IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment indifferent on:      11.03.2015
Judgment delivered on:      19.04.2016

Crl.A. 263/2009

GIRWAR SINGH                                             ….. Petitioner

Through:      Mr. R.N. Mittal, Sr. Adv. with Mr.

Abhijeet Singh, Advocate.

versus

C.B.I.                                                 ….. Respondent

Through:      Mr. Narender Mann, SPP with Mr.Manoj Pant and Ms. Utkarsha Kohli,Advocates.

       Crl. A. 279/2009

LALA RAM                                               ….. Petitioner

Through:      Mr. Tanveer Ahmed Mir and Ms.Megha Gurnani, Advocates.

versus

C.B.I.                                                 ….. Respondent

Through:      Mr. Narender Mann, SPP with Mr.Manoj Pant and Ms. Utkarsha Kohli,

CORAM: HON’BLE MR. JUSTICE VIPIN SANGHI

Crl263/2009 Crl. A. 279/2009

VIPIN SANGHI, J.

1. These dual appeals have been elite by a dual appellants away underneath Section 374 Criminal Procedure Code, 1973 (Cr PC) to asperse a common visualisation antiquated 21.03.2009 and sequence of visualisation antiquated 23.03.2009 inspected by Learned Special Judge, in CC No. 30/2003 outset out of F.I.R No. RC-DAI-2002(A)-0035 underneath Section 120-B, Indian Penal Code, 1860 (IPC) review with Section 7 and Section 13(2) review with Section 13(1)(d) of Prevention of Corruption Act, 1988 (PC Act). Appellant Girwar Singh – a appellant in Crl.A. 263/2009 (hereinafter referred as ‘Appellant No. 1’), was condemned to bear Rigorous Imprisonment (‘R.I.’) for one year with excellent of Rs. 5,000/-, and in default of arrangement of fine, to bear Simple Imprisonment (‘S.I.’) for 7 days for crime punishable underneath Section 120-B IPC. He was serve condemned underneath Section 7 of a PC Act to bear R.I. for a duration of dual and a half years and to compensate a excellent of Rs. 15,000/-, and in default of arrangement of fine, to bear S.I. for 15 days. He was condemned to R.I. for 3 years and to compensate a excellent of Rs. 20,000/-, and in default of arrangement of fine, to bear S.I. for 15 days for crime punishable underneath Section 13(2) review with Section 13(1)(d) of a PC Act. Appellant, Lala Ram – a appellant in Crl.A. 279/2009 (hereinafter referred to as ‘Appellant No. 2’), was condemned to bear R.I. for one year and a excellent of Rs. 5,000/-, in default of arrangement of fine, serve S.I. for 7 days for offences punishable underneath Sections 120-B IPC. He was serve condemned underneath Section 7 of a PC Act to bear R.I. for a duration of dual years and to compensate a excellent of Rs. 10,000/-, and in default of arrangement of fine, to bear S.I. for 15 days. He was condemned to R.I. for dual and a half years and to compensate a excellent of Rs. 15,000/-, and in default of arrangement of fine, to bear S.I. for 15 days for crime punishable underneath Section 13(2) review with Section 13(1)(d) of a PC Act. All a sentences of appellant no. 1 and appellant no. 2 were destined to run concurrently.
2. The contribution in both a appeals arise out of a same FIR (Ex. PW-14/A) antiquated 03.06.2002. Appellant no. 1 Girwar Singh was a Senior Audit Officer, and appellant no. 2 Lala Ram was an Assistant Audit Officer operative in a Sales Tax department.
3. The contribution as enumerated in a charge-sheet are that a prosecution/C.B.I. purebred a box on 03.06.2002 on a basement of a created censure of Sh. Rajpal Katyal (PW-3), Proprietor, M/s. Kailash Engineers (hereinafter referred to as ‘Firm’). He inter alia staid that he was carrying a business of gangling tools of diesel generator sets and a organisation was purebred with Delhi Sales Tax Department. An review celebration of Accountant General of Audit, Delhi was doing review of Sales Tax Department from 30.04.2002 to 27.05.2002. Complete folder of M/s. Kailash Engineers was handed over to Audit Party on 15.05.2002. On 23.05.2002, his Accountant Sachin Arora was called by Audit Branch of Sales Tax Department, where he met appellant no. 2, Assistant Audit Officer, who asked Sachin Arora (PW-5) to allow some papers for a year 1996-97 and 1997-98. Appellant No. 2 serve supportive that a squeeze orders have not been enclosed with “C” forms, and ST-I form was not enclosed with a relapse for a year 1997-98. On 27.05.2002, Rajpal Katyal sent a papers by Sachin Arora nonetheless appellant no. 2 demanded Rs. 15,000/- for usurpation a papers and staid that he would, otherwise, lift review objections.

Thereafter, on 30.05.2002, Rajpal Katyal again sent Sachin Arora to Sales Tax Office to enquire a purpose of approach of money. After visiting Sales Tax office, appellant no. 2 introduced Sachin to appellant no. 1, Senior Audit Officer, who told that they have complicated a box and found that one ST-I Form in relapse of 1997-98 was deficient, and a approach of Rs. 6 lacs could be lifted on that ground, nonetheless a matter could be hermetic if Rs. 40,000/- are paid – and not Rs. 15,000/- as demanded by appellant no. 2. It was serve supportive that a volume was to be common by all members of a review party. On 31.05.2002, Rajpal Katyal himself visited Sales Tax Office and contacted appellant no. 1 2 and enquired about his firm’s case. Both a appellants supportive him that a matter had been explained to his Accountant a before day and that a volume to settle a matter had also been intimated to Sachin Arora. Rajpal Katyal voiced his inability to compensate such a outrageous amount, whereupon appellant no. 1 reduced a volume to Rs. 30,000/- observant that it could not be reduced further, as a same was to be common by other members of his group and destined him to compensate a cheat by 03.06.2002. Since he did not wish to compensate a bribe, he lodged a censure (Ex. PW-3/A).

4. After a registration of a case, a trap celebration headed by Inspector Umesh Vashishth, Trap Laying Officer (TLO) (PW-14) was constituted and dual eccentric witnesses -Sh. S.S. Rana, shade declare (PW-8) LDC, Staff-III and Sh. Mann Singh, liberation declare (PW-4) Assistant, both from a bureau of Director General, Doordarshan, Mandi House, were associated. During a pre-trap proceedings, a complainant Rajpal Katyal constructed Rs. 20,000/- in a form of 40 GC annals of Rs. 500/- description each.

The numbers of GC annals were remarkable in a Annexure A to a Handing Over Memo (Ex. PW-3/C). Inspector C.K. Sharma gave a reason by requesting phenolphthalein powder on those GC annals and showed a greeting with sodium carbonate, a resolution incited pink. After treatment, a treated GC annals were handed over to a complainant (PW-3), with a instruction to palm over a sinister GC annals to appellant no. 2 or his associates on specific demand. Further, a shade declare Mann Singh (PW-4) was destined to act as a shade declare and give a vigilance by scratching his control with both a hands after a cheat transaction was over. The complainant (PW-3) was also destined to give a vigilance by dialling a pre- fed mobile series of ‘CBI’ Mobile No. 9810636241 from his mobile no. 9810660147. A Samsung digital recorder, SVR 240, was also handed over to a complainant (PW-3) for recording a review during a spot, as per a ‘Tape Recording Handing Over Memo’ (Ex. PW-3/D).

5. At about 2:00 PM, a trap celebration along with a dual eccentric witnesses aforesaid and a complainant (PW-3) left CBI bureau and reached Sales Tax Office, ITO during about 2:25 PM. The complainant (PW-3) and shade declare (PW-4) were destined to enter room no. 902 and hit a appellants, given a other members of a trap celebration took suitable positions nearby a bureau of a appellants during 9 th floor. The complainant (PW-

3) discussed with a appellant No.1, about a cheat volume to be paid for a allotment of sales taxation matter. After a conversation, a complainant (PW-3) paid a sinister volume of Rs. 20,000/- to appellant no. 1 and staid that a remaining volume would be delivered after on. Appellant No. 1 supposed a cheat volume by his right palm and after counting them, kept a same in his left hand. After a cheat transaction was over, a shade declare (PW-4) went outward and gave a pre-determined signal. The complainant (PW-3) also gave a vigilance by his mobile and in a meantime, appellant no. 1 leaned towards his left side and hid a cheat amount. On receipt of pre-determined vigilance during about 3:00 PM, a trap celebration entered in a bureau room and challenged appellant no. 1 carrying demanded and supposed Rs. 20,000/- as cheat amount. Thereafter, a cheat amount, that had been secluded underneath a runner nearby a left side of appellant no.1, was recovered and a series of GC annals tallied. The rinse of both a hands of appellant no. 1 as good as apportionment of runner underneath that a volume had been secluded were taken, that incited pink. The review between a appellant and complainant (PW-3) as accessible in a Samsung digital recorder was listened during a spot, that arguable a contention between a complainant (PW-3) and appellant no. 1 about a sales taxation matter and a allotment of cheat between them. The review accessible in a digital Samsung recorder was eliminated to another cassette, that was hermetic during a spot. In addition, another cassette was prepared for review functions that were left unsealed. Thereafter, a hunt of tables of a 3 members of a review celebration namely, appellant no. 1, appellant no. 2 and Amar Singh Rawat, comparison auditor was taken. The files relating to complainant’s organisation were recovered from a possession of Amar Singh Rawat and a same were seized.

