Advocates v. Mr.Premtosh K. Moshra, Mr.Praphull

Judgment

1. The present appeal has been filed against the judgement of conviction dated 03.05.2002 and order on sentence dated 06.05.2002 passed by Special Judge, Delhi in Criminal Case No. 10/2000 arising out of RC No.7/91 - SIU – VIII/CBI/N. Delhi registered under Sections 7/13(1)(d) read with 13(2) of Prevention of Corruption Act, 1988 (hereinafter, referred to as „PC Act‟). Signature Not Verified Digitally Signed By:GAUTAM ASWAL Signing Date:20.02.2025 12:40:34 CRL.A. 407/2002 Vide the impugned judgement, the appellant was convicted for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of PC Act. Further, vide impugned order on sentence, he was directed to undergo rigorous imprisonment for a period of five years along with fine of Rs. 5,000/- on each count, in default whereof, he was directed to undergo further rigorous imprisonment for a period of six months. Both the sentences were directed to run concurrently.

2. The facts in nutshell are that as per prosecution case, the complainant Afrik Singh claiming himself to be the managing director of M/s Afrik Travels (P) approached CBI office on 26.09.1991 with the complaint of demands of bribe by the appellant who was posted as the SHO of PS IGI Airport. It was alleged that on 27.08.1991, the complainant was called by the appellant at his residence wherein he was informed of his involvement in seven criminal cases relating to forgery of passports pending investigation at

PS IGI, vide FIR Nos. 432/91 to 438/91. The appellant demanded Rs. 3 lakhs for not arresting him. The complainant paid the demanded amount at appellant‟s residence on 28.08.1991. It was alleged that the complainant was arrested on 09.09.1991. Subsequently, the appellant again called the complainant to his residence on 24.09.1991 and informed him about passing of externment order. The appellant demanded Rs. 2 lakhs for cancellation of the externment order. After registering the case, a trap was arranged by DSP R.R. Sahai. Two independent witnesses, namely Manmohan Singh and Surjit Gandhi were joined. The complainant arranged Rs. 2 lacs in cash in the form of 300 & 500 GC notes in the denomination of Rs. 500/- and Rs. 100/- respectively. Signature Not Verified Digitally Signed By:GAUTAM ASWAL Signing Date:20.02.2025 12:40:34 CRL.A. 407/2002 The number of the GC notes was noted and they were treated with phenolphthalein powder in the pre-trap proceedings. They were put in one polythene bag and given to complainant to hand over the same on demand by the accused. On 27.09.1991, the complainant along with his driver Daljit Singh and independent witness Manmohan Singh travelled complainant‟s house in his car. The independent witness was dropped off before they reached the appellant‟s house. The complainant was instructed to record the conversation on the mini cassette.

3. It is further alleged that though on the appellant‟s demand, the complainant handed over the polythene bag containing the sum of Rs.2 lakhs but the appellant demanded "50 more" for cancellation of the externment order. The complainant on coming out of the house gave the pre appointed signal however, the appellant left in a Maruti van bearing No. DDV 4885 towards Punjabi Bagh Club. He was followed and intercepted by the complainant on road no.77 in front of plot no. 31/77. The appellant dropped the polythene bag containing the money on the road and tried to run away. The witness Manmohan Singh picked up the polythene containing the money. The appellant‟s hand wash was taken at the spot. During investigation, transcript of the conversation recorded in the cassette was prepared and filed with charge sheet.

4. In the trial, a total of 20 witnesses were cited by the prosecution to prove its case. The complainant Afrik Singh Lobana was examined as PW1. The independent witnesses Mr. Manmohan Singh and Surjit Gandhi were examined as PW2 and PW4 respectively. DSP R.R. Sahai, who was the Trap Laying Officer (TLO), was examined as PW5. Inspector S.B. Shankar was Signature Not Verified Digitally Signed By:GAUTAM ASWAL Signing Date:20.02.2025 12:40:34 CRL.A. 407/2002 examined as PW19. Inspector Roy Alexander was examined as PW20. Besides above, the other witnesses were formal in nature relating to various aspects of investigation. On the other hand, the appellant, in his statement recorded under Section 313 Cr.P.C. claimed that he was innocent and claimed false implication by the complainant, CBI and one S.S. Bhatnagar. In his defence, the appellant had examined six witnesses. Appellant alleged prior enmity with CBI officials and in this regard, examined one H.C. Ved Prakash as DW5.

