFSL, CBI, New
Delhi has proved CFSL report Ex.PW13/A.
30. PW 14, Dharma Dev Negi, Sub-Inspector, Crime Branch New Delhi
was trap laying officer and proved entire pre and p ost trap proceedings. He
also proved the demand and acceptance by the appell ant, the FIR
Ex.PW14/A. Also proved Ex.PW5/B and Ex.PW5/D and f urther proved the
Ex.PW14/C.
31. PW 15, Sh. S.K. Peshin, SP, CBI, EOU-VIII, CBI, New Delhi was
appointed to supervise the trap operation. The witn ess proved the pre and
post trap proceeding and also categorically stated the recovery of the amount
from Mr. Ravi Bhatt and the statement that he recei ved that bribe amount on
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the instruction of the appellant. He further proved the recovery memo
Ex.PW5/D and personal search memo of the appellant Ex.PW8/A.
32. PW 17, Sh. A.K. Kapoor, (Retd.), the then Deputy Ce ntral
Intelligence Officer, Delhi had done the investigat ion and recorded the
statements. He proved the recording of specimen voi ce of the appellant
before the two independent witness as memo Ex.PW6/A and prepared the
transcript Ex.PW5/E vide memo Ex.PW8/B, seizure mem o Ex.PW11/A,
pardon application Ex.PW4/DA. This witness categori cally stated that the
cassettes were sealed when he received from the Mal khana for preparation
of transcript and again sealed both the cassettes i n presence of the witnesses.
He further proved the pardon application Ex PW17/A.
33. Statement of appellant recorded under section 313 C r.P.C. wherein he
accepted the date of hearing of the matter of the c omplainant was
28.02.1996 and reserved the same for the order. He further accepted the
recovery of bribe amount from the left pocket of Mr . Ravi Bhatt.
34. DW 1, Sh. Omkar was examined as defence witness. Th e aforesaid
witness could not disprove the prosecution case.
35. Learned SPP for CBI submitted that from bare perusa l of documents
on record specially written complaint Ex. PW5/A lod ged by the
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complainant, PW 5 clearly shows demand made by the appellant for passing
favourable order in favour of the complainant. Afte r receipt of aforesaid
complaint Sh. Dharamveer Negi, Sub Inspector, Crime Branch, Delhi (PW
14) secretly verified the genuineness of the compla int from his secret
sources and he found the complaint to be genuine. T hereafter, trap was laid.
PW 9 Mr. Ravi Bhatt, who later became approver and appellant were
arrested. The pre tarp and post trap proceedings ha ve been proved by the
prosecution by Ex.PW5/B, Ex. PW5/C, Ex. PW5/D and E x. PW14/B.
36. The demand and acceptance was further proved from t he deposition
of PW 9 and PW 14. PW 9 (Mr. Ravi Bhatt) has proved entire case on
material aspects. PW 14 in his deposition has categ orically stated “ I was
hearing the conversation through earphone and I hea rd that the
complainant was requesting the accused for reducing the amount of bribe
from 4,000/- to 3,000/-. I also heard the accused d irected the complainant to
hand over the bribe to his PA. ”
37. Further submitted that despite the fact that PW 5 t urned hostile, the
prosecution proved the entire case beyond reasonabl e doubt and hence, the
Trial Court vide judgment dated 24.05.2010 convicte d the appellant.
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38. To strengthen his arguments, learned SPP for CBI ha s relied upon the
judgment passed in the case of Madhu Koda vs. State
MANU/DE/1079/2020 wherein this Court made observati ons and the
relevant paras of the said judgment are as under:
“…3. The appellant has been convicted by the impugn ed
order in a case captioned “CBI v. M/s. Vini Iron an d Steel
Udyog Limited and Ors.” arising from FIR No. RC 219
2012 E 0012. The Trial Court found that the appella nt had
abused is position as a public servant in order to obtain the
allocation of Rajhara Coal Block in favour of M/s. Vini Iron
and Steel Udyog Limited (hereafter ‘VISUL’), withou t any
public interest.