6. Subsequently, during investigation, a washes were referred to CFSL for chemical conference and a CFSL consultant vide his news (Ex. PW-2/A) antiquated 25.06.2002 opined that washes gave certain exam for phenolphthalein and sodium carbonate. Further, a voice samples of appellant no.1, appellant no. 2, Amar Singh Rawat and complainant (PW-3) were sent to CFSL for comparison with a citation voice samples. CFSL arguable a likeness of questioned voice and citation voice samples of appellant no. 1 and complainant (PW-3) with a voice in cassette in honour of linguistic and phonetic comforts on basement of listened examination, and likeness in honour of format frequencies distribution, intonation pattern, series of formants and other ubiquitous visible comforts in voice grams on a basement of voice spectrographic conference vide Ex. PW-1/B.
7. Thereafter, a efficient management i.e. a Director General of Audit, Central Revenue, IP Estate, New Delhi, accorded sanctions underneath territory 19 of a PC Act for assign of appellant no. 1 and appellant no. 2 vide Ex. PW-15/A and Ex. PW-15/B. After holding cognizance, both a indicted were summoned and on appearance, they were postulated copies of assign square and documents. On 23.02.2004, a schooled Predecessor of a Trial Court framed a charges conflicting both a indicted underneath territory 120-B, IPC and underneath territory 7 13(2) review with territory 13(1)(d) of a PC Act, to that they pleaded not guilty, and claimed trial.
8. The assign examined 15 witnesses to infer a case. They are as follows:

PW-1 Dr. Rajinder Singh, PSO (Physics), CFSL, New Delhi.

PW-2 K.S. Chabra, SSO cum Assistant Chemical Examiner, CFSL.

PW-3 Rajpal Katyal (the complainant). He valid his complaint.

PW-4 Mann Singh (the eccentric shade witness).

PW-5 Sachin Arora, Accountant with M/s. Kailash Engineering.

PW-6 Darshan Singh, Sales Tax Officer.

PW-7 Rakesh Kumar, Sole Proprietor, Shahdara Steel Rolling Mills (Firm that purchased a generator set from M/s. Kailash Engineers).

PW-8 S.S. Rana (the eccentric liberation witness).

PW-9 Mukesh Kumar, Value Added Tax Inspector (Sales Tax Inspector), Dept. of Sales Tax

PW-10 Chander Mohan, Director Administration, Office of a Principal Director of Audit.

PW-11 Gurbachan Lal, Senior Audit Officer.

PW-12 Ajay Chandana, Junior Account Officer, Gurunank Dev Polytechnic.

PW-13 Inspector Amrik Raj, Economic Offences Wing, Crime Branch (the Investigating Officer).

PW-14 Umesh Vashishth, Inspector CISF (Raid Officer/ Trap Laying Officer).

PW-15 H.P. Dass, Chairman, State Administrative Tribunal Orissa (Sanctioning Authority of both appellant no. 1 and appellant no. 2).

9. The matter of a appellant no. 1 was accessible underneath Section 313, Cr.P.C. He claimed to be trusting and secretly endangered in this case. He serve staid that:

“The box is false. The complainant Raj Pal Katyal did not contention a ST-I Form for stealing a extend from depositing a sale taxation about Rs.7 lacs and he got a comment sequence in his foster from a Sale Tax Officer meaningful entirely that if this fact came to a trust of any other management i.e. auditor or higher officer of Sales Tax Officer who conducted a assessment, so he has been conference and following his record and when he came to know that there was odds that a pronounced dissimulation of non depositing of ST-I Form on that he got a extend of Rs.7 lacs sales tax, so in sequence to save himself that no chairman could pass any sequence conflicting him, he secretly lodged a censure with a CBI conflicting me and other members of a auditing celebration and secretly got endangered in this case. The pronounced record on that a comment sequence has been inspected by a sales Tax Officer was expected to be sent for review and a complainant knew that this dissimulation would not sojourn underneath a record and would come on a surface, so he got laid down a fake trap and got me and Lala Ram secretly arrested in this case. we never demanded any bootleg advantage from complainant Raj Pal Katyal given a pronounced record never came to me and we did not lift any objection, so a dropping of a conflict did not arise by me as mentioned in a assent order. The complainant manipulated to keep a income underneath a Carpet in sequence to secretly implicate me given he knew that we would not accept a income given we had never demanded or concluded to accept a bootleg advantage from him. Raj Pal Katyal had already secretly endangered one officer of Income Tax Department when he found that he was expected to be endangered in a semblance of income tax. He is really tighten to certain CBI officers as one of his tighten relations is in CBI who has helped him illegally and unlawfully in conducting a raid conflicting me.”

10. The appellant no. 2 in a matter accessible underneath Section 313, Cr.P.C staid that he was trusting and that it was a fake case.
11. The appellant no. 1 examined a following witnesses in support of his defence:

DW-1 Deepak Kumar, Senior Audit Officer.

DW-2 Madan Lal, UDC, Record Keeper, Sales Tax.

DW-3 L.S. Thakur, Senior Auditor.

DW-4 R.S. Sharma, Audit Officer.

DW-5 D.R. Raja, Senior Audit Officer.

DW-6 Neksay Lal, Senior Audit Officer.

However, a appellant no. 2 did not lead any justification in his defence.

12. The Trial Court on an research of a justification came to a finish that a box conflicting a appellant no. 1 and appellant no. 2 had been valid by a assign over reasonable doubt and, thus, convicted a appellants.

Submissions on seductiveness of Girwar Singh Appellant no.1:

13. Mr. Mittal, schooled comparison counsel, appearing for appellant no. 1, submits that there are contradictions in a statements of a complainant (PW-3), digest his testimony unreliable. The complainant (PW-3) in a examination-in-chief, inter alia, staid that:

“On 31.05.2002, we privately met both a accused, who are benefaction in a probity currently (Correctly identified). we showed my inability to compensate Rs.40,000/- and on my ask they reduced a volume to Rs.30,000/- and serve told that this could not be reduced. we was destined to compensate a staid volume of Rs.30,000/- on 3.6.2002. we asked a indicted persons if we could not arrange a volume afterwards we was told that whatever volume we could arrange, a same should be paid.”

14. However, a complainant (PW-3), in his cross-examination, staid as follows:

“I did not ask for Lala Ram in room No.902 and we asked for Girwar Singh only. we talked to Girwar Singh only. we had communication with Lala Ram in CBI bureau for a minute.”

15. Mr. Mittal submits that it is transparent from a statements of a complainant (PW-3) that there is a counterbalance with courtesy to a participation of appellant no. 2 when he allegedly had review per a approach and traffic of a cheat amount. The complainant (PW-3), progressing deposed that both a appellants were benefaction when a approach was made, however, in his cranky examination, he staid that he customarily enquired about appellant no. 1 and had review with appellant No. 1. Therefore, it raises a doubt possibly there was any approach for bribe, and by whom was it demanded. He submits that there is no justification of approach by a appellant no.1. Learned comparison warn submits that a reason of approach is a sine qua non to consecrate a offences in question. In this regard, he places faith on Banarasi Dass v. State of Haryana, (2010) 4 SCC 450, Rakesh Kapoor v. State of Himichal Pradesh, (2012) 13 SCC 552, State of Punjab v. Madan Mohan Lal Verma, AIR 2013 SC 3368, B. Jayaraj v. State of A.P., 2014 (13) SCC 55, Ashish Kumar Dubey v. State thr. C.B.I., 2014 (142) DRJ 396.
16. Learned comparison warn submits that as per a conference in arch of a complainant (PW-3), it is transparent that there was no approach by appellant no. 1 even on 03.06.2002. The complainant (PW-3) states that after he reached a sales taxation bureau along with Sachin Arora (PW-5), he introduced himself and supportive a appellants that he could arrange Rs. 20,000/- and thereafter, he handed over a cheat income to appellant no. 1. Thus, in a light of a matter of a complainant (PW-3), it stands determined that there was no approach by a appellant no. 1. Even according to a matter of a complainant (PW-3) a income was allegedly handed over nonetheless there being any demand.
17. Learned comparison warn submits that as per a testimony of a shade declare (PW-4), there was no approach by appellant no.1, and there was customarily acceptance. In this regard, a matter of a shade declare (PW-4) is relied on that is as follows: “Mr. Katyal sat in front of Mr. Girwar Singh, indicted benefaction in a Court (correctly identified). They were articulate about some box and after some time Mr. Katyal gave a sinister GC annals to Mr. Girwar Singh.” He submits that given approach is an essential partial for forming an crime underneath PC Act, in a deficiency of demand, a appellants can't be convicted for a offence.
18. Learned comparison warn for a appellant no.1 submits that a shade declare (PW-4) had progressing been a declare in a CBI raids. In this regard, shade declare (PW-4) staid that “I have assimilated 2-3 CBI raids as a witness.” Being a batch declare of a CBI, a matter of a shade declare can't be relied on as an eccentric witness. In this regard, he places faith on Pyare Lal v. State, (2008)149 DLT 425 and G.V. Nanjundiah v. State (Delhi Administration), 1987 Supp. SCC 266.
19. Learned comparison warn submits that a digital fasten recorder, that was used to record a questioned review was conjunction constructed before a Court, nor it was examined. No certificate underneath territory 65B, Indian Evidence Act, 1872 was constructed with honour to a twin memo (Ex. PW-3/F) prepared from a conversation. Placing faith on Rakesh Kumar Ors. v. State, 2009 (163) DLT 658, schooled comparison warn submits that a mechanism generated electronic annals is accessible during a conference customarily if valid in a demeanour specified by Section 65B of a Evidence Act. He submits that a accessible review was full of reeling and many of it was not clear. In this regard, a complainant (PW-3), in his cranky examination, staid that “It is scold that there is lot of reeling in a cassette played today… … There was no sound in room No.902 nonetheless there was sound in surroundings.”
20. Mr. Mittal submits that as per a matter of a TLO (PW-14), a strange recording was eliminated into dual cassettes, out of that one was hermetic and a other was not hermetic and a strange recording was deleted. Therefore, tampering with a cassette can't be ruled out and a same is not accessible in a court. In this regard, he places faith on Ram Singh Ors. v. Col. Ram Singh, (1985) Supp SCC 611, wherein a Supreme Court reason that a fasten recording review can't be relied on if there are lots of reeling in a cassette played before a court, and a probability of tampering can't be ruled out. Further, a complainant (PW-