5. Pertinently, the appellant was charged for two instances of the alleged demand i.e., first demand of Rs 3 lacs on 28.08.1991 and later, the second demand of Rs 2 lacs for which the trap was laid. The Trial Court vide the impugned judgment however, concluded that the CBI failed to prove the first demand but the latter demand of Rs. 2 lacs was proved.

6. Mr. Luthra, learned Senior Counsel appearing on behalf of the appellant submitted that the prosecution miserably failed to prove even the foundational facts and in light of the decision of the Constitutional Bench of the Supreme Court in Neeraj Dutta v. State (Government of NCT of Delhi)1, the presumption of fact with regard to the demand and acceptance of illegal gratification could not have been made by way of inference. Even otherwise, the externment order which is stated to be the very basis of the alleged demand never existed. He submits that neither the complainant, nor any of the independent witnesses have supported the prosecution case on any material aspect. None 1 Neeraj Dutta v. State (Government of NCT of Delhi) , reported as (2023) 4 SCC 731 Signature Not Verified Digitally Signed By:GAUTAM ASWAL Signing Date:20.02.2025 12:40:34 CRL.A. 407/2002 of the witnesses stated that they heard the appellant demand money. In respect of the audio tape containing the alleged demand, it is submitted that the guidelines laid down by the Supreme Court in Ram Singh and Others Vs. Col. Ram Singh,2 reported as 1985 (Supp) SCC 611 have been violated and the prosecution also failed to establish the identity of the voices recorded in the cassette. Further, the authenticity and admissibility of the recorded conversation is also doubtful as the sealed tapes were opened without orders of the Court. There had also been numerous lapses in its storage and handling.

7. The allegation of acceptance of GC notes by the appellant is also doubted by contending that the GC notes were not seized form the appellant‟s possession and further the circumstance of the wash of his hand turning pink is of no substance as the appellant never touched the GC notes. It was further contended that neither any site plan was prepared of the appellant‟s house, nor any independent witness was joined for the post trap proceedings. Reliance was placed on testimony of DW1 to argue that the place where the post trap raid took place does not exist.

8. Lastly, it is submitted that the appellant was subjected to a witch-hunt and malafide investigation by the CBI officials who were having a grudge with him because of a prior quarrel relating to case of one Gurmit Kaur, which CBI wanted to take over without registration of the case. It was also contended that it was unusual for the SIU-VIII to investigate trap cases as that was the domain of Anti-Corruption Branch (ACB) and no explanation has been provided for the same. 2 Ram Singh and Others Vs. Col. Ram Singh, reported as 1985 (Supp) SCC 611 Signature Not Verified Digitally Signed By:GAUTAM ASWAL Signing Date:20.02.2025 12:40:34 CRL.A. 407/2002

9. Per contra, learned SPP for CBI defended the impugned judgment. Relying on Neeraj Dutta (Supra) it was argued that circumstances preceding and succeeding the trap can be taken into account to prove the offence even in cases where the complainant and witnesses turned hostile. He submits that though the independent witnesses have not supported the prosecution story in its entirety, the material aspects of the raid stand corroborated. The discrepancies if any, are not fatal to the prosecution case. It is further submitted that the case of the prosecution has been proved beyond doubt by the virtue of the depositions of TLO, PWI5/Lik Ram, PW18/K.C. Sharma, PW19/S.B.Shankar and PW20/Roy Alexander who were all parties in the raid and even uncorroborated evidence of police officers can be relied upon by the Court. Reliance in this regard has been placed on the decision of Supreme Court in Hazari Lal v. State (Delhi Admn.)3. 10. Relying on M. Narsinga Rao v. State of A.P.,4 it was contended that the complainant was won over by the appellant. With respect to the audio tape, it is submitted that the same was transcribed into a memo by PW18/K.C. Sharma at the spot and signed by complainant and PW2/Manmohan Singh, who later, in trial admitted their signatures on the same. Further, the tape was also transcribed in court by the complainant and PW18 and no major discrepancies were found in the two versions. Both the complainant and appellant had refused to give specimen of their voice samples despite the prosecution seeking the same. The non-existence of an externment order does not affect the prosecution case as for establishing an offence under PC Act, it is not necessary that the accused actually intended