…. 7. Mr. R.S. Cheema, learned senior counsel
appearing for CBI countered the aforesaid submissio ns. He
stated that the provisions of Section 13(1)(d) of t he PC did
not necessarily require establishing that any illeg al
gratification had been demanded or paid to the publ ic
servant. He relied upon the decisions of Supreme Co urt in
Neera Yadav v. CBI: MANU/SC/0931/2017 : (2017) 8 SC C
757; C.K. Jaffer Shareiff v. State: MANU/SC/0960/20 12 :
(2013) 1 SCC 205; R. Venkatkrishnan vs. CBI:
MANU/SC/1411/2009 : (2009) 11 SCC 737; and State of
Rajasthan vs. Fatehkaran Mehdu: MANU/SC/0111/2017 :
(2017) 3 SCC 198.
…..30. Although the above proposition appears attra ctive,
a closer examination of the aforesaid decisions cle arly
indicate that the same cannot be read as authoritie s for the
proposition that demand of an illegal gratification is a
necessary condition for convicting a public servant for an
offence of misconduct, as contemplated under Sectio n
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13(1)(d) of the PC Act. This is for two reasons. Fi rst of all,
the plain language of Section 13(1)(d) of the PC Ac t does
not indicate that a demand of illegal gratification by the
public servant is an essential ingredient of an off ence of
misconduct.
…. 35. In this case also, the prosecution had neither
established nor was required to establish that the accused
had demanded or obtained any illegal gratification for
obtaining for any person any valuable thing or pecu niary
advantage.
36. Thus, the contention that it is necessary for t he
prosecution to establish a demand for illegal grati fication
for sustaining the allegation of an offence under S ection
13(1)(d) of the PC Act as in force prior to 26th Ju ly 2018, is
without merit….. ”
39. It was submitted by learned SPP that the appellant has sought
acquittal on the ground of minor discrepancies in t he investigation. The
Hon’ble Supreme Court in case of Zindar Ali SK vs State of West Bangal
Ors. MANU/SC/0141/2009 has categorically held that defe nce cannot take
advantage of bad investigation, when there is a cli nching evidence.
40. Further submitted that the appellant has also point ed out some minor
contradictions for seeking acquittal. It is settled proposition of law that
minor contradictions in prosecution case can be ign ored if cogent evidences
are available on record for conviction of the accus ed. He relied upon the
judgments passed in case of Krishna Mochi & Ors vs State of Bihar
2021:DHC:225CRL.A.692/2010 Page 22 of 35
MANU/SC/0327/2002 and Girwar Singh & Ors. Vs CBI
MANU/DE/4551/2015.
41. Further the Supreme Court in case of Subramanian Swamy vs
Manmohan Singh & Ors. MANU/SC/0067/2012 held as under:
“Today, corruption in our country not only poses a g rave
danger to the concept of constitutional governance, it
also threatens the very foundation of Indian democr acy
and the Rule of Law. The magnitude of corruption in our
public life is incompatible with the concept of a s ocialist,
secular democratic republic. It cannot be disputed that
where corruption begins all rights end. Corruption
devalues human rights, chokes development and
undermines justice, liberty, equality, fraternity w hich are
the core values in our preambular vision. Therefore , the
duty of the Court is that any anti-corruption law h as to be
interpreted and worked out in such a fashion as to
strengthen the fight against corruption. That is to say in a
situation where two constructions are eminently
reasonable, the Court has to accept the one that se eks to
eradicate corruption to the one which seeks to perp etuate
it. ”
42. While concluding his arguments, learned SPP submitt ed that from
bare perusal of evidence on record it is evident th at CBI has duly proved
entire prosecution case with the help of oral and d ocumentary evidences.
The grounds raised by the appellant are against the legislative intent of
Prevention of Corruption Act and further the same a re against the spirit and
mandate of the law laid down by Hon’ble Supreme Cou rt. Accordingly,
2021:DHC:225CRL.A.692/2010 Page 23 of 35
learned SPP for CBI prayed that in the light of abo ve-mentioned facts and
circumstances of the present case, appeal filed by the appellant may be
dismissed.