3) staid that “It is also scold that a pronounced review was eliminated in a empty cassette that was hermetic during a mark and a coupling was hermetic by us.” Hence, there is craziness as a complainant does not pronounce about a recording being eliminated into dual cassettes, formulating a doubt as to possibly a recording was eliminated during all, or not. Even a shade declare (PW-4) does not support a assign box with courtesy to a send of a recording to dual cassettes.

21. Mr. Mittal submits that it is transparent from a matter of a complainant (PW-3) that a apportionment of a recording is inaudible. Further, in a portions audible, customarily a voice of a complainant (PW-3) can be listened talking. Nothing in a review in cassette has been attributed to appellant no. 1. He submits that from a testimony of a complainant (PW-

3) -with honour to a recording of a cassette, a transaction between a complainant (PW-3) and appellant is inconclusive.

22. Learned comparison warn submits that there is counterbalance qua a date of recording of a citation voice. The complainant (PW-3) in his examination-in-chief, inter alia, staid that “I was again called in a CBI bureau where citation voice of myself and Girwar Singh were accessible and a memo was prepared in honour of sealing a cassette. The memo is Ex. PW 3/F temperament my signature during point-A.”. Further, in his cranky conference he staid that “it is scold that on a day of raid, my citation voice or that of indicted Girwar was not recorded. It was accessible on 5 th only.” However, as per a Specimen voice recording memo (Ex. PW-3/H), a recording of a citation voice was finished on 25.07.2002. This is also advanced by a matter of a I.O. (PW-13). The I.O (PW-13) staid that “I also accessible a citation voice of a indicted Girwar Singh and a complainant Rajpal Katiyal in a participation of eccentric witnesses Sh. Mann Singh and Sh. SS Rana on 25.7.02.”. Thus, there is element counterbalance in a matter of a complainant (PW-3) and Insp. Amrik Raj, I.O. (PW-13), review with (Ex. PW-3/H).
23. Moreover, a shade declare (PW-4) in his cranky examination, inter alia, staid that “Perhaps citation voice of indicted No. 1 was accessible in CBI bureau on a day of raid nonetheless it was not accessible during a spot. we do not remember if citation voice of complainant was accessible during a mark or in a CBI bureau on that day.” The shade declare (PW-4) also does not support a matter of a complainant (PW-3) with honour to a date of recording of citation voice.
24. Learned comparison warn submits that in perspective of a counterbalance in a statements of a shade declare (PW-4) I.O. (PW-13), with courtesy to a sealing of a cassette, there was a probability of tampering with a samples. The shade declare (PW-4) deposed that after conference a conversation, it was eliminated in a empty cassette, that was afterward hermetic and hermetic during a spot. However, a I.O. (PW-13) in his re-examination, inter alia, staid that “I state that a transcription was prepared after listening a review duplicate of a cassette accessible on 3.6.2002 of a review between Sh. Rajpal Katiyal and Girwar Singh. This Memo was prepared and hermetic by me. The review duplicate of a cassette was not in hermetic condition. we was a small bit confused as we had suspicion that a Ld. Defence Counsel is seeking about a cassette used for recording a citation voice.”

He submits that it is transparent from a matter of a Insp. Amrik Raj, I.O. (PW-13) that a transcription was prepared after opening a pointer of a cassette, and nonetheless holding accede of a probity to open a seal. Further, a Insp. Amrik Raj, I.O. (PW-13) certified that “I did not surprise a CFSL Authority per a violation of a pointer of a cassette from that we prepared a transcription.” Consequently, a cassette can't be relied upon, as there is grave probability of a samples carrying been tampered with.

25. Another acquiescence of schooled comparison warn is that a Insp. Amrik Raj, I.O. (PW-13) certified that he did not record a review duplicate of a cassette on a record along with a charge-sheet.
26. Learned comparison warn submits that a T.L.O. (PW-14) staid that after holding a digital recorder from a complainant (PW-3), it was listened and thereafter, Sub Inspector Prem Nath eliminated a review into a cassette. However, conjunction Prem Nath was constructed as a declare before a probity nor any matter was accessible underneath territory 161, Cr.P.C. to a outcome that he eliminated a review into a cassette from digital recorder.
27. Mr. Mittal submits that there is no sustenance per holding of voice sample. He submits that a range of territory 311A, Cr.P.C. is with courtesy to a energy of a probity to give citation for signature or scratch for a functions of any investigation. Thus, there is no sustenance for holding a citation of voice sample. In this regard, faith is placed on Rakesh Bisht v. CBI, 2007 (2) AD (Delhi) 23 and Ritesh Sinha v. State of Uttar Pradesh Anr., (2013) 2 SCC 357. Further, he submits that due to a disproportion of opinion of a courts, a matter has been referred to a incomparable bench.
28. Mr. Mittal submits that belligerent and approach are a basement of a box underneath a PC Act. He submits that a explain of a complainant (PW-3) in a censure (Ex. PW-3/A) is that a accused/appellant no.1 refused to accept documents, unless a cheat was paid. The complainant (PW-3) in his cranky conference staid that “It is scold that ST-1 form was deficient in that file.” Further, he staid that “It is scold that a ST-1 form was never released in my foster by a client of a generator.” Thus, it can't be a box that a cheat was being demanded to hush adult a ST-1 form.
29. Learned comparison warn submits that there was counterbalance in a matter of a complainant (PW-3) finished during his cranky conference and his matter accessible underneath territory 161, Cr.P.C (Ex. PW-3/DA). The complainant (PW-3), in his cross-examination, inter alia, staid as follows:

“I did not state before CBI that indicted No. 1 was challenged for perfectionist and usurpation Rs.30,000/-. (Confronted with portion-A to A matter Ex. PW-3/DA where it is so recorded).”

30. However, complainant (PW-3) in his matter accessible underneath territory 161, Cr.P.C. (Ex. PW-3/DA), staid that “You challenged a indicted persons as together they had demanded and supposed cheat of Rs. 30,000/- from me. On this a indicted became confused and kept mum.” He states that underneath a Proviso to Section 162, Cr. P.C. such statements accessible underneath Section 161, Cr.P.C. can be used customarily for a purpose of contradicting a assign declare in a demeanour indicated in Section 145, Evidence Act, and for no other purpose. Thus, a before matter of a declare can be used by a indicted for a singular purpose mentioned in Section 162 of a Code as supposing for in Section 145 of a Evidence Act. Consequently, it would not be protected to rest on a matter of a complainant (PW-3) as his statements are paradoxical and all other witnesses have incited hostile.
31. Ld. Senior Counsel submits that a shade declare (PW-4) in his testimony deposed that he did not know, if one chairman with a name of Sachin Arora (PW-5) was benefaction during a time of assembly a appellant. Thus, it creates doubt about a participation of a accountant Sachin Arora (PW-5) during a time of a transaction.
32. Another acquiescence of Mr. Mittal is that there was a heading doubt put to a shade declare (PW-4). The shade declare (PW-4), in respond to a heading question, states:

“It is scold that while fluctuating a cheat volume towards Girwar Singh, a complainant told Girwar Singh that he could arrange customarily Rs.20,000/- and remaining volume will be delivered shortly by a chairman concomitant him”

33. He submits that heading questions can't be put to a declare by a prosecution. Thus, a fact that a review per a arrangement of a remaining cheat volume after took place between a complainant (PW-3) and appellant no.1 can't be used in justification conflicting a appellant no.1.
34. Mr. Mittal submits that Sachin Arora (PW-5) does not support a box of a prosecution. Sachin Arora (PW-5), is his cranky examination, inter alia, stated:

“It is improper to advise that after brief contention about a case, Mr. Katyal handed over a cheat volume to Girwar Singh who supposed a same with his right palm and after counting a same with both hands, kept a same in his left hand. (Confronted with apportionment K to K where it is so recorded).”