43. I have heard the appellant and learned SPP for resp ondent/CBI and
perused the material on record.
44. The approver / PW-9 in his examination-in-chief sta ted after about 10
minutes, he again entered the room of appellant wit h some other files and at
that time the owner Mr. Gulshan was saying to the a ppellant “ ek hazar
rupaye lekar mera kaam kar do ”. The appellant was saying ” itine mein kaam
nahi hoga’ chaar hazar mein ho jayega, warna yeh ca se dismiss kar dunga “.
The defence counsel cross-examined the approver in respect of all
deposition and confronted. It is amply clear that t he approver is not a reliable
witness and in fact he was not present in the room of the appellant.
45. PW 5 did not authenticate the contents of his compl aint dated
29.02.1996. He deposed that “I took my complaint to SP, CBI and met him, I
told the SP, CBI that my Sales Tax appeal with rega rd to my firm M/s.
Filtrex India is pending before Shri Mishra, accuse d present in the Court
today. I also told SP that PA of Shri Mishra was de manding Rs. 8000/- to
Rs. 10,000/- for paying the same to the officer” . Further, in his cross-
2021:DHC:225CRL.A.692/2010 Page 24 of 35
examination PW 5 stated that “my Complaint was dictated by Mr. Negi
again said by Mr. Peshin of CBI that they are not m eant for clerical staff
and I should name the official in the complaint. Ac cused did not demand the
money directly from m e”. Since the SP Mr. Kaumudi was not examined by
the prosecution and the complainant PW 5 deposed ag ainst his own
complaint /FIR and the PW 10 in his cross-examinati on stated in the First
para as follows:
“The Complaint had already been written and it was o nly
shown to us. I do not know the name of the inspecto r who
is holding their complaint .”
46. On cross-examination, by PP of CBI, the witness, PW 5, stated (at
page 3) “it is correct that I met P.C. Misra on 28.02.96 an d after
considering my documents he reserved the order, but it is not so that he
demanded Rs.4000/- from me for favorable order in m y case .”
47. In cross-examinations by the defence counsel, PW 5 stated that
accused did not demand the money directly from him. Regarding demand
during trap, PW 5 stated that the appellant did not demand any money from
him. Further, he stated in his examination-in-chief that on 10.05.05,
appellant was saying “ Kya hum isee kam keliye baithe hai…. App bahar
jaiye….. mera dimak kharab mat karo ”.
2021:DHC:225CRL.A.692/2010 Page 25 of 35
48. This amply demonstrates that there is no demand, du ring pre-trap or
during trap, by the appellant. Thus, he neither dem anded nor accepted
money. On the other hand, PW9 Ravi Bhatt had demand ed and accepted the
gratification.
49. Moreover, PW 5/ the Complainant Shri Gulshan Sikri in cross-
examination stated as follows:-
“On the day of trap I remained in the room of accuse d
for about 2-3 minutes. Shri Ravi Bhatt, did not ent er the
room of the accused during those three minutes. He
remained in his own room. ”
50. PW 8/Shri Arjun Bulandni, independent witness state d in his
examination-in-chief as follows:
“The Complainant entered the room of P.C. Misra alon e
and I remained outside the room. ”
51. PW 10, Shri Kailash Chandra, shadow witness stated on page 2 of his
examination-in-chief that “Complainant alone entered the room of Asstt.
Commissioner. He was also directed by Mr. Peshin th at after entering the
room, he should talk to the concerned person and th e moment bribe is
accepted, he should give a signal by coughing and t hen they will enter. The
complainant came out of the room and entered anothe r room which was of
2021:DHC:225CRL.A.692/2010 Page 26 of 35
the PA. He was able to see from his seat that the c omplainant paid the
money to the PA” .
52. PW 15/Shri S.K. Peshin, PP, CBI stated in his depos ition in
examination-in-chief, “thereafter complainant Shri. Sikri went inside til e
office of the accused and came out after sometime. After sometime again he
went inside the room of accused (present in the Cou rt) and after sometime
came out and directly proceeded to the room of one persons subsequently
identified as Ravi Bhatt, who was Reader of accused . Both complainant and
Ravi Bhatt were seen moving towards the room adjace nt towards the room
of Shri Ravi Bhatt.”
53. In the bail order dated 02.03.1996, the Court of Sp ecial Judge noted in
Para 2 of the order as follows:-
“Accused P.C. Misra allegedly directed the complain ant
to pay the bribe amount to his reader Ravi Bhatt UD C
(co-accused). Ravi Bhatt accused was sitting in ano ther
room. The complainant allegedly gave the bribe mone y
amounting to Rs. 4000/- to Ravi Bhatt, accused. ”
54. However, PW 14, Shri D.D. Negi, falsely stated in e xamination-in-
chief that “complainant first contacted Mr. Bhatt, PA of accus ed who took
the complainant in the room of the accused P.C. Mis ra”. This point got
2021:DHC:225CRL.A.692/2010 Page 27 of 35
confronted in cross-examination by the defence coun sel Mr. Sunil Mehta as
follows:
“It is correct that the complainant at first gone to the
room of the PA of the accused, but it is incorrect that
thereafter he came back to him. The witness has bee n
confronted with the portion A to A of ex. PW-5/D wh ere it
is recorded that the complainant came back after
sometime and informed that Mr. Ravi Bhatt, UDC/read er
was in his room (Ravi Bhatt’s) and he shall be proc eeding
inside the room of P.C. Misra shortly. The witness is
confronted with potion of A to A of statement Ex.PW -14/C
and witness admits the correctness thereof. I did n ot
enquire from the complainant as to why he did not c ome
to the room of the P.C. Misra for handing over the money
and also about his purpose of visit to the room of Ravi
Bhatt. It is correct that in the recovery memo Ex.P W5/D
it was not mentioned that the complainant first con tacted
Mr. Bhatt, PA to the accused who took me to the roo m of
accused, P.C. Misra. It is correct that I have not
mentioned in the recovery memo, Ravi Bhatt was seen
going inside the room of the accused, P.C. Misra. ”
55. On the basis of the deposition /statements discusse d above, it is
proved beyond shadow of doubt that Shri Ravi Bhatt/ PW 9 was never inside
the room of the appellant while PW 5 was present in the room of the
appellant. Therefore, the statement of PW 9 on the issue of his presence in
the room of the accused on 01.03.1996 during trap i s totally false, not
corroborated in material particulars from independe nt source.
2021:DHC:225CRL.A.692/2010 Page 28 of 35
56. In case of Javed Masood Vs. State of Rajasthan , AIR 2010 SC 979,
the Hon’ble Supreme Court has held “Witness not declared hostile by
prosecution – His evidence is binding on prosecutio n” . Ld. Prosecutor never
declared PW 8, 10 & 15 hostile, neither cross-exami ned on this point nor
made any suggestion to PW 5. Therefore, it is prove d that PW 9/approver
was never present in the room of the appellant duri ng the talk of PW 5 with
the appellant. Since PW 9 was not present in the ro om of the appellant, there
is no question of direction from him to accept brib e from complainant.
Moreover, the PW 9 cannot be an accomplice nor co-c onspirator. All his
deposition statement is neither relevant nor admiss ible u/s 10 of the
Evidence Act. In fact, the same is barred u/s 60 of the Evidence Act as it is
only hearsay. Therefore, the testimony of the appro ver is liable to be
rejected only on this ground.
57. Regarding recovery, PW 9 in his application before the Special Judge
on 02.03.1996 denied recovery from him and PW 14/TL O deposed that
money was recovered from the drawer of the table of PW 9. Again he stated
that the trap money was recovered from the left sid e pocket of the coat and
in cross-examination stated that money was recovere d from the left side pant
pocket. Therefore, according to the PW/TLO and stat ement of PW 9 before
2021:DHC:225CRL.A.692/2010 Page 29 of 35
the Special Judge that there was no recovery. The r ecovery of money
becomes seriously doubtful. The TLO admitted in his cross-examination by
learned PP that he is a confused person.