35. Sachin Arora (PW-5) denied that any such transaction took place between a complainant (PW-3) and a appellant. Thus, a testimony of Sachin Arora (PW-5) does not support a prosecution’s case.
36. Learned comparison warn submits that a matter of a liberation declare (PW-8) with courtesy to a transaction between a complainant (PW-3) and appellant no. 1 would tumble within a strech of sequence of scuttle-butt evidence. The liberation declare (PW-8) staid that:

“Sh. Mann Singh, shade declare also again entered in a room along with a raiding celebration after giving a signal. Inspector Vashishth inquired from Sh. Raj Pal Katyal and Sh. Mann Singh about a transaction of cheat income and a review that took place between Sh. Raj Pal Katyal and a accused. Sh. Raj Pal Katyal and Sh. Mann Singh both disclosed to Inspector Vashishth that indicted Girwar Singh had supposed cheat income in his right palm and afterward he counted a same with both hands. Sh. Raj Pal also disclosed that after usurpation a cheat money, indicted Girwar Singh had focussed towards one side while remained sitting on his chair.”

37. The TLO (PW-14) deposed that he inquired from a shade declare (PW-4) per a transaction of a bribe, and a shade declare (PW-

4) supportive that after a contention with appellant no. 1, appellant no.1 supposed a cheat income from a complainant (PW-3) from his right palm and counted them with both his hands and kept them in his left hand. The TLO (PW-14) serve deposed that he was supportive by a complainant (PW-3) that while he was giving a skip call, a appellant no. 1 focussed towards his left side and when he sat on a chair, a cheat volume was not in his hands. Thus, a matter of a liberation declare (PW-8) and TLO (PW-

14) being scuttle-butt evidence, are not accessible in evidence. Further, conjunction a complainant (PW-3), nor shade declare (PW-4), who were benefaction inside a room when a transaction took place, staid in their depositions that appellant no. 1 focussed down to place a cheat money.

38. The shade declare (PW-4) in his matter staid that “It is improper to advise that after usurpation a (sic.) cheat amount, indicted Girwar Singh counted a same with his both hands and after that kept a same in his left hand.” The shade declare does not support a assign box that a appellant no. 1 supposed a cheat income and thereafter, counted a same.
39. Learned comparison warn submits that as per a matter of a shade declare (PW-4), a hunt was finished for a sinister notes, that was finally recovered underneath a runner from a apportionment customarily underneath a chair of a appellant no. 1. He submits that it was not probable that during a routine of search, a annals were recovered from a chair underneath.
40. Learned comparison warn submits that a complainant (PW-3), in his testimony, has nowhere staid that he saw a appellant no. 1 disposition towards a left and concealing a cheat money, or he supportive a I.O. (PW-13) per a fact that a income was secluded by leaning. However, a liberation memo (Ex. PW-3/E) states that “The complainant also arguable a same chronicle of shade declare and serve combined that while he was bustling in giving vigilance on CBI dungeon phone by his mobile, he saw a indicted Shri Girwar Singh disposition towards his left side and secluded a cheat volume as a same was not seen in his hands later.” Further, a shade declare (PW-4), in his cranky examination, staid that there could be a probability that a complainant (PW-3) told a CBI that a appellant no. 1 leaned and secluded a cheat amount. Thus, there is counterbalance qua a fact that possibly a complainant (PW-3) knew about a dissimulation of a cheat volume by leaning, or not.
41. Learned comparison warn submits that Sachin Arora (PW-5) did not support a box of a prosecution. Sachin Arora (PW-5) in his cranky conference denied that a cheat volume was supposed by appellant no. 1 in his participation and afterward he secluded it. He denied that he was benefaction during a time of a post trap proceedings. He denied that his signatures are benefaction on a liberation memo (Ex. PW-3/E). He serve denied that a cheat income was recovered from underneath a carpet, and that a palm washes were conducted in his presence. Thus, a testimony of Sachin Arora (PW-5) can't be relied upon.
42. On a aspect of recovery, schooled comparison warn submits that it is transparent from a statements of a complainant (PW-3), shade declare (PW-

4), liberation declare (PW-8) and a TLO (PW-14) that a cheat volume was not recovered from a appellant, nonetheless from underneath a runner underneath a chair of appellant no. 1. Therefore, it can't be construed that a liberation is established, and appellant no.1 was in possession of a GC notes. In this regard, faith is placed on Suraj Mal v. State (Delhi Administration), (1979) 4 SCC 725, M.K. Harshan v. State of Kerala, (1996) 11 SCC 720, C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779.

43. Learned comparison warn submits that a TLO (PW-14), in his deposition staid that after acid for a cheat volume during other places, a shade declare (PW-4) supportive that a cheat income was found underneath a carpet. In this regard, a TLO (PW-14) staid that:

“The drawer of a list of a indicted was searched nonetheless a cheat income was not found. Thereafter hunt of other places around a list of a indicted were conducted and during a search, a eccentric declare Sh. Mann Singh supportive that a cheat income was kept underneath a Carpet on a building of a bureau room, towards a left side of a indicted Girwar Singh.”

44. However, a shade declare (PW-4) has nowhere staid in his testimony staid that he supportive about a cheat income being kept underneath a carpet.
45. Learned comparison warn submits that there is craziness between a matter of TLO (PW-14) and a complainant (PW-3) with courtesy to a relocating of chairs and tables to redeem a cheat money. The complainant (PW-3) staid that “It is scold that certain articles like chair drawer etc. were changed to find out where a income has been kept and income was not recovered from drawer.” However, a TLO (PW-14) staid as follows:

“It took about 10 mins to me in checking a drawers of a list of a indicted Girwar Singh.

So distant as we remember there were some indemnification in a runner and nonetheless stealing list and chair, a sinister income was recovered underneath a carpet.”

46. Thus, there is craziness in a statements of a TLO (PW-14) and a complainant (PW-3) qua a transformation of furniture, etc. to redeem a cheat volume from a carpet.
47. Learned comparison warn submits that as per a testimony of a liberation declare (PW-8), he did not hunt for a cheat money. He serve staid that a runner was 8″ x 10″. However, there is counterbalance with courtesy to a area that was lonesome by a runner as a other witnesses staid that a runner was wall to wall. Learned comparison warn submits that a site devise (Ex. PW-4/A), is customarily a confirmatory square of evidence, and not concrete evidence. He submits that a measure have not been mentioned in a site devise and it is not even transparent possibly it has been prepared by a I.O. or not. The list and chairs have also not been shown or remarkable in a site plan.
48. Mr. Mittal submits that a complainant (PW-3) staid that a apportionment of a runner from where a sinister volume was recovered, was also seized. However, zero of a other witnesses deposed that square of a runner was cut out.
49. Learned comparison warn submits that a shade declare (PW-4) does not remember if a apportionment of a runner from where income was recovered, was also taken. He submits that during cranky examination, a shade declare (PW-4) did not remember as to who had cut a carpet, and what slicing instrument was used.
50. The liberation declare (PW-8) in his matter staid that a bottle Ex. P-3 contained really less, approximately 10 teaspoons of lightest pinkish colour solution. Even Ex. P-2 contained lightest pinkish colour solution. Thus, it creates doubt per a participation of phenolphthalein powder.
51. Learned comparison warn submits that a assent sequence (Ex. PW-15/A) does not uncover that a supporting management has practical his mind while extenuation a sanction. He submits that, firstly, a assent sequence is incomplete, as small approach of a appellant is not sufficient, as it does not uncover that there was acceptance or liberation of a advantage volume of Rs. 20,000/- by a appellant no.1. Further, a assent sequence (Ex. PW- 15/A) is for a cheat volume of Rs. 30,000/- that shows that there is no focus of mind by a supporting management (PW-15).
52. Mr. Mittal submits that from a testimony of Deepak Kumar Gupta (DW-1), it is determined that appellant no. 1 did not have any record per to a complainant (PW-3). Deepak Kumar Gupta (DW-1), inter alia, staid that “The summoned record i.e. record of purported objections lifted by Girwar Singh on a record of M/s. Kailash Engineering is not in a office. … In this file, there is no ask or photocopy display lifting of conflict by Girwar Singh.” Thus, a appellant did not have a record per to a complainant.

Submissions on seductiveness of Lala Ram – appellant no.2:

53. Mr. Tanveer Ahmed Mir, schooled warn appearing for appellant no. 2 submits that in a box of Amar Singh Rawat – a third chairman who was benefaction in a room when a transaction happened, a supporting management primarily refused to settle assent to prosecute him. However, a assent was accorded qua him later, nonetheless a conference probity liberated him. He submits that a purpose of appellant no. 2 is during standard with Amar Singh Rawat and, therefore, a appellant no. 2 should be liberated from a charges as well.
54. Learned warn submits that no approach has been determined by/against appellant no. 2, and conjunction was there any acceptance or liberation from a appellant no. 2. He serve submits that no voice recording of a appellant no. 2 was found in a accessible conversation. Therefore, a appellant no. 2 can't be charged with swindling for receiving advantage from a complainant (PW-3).
55. Learned warn submits that nonetheless a phone call was perceived from sales taxation bureau on 23.05.2002, Sachin Arora (PW-5) nowhere mentions in his matter from ‘whom’ a call was received. Further, Sachin Arora (PW-5) denied that when he visited a Sales Tax Office on 27.05.2002, he met appellant no. 2 and that approach for cheat was finished during that time.
56. Learned warn submits that a final allegedly finished by a appellant No.2 on 25.07.2002 and by appellant No.1 on 30.05.2002 for cheat of Rs.15,000/- and Rs.40,000/- respectively are not determined as they are scuttle-butt justification of a complainant PW-3. These final were allegedly finished to Sachin Arora (PW-5), who had incited hostile. He has referred to a examination-in-chief of PW-3, a complainant, wherein he, inter alia, stated:

“On 31.5.2002, we privately met both a accused, who are benefaction in a probity currently (Correctly identified). we showed my inability to compensate Rs.40,000/- and on my ask they reduced a volume to Rs.30,000/- and serve told that this could not be reduced. we was directerd to compensate a staid volume Rs30,000/- on 3.6.2002. we asked a indicted persons if we could not arrange a volume of Rs.30,000/- afterwards we was told that whatever volume we could arrange, a same should be paid.”

57. Learned warn submits that a matter of PW-3 does not uncover that on 31.05.2002 any approach was lifted by a dual accused. The complainant on his possess settle claims to have offering to compensate a volume to a accused.

58. Learned warn submits that Sachin Arora (PW-5), who allegedly was traffic with appellant no. 2, incited hostile, and did not support a box of a prosecution. Further, a shade declare (PW-4) does not implicate appellant no. 2 in his statement. The shade declare (PW-4) staid that a complainant (PW-3) spoke to appellant no. 1 before a sinister annals were handed over to him.
59. Learned warn submits that on a conference of a CFSL news of a audio recording, it is transparent that zero damning was found qua a appellant no. 2.
60. Learned warn for appellant no. 2 placed faith on a following judgments:
61. State of Punjab v. Madan Mohan Lal Verma, AIR 2013 SC 3368.
62. B. Jayaraj v. State of A.P., JT 2014 (7) SC 381.

iii.    Surinder Kaur v. State of Haryana, 2014 (10) SCALE 716

Submissions on seductiveness of a CBI:

61. On a other hand, schooled warn for a CBI entirely supports a visualisation and sequence of a conference court. He submits that there was approach for cheat by a appellants. The complainant (PW-3) in his deposition staid that:

“On 31.05.2002, we privately met both a accused, who are benefaction in a probity currently (Correctly identified). we showed my inability to compensate Rs. 40,000/- and on my ask they reduced a volume to Rs. 30,000/-and serve told that this could not be reduced. we was destined to compensate a staid volume of Rs. 30,000/- on 3.6.2002. we asked a indicted persons if we could not arrange a volume of Rs. 30,000/- afterwards we was told that whatever volume we could arrange, a same should be paid.”

(Emphasis supplied)

62. Thus, a essential partial of approach by a appellant no. 2 stands established.
63. Mr. Mann, schooled station warn for CBI submits that a complainant (PW-3) has deposed and valid that on 31.05.2002 he visited a bureau of a Sales taxation during 9th Floor and privately met both a appellants and showed his inability to compensate 40,000/- that was reduced to Rs. 30,000/- with a instruction to compensate on 3.6.2002. PW-3 advanced a approach by his contemporaneously finished created censure (PW-3/A), wherein he privately mentioned about a approach of cheat income by both a appellants. PW-3 valid a pre-raid record and credentials of handing over memo (Ex. PW-3/B), annexure to handing over memo (Ex. PW-3/B), handing over of fasten recorder memo (Ex. PW-3/D) and his signatures on a same. PW-3 serve valid that trap, acceptance of bootleg advantage of Rs. 20,000/- by a appellant Girwar Singh, and liberation of a same by a eccentric witnesses. PW-3 has also valid a post-raid proceedings/Recovery vide Ex. PW-3/E, twin cum voice marker memo (Ex. PW-3/F), a transcription (Ex. PW-3/G), and a citation voice recording memo (PW-3/H), and his signatures on a same. PW-3 has valid a transcription (Ex. PW-3/G) and also identified his and voice of a indicted Girwar Singh. This fact is serve advanced by a testimony of Rajinder Singh (PW-1), his news is Ex. PW-1/A and Ex.PW- 1/B, wherein he gave opinion that a questioned voice in questioned cassette is that of Girwar Singh. He has valid a left palm rinse of a indicted and a runner wash, that incited pink. PW-3 also valid a GC annals Ex. P-1 to P-40. He submits that a aspect of demand, acceptance and liberation of income has been valid from a matter of PW-3, and other resources that clearly indicating out a complicity of a appellants in a crime.
64. Mr. Mann submits that PW-5 has certified to his visits to a Sales taxation bureau on dual occasions and pronounce of some settlement. Though PW-5 has not inspected a specific approach by a appellants, nonetheless a successive resources that a complainant met both a appellants who reiterated a approach and reduced a same from Rs. 40,000/- to Rs. 30,000/- support a box of a assign that demand/agreement to accept Rs. 30,000/- as bribe, and acceptance of Rs. 20,000/- by Girwar Singh was partial of a conspiracy, and a volume was supposed by Girwar Singh himself and a appellant Lala Ram. Reliance is placed on D. Velayutham v. State Represented by Inspector of Police, Salem Town, Chennai, 2015 (12) SCC 348, wherein a Supreme Court has celebrated in para

“15. Though this Court has stressed a need and stress of phenolphthalein as a trap device in crime cases, so as to reduce doubts about a tangible receiving of bribes by indicted persons, there might be cases where there are mixed demanders in a common or conjoint cheat demand, and for whatsoever reason, customarily one receives a sum on their behalf, and is entrapped in consequence. Depending on strength of a residue of evidence, in these cases, constructive receipt by co-accused persons is open to investiture by a prosecution, in sequence that those who intermediately obtain bribes be latched with equal blame as their co-accused and entrapped receivers. This will, of course, bonus those cases where a trap is successful customarily conflicting one and not a other official, a latter carrying refused to accept a cheat tendered. In this case, a trap would have clearly unsuccessful conflicting such an official, and there could be no doubt of a focus of constructive receipt. If a receipt and doing of cheat income by Accused 2 so convincingly and inexorably points towards his custodianship of partial of a same cheat volume on seductiveness of his higher officer, namely Accused 1, afterwards Accused 1 can't rest on small non-handling/non-receipt of a cheat money, as his trail to exculpation. This Court’s construal of anti-corruption cases is supportive even to these byzantine methods of bribe-taking, and where an evader escapes a trap, constructive receipt has to be an swap means of fixture rapist culpability.”

(Emphasis supplied)

65. Learned warn submits that Sachin Arora (PW-5), in his conference in chief, inter alia, stated:

“When we met a officer alongwith a papers who telephoned in a office, he refused to accept a paper observant that initial of all some allotment has to be finished by us and customarily afterwards a papers will be accepted. we told that officer that customarily my trainer could settle as he was a final authority. Thereafter we supportive about a talks to my trainer who told me that we should have asked about a terms of settlement. we again met that officer who destined me to send my trainer and we conveyed a same to a boss. After 2-3 days my trainer Sh. Rajpal Katyal destined me telephonically to come with files to Sales Tax Office. When i met Mr. Katyal in STO, we found one chairman concomitant him and we all a 3 went inside a bureau room of review dialect where we met two-three persons.”

66. He submits that Sachin Arora (PW-5) was not cranky examined by a appellant on this aspect and, therefore, this apportionment of a matter can be relied on by a prosecution. Thus, from a matter of Sachin Arora (PW-5), it stands advanced that a officer refused to accept papers as some allotment has to be finished and serve that he accompanied a complainant (PW-3) another chairman to a bureau room of a review department.
67. Learned warn submits that no idea was put to a complainant (PW-3) in his cranky conference that he did not revisit a bureau of sales taxation on 31.05.2002. Thus, it stands determined that a complainant (PW-3) went to sales taxation office.

68. Mr. Mann submits that a shade declare (PW-4) – who is a eccentric witness, has inspected a box of a prosecution. Further, a censure of a complainant (PW-3) has been inspected by a statements of a eccentric shade declare (PW-4), and a liberation declare (PW-

8), and also by a TLO (PW-14).

69. With courtesy to a participation of phenolphthalein on his hands and a square of runner underneath that a cheat volume was found, schooled warn submits that appellant no. 1 did not explain this damning justification conflicting him in his matter underneath Section 313 Cr.P.C. When a appellant no. 1 was questioned vide Q. 31, per a palm rinse branch pinkish in a dull resolution of sodium carbonate, in his matter accessible underneath territory 313 Cr.P.C., he finished bald denials that a pinkish washes have been secretly prepared to secretly implicate him. However, no reason has come onward from appellant no. 1.
70. Learned warn submits that appellant no. 1 in his matter accessible underneath Section 313 Cr.P.C. staid that it is scold that he was a control of celebration no. 10 along with a co-accused i.e. appellant no. 2 and Amar Singh Rawat for a duration 30.04.2002 to 27.05.2002. Thus, it proves that a appellants were in a review group endangered in a review of a complainants firm.
71. Learned warn places faith on Explanation (d) to Section 7, PC Act to contention that it is not compulsory that a open menial should indeed do, or should be means of doing a act for that cheat might be demanded.
72. Mr. Mann submits that K.S. Chabra (PW-2), who was a Assistant Chemical Examiner, CFSL in his conference in arch staid that “On chemical research all a exhibits gave certain tests for phenolphthalein and sodium carbonate”. Further, a CFSL news (Ex. PW-2/A) tested certain for a participation of phenolphthalein and sodium carbonate. Under territory 293, Cr.P.C. a news of a chemical/ Assistant chemical investigator is good evidence.
73. On a aspect of sanction, schooled warn submits that a appellants have not shown what disaster of probity has taken place, even if it is insincere that assent postulated to a appellant is irregular. In this regard, faith is placed on C.S. Krishnamurthy v. State of Karnataka, 2005 (4) SCC 81.
74. Learned warn submits that with courtesy to a twin (Ex. PW- 3/G), territory 65B, Evidence Act is not germane in this box to a memos. The transcripts have customarily been typed in a mechanism and have not come into existence on a mechanism like an email or digitally hermetic document. In this regard, faith is placed on Anvar P.V. v. P.K. Basheer Ors., (2014) 10 SCC 473.
75. I have listened schooled counsels, perused a record and deliberate a submissions and justification accessible in a case.