58. It is pertinent to mention here that in this case f our prosecution
witnesses have been declared hostile by Mohd. Sakil , Prosecutor of the CBI,
as under:
PW-5: Shri Gulshan Sikri/Complainant
PW-7: Shri P.R. Meena, Joint Commissioner, Transpor t
PW-12: Shri H.D. Mahi, Ex. Asstt. Commissioner, Foo d & Supply
Deptt.
PW-14 Shri D.D. Negi, Inspector CBI/TLO
59. Further important to mention that the prosecution d id not examine
Shri V. Thkaran, Inspector, CBI (listed Witness No. 14), Shri T.V.
Kuriahose, Sub Inspector, CBI (listed witnessed No. 15) also the CBI did not
examine the person who prepared copy of the tape of the voice recording in
Palika Bazar Market, Connaught Place, New Delhi and also the Malkhana
Mohair who kept the recorded typed in custody. In additio n, the SP, CBI
Shri Kamadi Komal who ordered registration of FIR R C No. 15(A) 96, was
2021:DHC:225CRL.A.692/2010 Page 30 of 35
also not examined. All these factors are against th e prosecution and creating
serious doubts on the veracity of the prosecution s tory.
60. In view of above, the Ld. Special Judge committed e rror of law
getting corroboration for the deposition of PW 9/Ap proval for his earlier
statement under Section 164 Cr.P.C., which is prohi bited under law. The
approver stands as a special guilty witness and hen ce, Sections 145/157 of
Evidence Act is not applicable.
61. In addition to above, PW 17, A.K. Kapur, Inspector, CBI/IO in cross-
examination stated that “I got this application Ex. PW-17/A typed in CBI
Office at Tis Hazari. I did not consult the public prosecutor before typing
this application. I also did not consult the then S P. The name of the Court is
mentioned as the Court of Sh. Ajit Bharioke, Speica l Judge, CBI in the
application as the same was the concerned court. I am not aware if there is
special provision for tender of pardon in PC Act, 1 988. It is incorrect to
suggest that I have illegally mentioned Section 306 Cr.P.C. in the
application to misguide the Court. I do not remembe r if I consulted the
Petitioner or not before filling the application. I do not remember if I had
brought the case file of this case while making the application before the
Special judge for grant of pardon. I do not remembe r if I had shown the
2021:DHC:225CRL.A.692/2010 Page 31 of 35
·case dairy to the Judge or not”. This shows how the CBI Inspector who
enforces the PC Act is not aware of Section 5(2) wh ere the Special judge has
exclusive jurisdiction for grant of pardon. Since t his application is typed by
him and without the assistance of the prosecutor, h e filed personally in the
court of Special Judge. Thus, it seems that he had vested interests in getting
pardon to Sh. Ravi Bhatt, UDC who is caught red han ded.
62. Since there is no recovery from the appellant, pres umption U/s 20 of
the Act regarding acceptance of bribe could not be raised against him. There
was neither any demand nor acceptance or recovery f rom the appellant.
Hence, all the ingredients of an offence U/s 7 and 13(1)(d) could not be
satisfied. The conviction order is prima facie unlawful as Section 20 of the
Act is not invoked.
63. In addition to above, in the instant case PW 5 is b ribe giver and he is
an abettor for the offence of PW 9 for acceptance o f bribe. The appellant
could not give a direction to PW 5 to give money to somebody else. PW 9
could not be the agent/accomplice of the appellant since he is also a
government servant. PW 5/Complainant stated in exam ination-in-chief, “I
told that PA yeh sahab ne diya paise rekh lo “. But he stated while being
examined by PP while playing the cassette ” yeh chhar hazar rekh lo mere
2021:DHC:225CRL.A.692/2010 Page 32 of 35
file dekh lena ” but the PW 9/ approver stated in examination-in-c hief that
the complainant handed over four thousand rupees sa ying “ yeh paise shaab
ko de dena, baat ho gaye hain ”. The approver/ PW 9 while being examined
by PP stated that the talks between him and PW 5 wa s not audible. Thus,
there is no sentence/talk on behalf of PW 9. Moreov er, the statements of PW
5 are contradictory to each other and there is no c orroboration of any kind.