Regarding a outcome of Sanction:

76. H.P. Dass, Chairman, State Administrative Tribunal, Orissa (PW-15), was a management efficient to mislay appellant no. 1 and appellant no. 2 from use and he accorded a assent for assign of both a indicted for a purported offence. Learned counsels for a appellants contended that there was no focus of mind by a supporting management (PW-15) while according a sanction.
77. Section 19(3), PC Act reads as follows:

“(3) Notwithstanding anything contained in a Cr.P.C., 1973,-

(a) no finding, visualisation or sequence inspected by a special Judge shall be topsy-turvy or altered by a probity in appeal, acknowledgment or rider on a belligerent of a deficiency of, or any error, repudiation or anomaly in, a assent compulsory underneath sub- territory (1), unless in a opinion of that court, a disaster of probity has in fact been occasioned thereby;

(b) no probity shall stay a record underneath this Act on a belligerent of any error, repudiation or anomaly in a assent postulated by a authority, unless it is confident that such error, repudiation or anomaly has resulted in a disaster of justice;

(c) no probity shall stay a record underneath this Act on any other belligerent and no probity shall practice a powers of rider in propinquity to any interlocutory sequence inspected in any inquiry, trial, seductiveness or other proceedings.”

78. Thus, there contingency a disaster of probity caused to a indicted due to a anomaly in a assent order. The Sanctioning Authority (PW-15) has privately staid in his deposition that after delicately examining a element on record including papers and matter of witnesses underneath Section 161 Cr.P.C, he has accorded assent for a assign of a appellants. In C.S. Krishnamurthy (supra), a Supreme Court reason as follows:

“9. Therefore, a ratio is assent sequence should pronounce for itself and in box a contribution do not so appear, it should be valid by heading justification that all a details were placed before a supporting management for due focus of mind. In box a assent speaks for itself, afterwards a compensation of a supporting management is apparent by reading a order. In a benefaction case, a assent sequence speaks for itself that a obligatory has to comment for a resources jagged to his famous source of income. That is contained in a assent sequence itself. More so, as forked out, a supporting management has come in a declare box as declare No. 40 and has deposed about his focus of mind and after going by a news of a Superintendent of Police, C.B.I. and after deliberating a matter with his authorised department, he accorded sanction, it is not a box that a assent is lacking in a benefaction case. The perspective taken by a Additional Sessions Judge is not scold and a perspective taken by schooled singular Judge of a High Court is justified.”

(Emphasis Supplied)

79. The Sanctioning Authority (PW-15) has denied in his cranky conference that he postulated assent for assign mechanically nonetheless focus of mind, or nonetheless meaningful a loyal contribution of a case. Further, with courtesy to a cheat volume being mentioned as Rs. 30,000/-, a supporting management (PW-15) has staid that “The contribution mentioned in a Sanction Orders were remarkable from a record arguable in a office.” The assent sequence mentions a approach for cheat of Rs. 30,000/-, as a approach by a appellant no. 1 was for a aforesaid amount. The complainant (PW-

3) has staid in his conference in arch that he supportive a appellants that he could customarily arrange Rs. 20,000/- and a change volume would be paid after on. Thus, a supporting management (PW-15) had rightly mentioned in his assent sequence that an volume of Rs. 30,000/- had been demanded from a complainant (PW-3), as a appellants on 31.05.2002 concluded to accept that amount.

80. Further, it is staid law that a anomaly in extenuation assent would be of stress if there was disaster of probity as a outcome of it (See Paul Varghese v. State of Kerala Anr., (2007) 14 SCC 783). In a benefaction case, a appellant has unsuccessful to uncover that there was disaster of probity due to extend of assent by H.P. Dass (PW-15).
81. In perspective of a above discussion, a acquiescence of a appellant that a supporting management did not ask his mind in according assent is rejected.

On Merits:

82. On a aspect of demand, a complainant (PW-3) in his conference is chief, inter alia, staid that:

“On 31.05.2002, we privately met both a accused, who are benefaction in a probity currently (Correctly identified). we showed my inability to compensate Rs.40,000/- and on my ask they reduced a volume to Rs.30,000/- and serve told that this could not be reduced. we was destined to compensate a staid volume of Rs.30,000/- on 3.6.2002. we asked a indicted persons if we could not arrange a volume afterwards we was told that whatever volume we could arrange, a same should be paid.”

83. In his cranky examination, he staid that:

“First we visited room No. 902 on 31.5.2002 and during that time there was sitting arrangement for 4 officials and 3 were benefaction out of them dual officers were benefaction on their chair and one chairman sitting conflicting them on visitor’s chair and dual seats of officials were vacant. we did not ask for Lala Ram in room No.902 and we asked for Girwar Singh only. we talked to Girwar Singh only.”

84. The matter of a complainant (PW-3) establishes that a approach was finished for a cheat income for some settlement. The complainant was given a information of approach by his accountant Sachin Arora (PW-5) given a accountant was a initial chairman to whom a initial approach was made. Sachin Arora (PW-5) was announced a antagonistic declare during a trial. He denied a approach finished by a appellants. However, a conference in arch of Sachin Arora (PW-5) is relevant, as it corroborates a chronicle of a complainant (PW-3) and contribution in a censure (Ex. PW-3/A). In his conference in chief, he staid that he went to a sales taxation bureau and met an officer, along with a papers. The officer refused to accept a papers observant that first, a allotment has to be finished and afterwards a papers will be accepted. He supportive a complainant (PW-3) per a review with a officer. He (i.e. PW-5) again met a officer, who destined him to send his boss, i.e. a complainant (PW-3). He conveyed this to a complainant (PW-3). He also staid that on a day of raid proceedings, a complainant (PW-3) was accompanied by another chairman and afterwards they went inside a office.
85. In Koli Lakhmanbhai Chanabhai v. State of Gujarat, AIR 2000 SC 210, Sat Paul v. Delhi Administration, AIR 1976 SC 294 and Shyamlal Ghosh v. State of West Bengal, AIR 2012 SC 3539, a Supreme Court has reason that a testimony of a antagonistic declare is not probable to be unconditionally rejected, and can be relied on to a border that it supports a chronicle of a prosecution. It was serve reason that self-assurance can be shaped on such a testimony, if advanced by other arguable evidence. Therefore, testimony of Sachin Arora (PW-5) can't be unconditionally rejected, and a same is applicable where it corroborates with a testimony of other witnesses.
86. Further, a matter of a complainant (PW-3) is unchanging with a censure (Ex. PW-3/A) finished to a CBI. The applicable apportionment of censure (Ex. PW-3/A) accessible is as follows:

“on 31/5/2002 i.e. subsequent day we privately visited sales taxation bureau to determine a contribution and in Room No 902 we met Sh. Girwar Singh (Sr Account officer) and Sh. Lala Ram (Assistant Account officer) in a afternoon and enquired about a box of a firm. Both of them supportive that a matter has been explained to my Accountant a before day and Sh. Girwar Singh told that a volume to settle a things has also been already been intimated to Sachin Arora. we voiced my inability to compensate such a outrageous volume on that Sh. Girwar Singh reduced a same to Rs. 30,000/- by observant that a volume can't be reduced serve as a same has to be common by other members of his team. He asked me to compensate a cheat volume by Monday i.e. 3/6/2002.”

87. Thus, it stands determined that a complainant (PW-3) was called to a sales taxation bureau per some settlement. The approach for bootleg advantage was finished by a appellants to settle a matter conflicting a complainant (PW-3). The mount of a complainant (PW-3) is unchanging and healthy in his censure and as a declare in court. His mount even in cranky conference stood unimpeached. The acquiescence of a schooled comparison warn that there is a counterbalance qua a participation of appellant no.2 during a time of approach also does not reason ground. The statements of PW3, extracted in paragraphs 13 and 14 hereinabove describe to a events of opposite dates. Whereas a testimony extracted in divide 13 relates to a eventuality of 31.05.2002, that accessible in divide 14 relates to a events of 03.06.2002.
88. Learned comparison warn for appellant no.1 placed faith on Rakesh Kapoor (supra), wherein a Supreme Court while relying on Banarasi Dass (supra) reason that in a deficiency of reason with honour to a demand, a indicted can't be convicted and is entitled to a advantage of doubt. In Ashish Kumar Dubey (supra), this Court reason that there was deficient justification to settle approach and acceptance by a accused. The testimony of a complainant declare was reason to be dangerous and in a deficiency of any other evidence, a testimony of a central declare did not enthuse certainty in a chronicle put adult by a prosecution. Thus, a Court reason that approach and acceptance were not proved. In a benefaction case, a complainant (PW-3) had given a arguable testimony, inspected by a censure (Ex. PW-3/A). The complainant has not been shown to be an meddlesome witness-such that he had any specific seductiveness in secretly implicating a appellants. The appellants do not explain to have known, or had any past exchange with a appellant. The reason given by appellant No. 1 in his matter accessible underneath Section 313 Cr. P.C. is not convincing If not a appellants, some other officer would have examined a complainants casein audit. Thus, merely by stealing a appellants entrapped, a complainant could not have avoided a consequences of his sales taxation record not being complete. The acceptance of a cheat has been advanced by a other assign witnesses, including a shade declare (PW-4), liberation declare (PW-8) and a TLO (PW-14). Their testimonies have been extracted, insofar as they are relevant, in a after partial of a judgment. Therefore, Ashish Kumar Dubey (supra) and a aforementioned cases are of no assistance to a appellants.
89. In B. Jayaraj (supra), a complainant did not support a box of a assign and there was no other declare to infer a approach of a bribe. The Supreme Court reason that in a deficiency of justification to settle demand, a small liberation can't form a basement of self-assurance underneath Sections 7 and 13(1)(d)(i) and (ii) of a Act. The contribution in B. Jayaraj (supra) are opposite to a benefaction case, given a complainant (PW-3) has inspected a box of a prosecution. B. Jayaraj (supra) has no focus to a benefaction case.
90. Reliance placed on Madan Mohan Lal Verma (supra) by a appellants also does not allege their case. In a benefaction case, a assign had not sought to rest customarily on a testimony of a complainant (PW-3). Sachin Arora (PW-5) deposed that he had met a appellants before a trap was laid. The shade declare (PW-4) has also inspected a chronicle of a complainant with honour to a acceptance of a bribe. Moreover, in State of U.P. v. Zakaullah, (1998) SCC (Crl.) 456, a Supreme Court has celebrated that a justification of a complainant requires larger scrutiny, nonetheless it can't be deserted as he is depressed by a accused.
91. Banarasi Dass (supra), relied on by a schooled comparison warn for appellant no.1, was a box where a approach was finished by a Patwari to a complainant and a motorist concomitant a complainant. In a pronounced case, during a trap, a GC annals were kept on a list when a liberation witnesses reached a spot. Both a complainant and a motorist (shadow witness) were announced hostile. The military and executive central (recovery witnesses) were not benefaction when approach and acceptance took place and their justification to that outcome was hearsay. The Supreme Court reason that given a liberation witnesses were not eyewitnesses to a approach and acceptance, in deficiency of any justification of approach and acceptance, a accused-appellant can't be convicted. It was serve reason that approach and acceptance is a sine qua non for a self-assurance of offences underneath Section 5 of a aged PC Act (Section 7 of a new Act). It is impending to note that in Banarasi Dass (supra), nonetheless a complainant did support a box of a assign to some extent, she was announced antagonistic given she probably denied a essential mixture to move home a shame of a accused.
92. The contribution of a benefaction box are opposite to a contribution of Banarasi Dass (supra) and a same provides no assistance to a appellants. In a benefaction case, a complainant (PW-3) inspected a box of a assign with honour to a approach and acceptance of bribe, distinct a complainant in Banarasi Dass (supra). The shade declare (PW-4) also inspected a assign while observant that cheat of Rs.20,000/- was given to a appellant no.1. Their testimonies uphold a contribution mentioned in a liberation memo (Ex. PW-3/E).
93. Moreover, Sachin Arora (PW-5), in his cranky conference staid that:

“It is scold that on 3.6.2002 we was destined by Mr. Katyal to strech during STO in room No.902. It is scold that when we reached a STO, we found Mr. Katyal alongwith one chairman and a officers of review group whom we used to accommodate earlier.”

(Emphasis supplied)

94. In M.O. Shamsudhin v. State of Kerala, (1995) 3 SCC 351, it has been celebrated that there is no sequence that justification of any complainant in a temptation box should be advanced in all element particulars, differently it can't be acted upon. In a benefaction case, a complainant had evidently acted on a information perceived from his accountant (PW-5) and visited a STO to accommodate a appellants. The same stands advanced with a complainant’s testimony and a censure (Ex. PW-3/A). Sachin Arora (PW-5) had deposed that he had met a review officers before 03.06.2002, i.e. when a trap was laid. Therefore, statements of a accountant (PW-5), a complainant (PW-3) and a censure (Ex. PW-3/A) mount advanced on all element particulars.
95. The prosecution/CBI relied on a sound recording of a trap record to allege a box in substantiating a acceptance of a cheat money. The schooled Trail Court has also relied on a same. Therefore, it becomes essential to plead a admissibility of a justification of sound recording finished during a trap proceedings.

96. Section 3 of a Indian Evidence Act, 1872 creates any electronic record constructed in justification for a review to a court, a documentary evidence. When a ask is an ‘electronic record’ within a clarification of Section 2(1)(t) of a Information Technology Act, 2000 (hereinafter referred as ‘IT Act’), it contingency be filed along with a certificate in correspondence of a conditions mentioned in Section 65B of a Evidence Act. However, if a strange electronic record is constructed in a court, a correspondence of Section 65B is not mandatory.
97. It is initial to be ascertained, possibly a transcription (Ex. PW-3/G) falls within a range of Section 2(1)(t) of a IT Act. ‘Electronic record’ is tangible as:

“(t) “electronic record” means data, record or information generated, picture or sound stored, perceived or sent in an electronic form or micro film or mechanism generated micro fiche”

(Emphasis supplied)

98. Section 2(1)(r) of a IT Act, defines ‘electronic form’ as:

“(r) “electronic form” with anxiety to information means any information generated, sent, perceived or stored in media, magnetic, optical, mechanism memory, micro film, mechanism generated micro fiche or identical device”

(Emphasis supplied)

99. Section 2(1)(i) of a IT Act, defines a ‘computer’ as:

“(i) “computer” means any electronic, magnetic, visual or other high-speed information estimate device or complement that performs logical, arithmetic, and memory functions by manipulations of electronic, captivating or visual impulses, and includes all input, output, processing, storage, mechanism software, or communication comforts that are connected or associated to a mechanism in a mechanism complement or mechanism network”

(Emphasis supplied)

100. The digital recorder annals a sound in an ‘electronic form’. The transcription cum voice marker memo (Ex. PW-3/F) was finished on a ‘computer’ by Insp. Amrik Raj (PW-13) by conference a sound recording from a review duplicate of a cassette. He staid that “I have prepared Ext. PW3/F on mechanism and not by my hand. we know how to work a computer.” Therefore, a ‘computer’ on that a transcription cum voice marker memo (Ex. PW-3/F), as good as a digital recorder on that a sound was recorded, come underneath a clarification of ‘computer’, and a transcription (Ex. PW-3/G) as good as a sound recording in a digital recorder is an ‘electronic record’ underneath a supplies of IT Act and a Evidence Act. Thus, unless a same digital recorder, on that a sound was accessible on 03.06.2002, is constructed in a Court, a transcription (Ex.

PW-3/G) would customarily be accessible with a certificate in correspondence of Section 65B of a Evidence Act. In Anvar P.V. (supra), a Supreme Court has celebrated that a Evidence Act does not anticipate or assent a reason of an electronic record by verbal justification if mandate underneath Section 65B of a Evidence Act are not complied with.

101. It is staid law that delegate justification is customarily accessible in Court when a chairman who prepared a duplicate of a strange document, contingency have seen a strange ask himself. (See Bank of Baroda, Bombay v. Shree Moti Industries, Bombay and others, AIR 2008 Bom 201). A conference of a record reveals that Insp. Amrik Raj (PW-13) had not listened a strange recording from a digital recorder.
102. Relevant apportionment of a transcription cum voice marker memo (Ex. PW-3/F) reads as follows:

“The review duplicate of a cassette accessible on 3.6.2002 of a review between Sh. Rajpal Katyal above named and Sh. Girwar Singh, Sr. Audit Officer, O/o A.G. Audit Delhi a accused, has been extrinsic in a cassette recorder/player and played … … … .

Thereafter, on their acknowledgment that this cassette contains a same review that had taken place on 3.6.2002, a above pronounced cassette was again played and transcription of a review accessible in a cassette on 3.6.2002 has been prepared alongwith a name of a speakers as identified.”

(Emphasis supplied)

103. Insp. Amrik Raj (PW-13) in conference in arch stated:

“I also prepared a transcription of doubt review between a complainant Rajpal Katiyal and indicted Girwar Singh by personification and conference audio cassette accessible during a spot. Transcription was prepared in a participation of witnesses Sh. Mann Singh and Sh. SS Rana.”

104. In his cross-examination, he deposed:

“The cassette was already hermetic from that we prepared a transcription after a opening. We did not surprise a endangered probity about a opening of a pointer and we also did not take accede of a endangered probity to open a pointer of a cassette before scheming a transcription. … … … . we did not surprise to a CFSL Authority per a violation of a pointer of a cassette from that we prepared a transcription.”