Thus, this is a material contradiction and cannot b e relied upon to see the
transaction between PW 5 and PW 9.
64. Since the appellant did not demand any money from P W 5, there was
no question of having an accomplice to receive mone y, as the complainant
met the appellant and got the opportunity to give m oney when he was alone
in his chamber, and talk to complainant.
65. In the case of Surjit Biswas Vs. State of Assam , (supra), the Supreme
Court observed in para 6 as under:
“6. Suspicion, however grave it may be, cannot take the
place of proof…..”
66. Further observed in Para 7 & 8 that if two views ar e possible the view
which is favourable to the accused should be adopte d. This principle has a
special relevance in cases where in the guilt of th e accused is sought to be
2021:DHC:225CRL.A.692/2010 Page 33 of 35
established by circumstantial evidence. The circums tances should be of a
conclusive nature and tendency.
67. The case is filed by CBI U/ s 7 and 13 (1)(d) of PC Act, 1988 against
the appellant. This Court in the case of L.K. Advani Vs. CBI , 1997 (4)
Crime 1 analysis Section 7 in Para-49 & 50 and held as under:
“49…… a duty has been cast on the shoulders of the
prosecution, for framing of a charge under Section 7 of
the Act, to prima facie show that a public servant
accepted or obtained any gratification other than l egal
remuneration as a motive or reward for doing or
forbearing to do any official act by way of favour or
disfavor to; any person in the discharge of his off icial
duties”.
50. The meaning of the word “accept” as per
Oxford English Dictionary Vol. 1, page 70 is “to ta ke or
receive (a thing offered) willingly, or with consen ting
mind; to take formally (what is offered) with
contemplation of its consequences and obligations”. On
the other hand, the word “Obtain” as per Oxford Eng lish
Dictionary Vol. X (page 669) would mean (a) to come
into possession or enjoyment of (something) by one’ s own
effort, or by request; (b) to procure or gain, as t he result
of purpose and effort; hence, generally to acquire get.
Thus both the words “accept” ‘and obtaining signify an
active conduct on the part of the person in accepti ng or
obtaining a thing. Thus if something is thrust into the
pocket of a person without his consent and without a
request from his side it would not be an acceptance or
obtainment of the said thing on the part of the per son in
whose pocket the same is inserted or thrust, within the
meaning of Section 7 of the Act. ”
2021:DHC:225CRL.A.692/2010 Page 34 of 35
68. The demand and acceptance can be proved beyond reas onable doubt
only if there is recovery which is a direct evidenc e of bribery. In the instant
case, it is admitted by the CBI that there is no re covery from the appellant.
Consequently, demand and acceptance become doubtful . The complainant /
PW 5 became hostile to the prosecution case and did not support demand.
The trial court also did not invoke Section 20 of t he PC Act. Without
invoking Section 20 there cannot be a conviction U/ s 7 and consequently,
corollary conviction U/s 13(1)(d) cannot be upheld.
69. In view of above evidence on record in favour of th e appellant and the
settled position of law, I am of the considered opi nion that the prosecution
has failed to prove its case against the appellant beyond a reasonable doubt.
Moreover, learned Trial Court has overlooked the ma terial on record in
favour of the appellant. Thus, the impugned judgmen t deserves to be set
aside.
70. Accordingly, the appeal is allowed and impugned jud gment dated
24.05.2010 and order on sentence dated 26.05.2010 a re hereby set aside.
Consequently, appellant is acquitted from the all t he charges.
71. The appeal stands accordingly disposed of.
2021:DHC:225CRL.A.692/2010 Page 35 of 35
72. Copy of this judgment be communicated to the Trial Court and Jail
Superintendent concerned for necessary information and compliance.
73. The judgment be uploaded on the website of this Cou rt forthwith.
(SURESH KUMAR KAIT)
JUDGE
JANUARY 21, 2021
rk/r
2021:DHC:225