105. In his re-examination, he stated:

“I state that a transcription was prepared after listening a review duplicate of a cassette accessible on 3.6.2002 of a review between Sh. Rajpal Katiyal and Girwar Singh. This Memo was prepared and hermetic by me. The review duplicate of a cassette was not in hermetic condition. we was a small bit confused as we had suspicion that a Ld. counterclaim Counsel is seeking about a cassette used for recording a citation voice. we wanted to contend that a doubt was about a pointer on a cassette that is manufacturer pointer on a cassette.”

(Emphasis supplied)

106. Therefore, it is transparent that Insp. Amrik Raj (PW-13) finished a transcription from a review cassette that was finished on 03.06.2002.

Consequently, a transcription (Ex. PW-3/G) is unfit in justification and a same can't be looked into.

107. Insp. Amrik Raj (PW-13), Insp. Umesh Vashishth (PW-14) and Mann Singh (PW-4) deposed on a same lines with honour to a duplicating of a recording and sealing of a cassette. SI Prem Nath, who carried out a duplicating of a cassettes, was not finished declare by a prosecution. Insp. Umesh Vashishth (PW-14), in his conference in arch staid that:

“The pronounced accessible review was eliminated into dual audio cassettes with a assistance of an instrument. One cassette was hermetic after jacket it into a cloth wrapper, with CBI pointer and a same was remarkable as “A”. … … … . Another duplicate of cassette was kept unblocked for a review purpose.”

108. In his cross-examination, he deposed that:

“The review that was accessible in a Samsung Digital Recorder was eliminated into dual detached audio cassettes, out of that one was hermetic and a other audio cassette was not sealed. After send of a review from Digital Recorder into a cassette, a review in Digital Recorder was deleted. Prem Nath Sub Inspector was in a trap party. After holding a Digital Recorder from a complainant, it was listened and afterwards Sub Inspector Prem Nath eliminated a review into a cassette. Probably this was not created in a Recovery Memo that Sub Inspector Prem Nath eliminated a review into a cassette. we did not record a matter of SI Prem Nath to a outcome that he eliminated a review into a cassette from Digital Recorder.”

(Emphasis supplied)

109. It appears that SI Prem Nath finished dual copies from a sound accessible in a digital recorder on dual empty cassettes. One of a cassettes was hermetic and remarkable ‘A’ and a other was kept unblocked for review purposes. The strange recording from a digital recording was deleted after copies were finished on dual detached empty cassettes. The hermetic cassette remarkable ‘A’ was afterwards sent to CFSL for voice research of a appellants and a complainant (PW-3).
110. Insp. Amrik Raj (PW-13) staid that:

“I do not remember during this theatre if we compared review duplicate of a cassette with a strange cassette. we also do not remember if we mentioned such comparison in any Memo or document. Now a declare is shown a record and after going by a same he states that he did not review a strange cassette with a review duplicate of a cassette. … … … . We did not record a review duplicate of a cassette on a record along with a charge-sheet”.

(Emphasis supplied) Therefore, conjunction a CFSL news on sound research nor a transcription (Ex.PW-3/G) is shaped on a strange recording finished on 03.06.2002. The testimony of a consultant declare to this outcome is also unreliable. It is irrelevant that a parcels perceived by Rajinder Singh (PW-

1) had a seals intact. In a benefaction circumstances, merely anticipating a seals in scold condition does not make any difference, given it is an certified position that a duplicate of a sound recording was sent and not a original. Thus, it would need conference possibly a assign has been means to settle a shame of a appellants dehors a voice recordings.

111. With courtesy to acceptance of a cheat amount, a complainant (PW-

3) in his conference in chief, inter alia, staid that:

“After brief introduction, we told a indicted persons that we could arrange customarily Rs. 20,000/- and a change volume would be paid by Sachin Arora after on to them. Mr. Mann Singh accompanied me as it was motionless in CBI bureau that he will sojourn with me. We gave a volume to Girwar Singh. ‘We’ means ‘I’ handed over a sinister volume of Rs. 20,000/- to Girwar Singh.”

(Emphasis supplied)

112. The liberation memo (Ex.PW-3/E) reads as follows:

“After someday a complainant extended a cheat volume towards Shri Girwar Singh and told him that this time he could arrange customarily Rs. 20,000/- and a remaining cheat volume as demanded will be delivered after by a persons accompanying. At this a indicted supposed a cheat volume from his right palm and after counting with both a hands kept a same in his left palm and after that he went out to give a signal. The complainant also arguable a same chronicle of shade witness……”

(Emphasis supplied)

113. The complainant (PW-3) as good as a shade declare (PW-4) rightly identified appellant no. 1 in court. Shadow declare (PW-4) staid that:

“… … . Thereafter we came out and gave a pre-appointed signal. On receiving a vigilance CBI group entered a room and we also followed them.Enquiries were finished by a CBI officials from me as to who had supposed a income and we told that Girwar Singh had supposed a cheat volume from Mr. Katyal.”

(Emphasis supplied)

114. In his cranky examination, he staid that:

“It is scold that while fluctuating a cheat volume towards Girwar Singh, a complainant told Girwar Singh that he could arrange customarily Rs.20,000/- and remaining volume will be delivered shortly by a chairman concomitant him. It is improper to advise that after usurpation a (sic.) cheat amount, indicted Girwar Singh counted a same with his both hands and after that kept a same in his left hand. … … … . It is improper to advise that complainant Mr. Katyal did not offer any income to indicted No.1. It is also improper to advise that indicted No.1 did not accept any volume or income from a complainant.”

(Emphasis supplied)

115. It is impending to note that nonetheless shade declare (PW-4) resiled from his progressing mount with honour to a counting of a cheat (this apparent counterbalance in a matter of PW4 is dealt with a small later), he arguable that cheat of Rs.20,000/- was supposed by a appellant no.1. The shade declare (PW-4) advanced a liberation memo (Ex. PW-3/E) on all element aspects and deposed that a complainant (PW-3) and a appellant no. 1 started articulate about some case. Thereafter, a complainant (PW-3) gave a sinister GC annals to a appellant no. 1. This establishes that a appellant no. 1 supposed a cheat amount.
116. S.S. Rana (PW-8) narrated a whole trap proceedings. Although, he did not see a acceptance of cheat volume himself nonetheless he accompanied a CBI officers when a shade declare (PW-4) gave a pre-determined vigilance of acceptance. S.S. Rana (PW-8) in his conference in arch staid that:

“Inspector Vashishth inquired from Sh. Raj Pal Katyal and Sh. Mann Singh about a transaction of cheat income and a review that took place between Sh. Raj Pal Katyal and a accused. Sh. Raj Pal Katyal and Sh. Mann Singh both disclosed to Inspector Vashishth that indicted Girwar Singh had supposed a cheat income in his right palm and afterward he counted a same with both hands. Sh. Raj Pal also disclosed that after usurpation a cheat money, indicted Girwar Singh had focussed towards one side while remained sitting on his chair.”

117. Therefore, it is protected to interpretation that a matter of S.S. Rana (PW-

8) also uphold to a sequence of events that took place in room no.902 on 03.06.2002. The sequence of events with honour to a raiding group entering room no. 902 was also advanced by a testimony of Umesh Vashishth, TLO (PW-14). He staid that:

“… … … .Immediately on receiving a signal, we along with other trap group members including other declare Sh. Rana rushed inside a room No.902 and found that complainant along with his Accountant Sachin Arora and a shade declare Sh. Man were sitting and in front of them indicted Girwar Singh and Lala Ram were sitting. … … .”

118. The acceptance of cheat is serve determined by a palm rinse of both hands of appellant no.1. The palm rinse of both a hands of a appellant no. 1 was taken in sodium carbonate resolution that incited pink. Thereafter, a apportionment of runner from where a sinister volume was recovered was also cleared in a resolution of sodium carbonate that incited pink. The bottles with a resolution of sodium carbonate were hermetic during a mark and sent to CFSL for analysis.
119. The liberation of a cheat is also determined in a benefaction case. During a pre-raid proceedings, GC annals to a sum of Rs.20,000/- were constructed by a complainant (PW-3) and regulating a same GC annals a reason was given to a complainant, shade declare (PW-4) and liberation declare (PW-8). The sequence numbers of a GC annals (Ex. P1/1 to

40), that were to be used in a trap record were remarkable in Annexure A of a handing over memo (Ex. PW-3/C). TLO (PW-14), after entering a room with a rest of a raiding group on receiving a vigilance from PW- 4, inquired a shade declare (PW-4) about a transaction of bribe. Shadow declare (PW-4), in his conference in arch staid that a complainant and appellant no.1 discussed a matter and thereafter, a complainant handed over a cheat volume to a appellant no.1. The TLO (PW-14) deposed that he challenged appellant no.1 of perfectionist and usurpation a cheat of Rs.20,000/- from a complainant, nonetheless he remained silent. The complainant disclosed that after holding a cheat amount, while he was giving a missed call to a pre-fed number, appellant no.1 leaned towards his left and sat behind true again. TLO (PW-14) inquired from appellant no.1 with courtesy to a dissimulation of a cheat nonetheless he again remained silent.

120. Thereafter, hunt of his list drawer and of other places was conducted. During a search, Mann Singh (PW-4) supportive that a cheat income was kept underneath a runner on a building of a bureau room, towards left side of a accused. S.S. Rana (PW-8) was afterwards asked to redeem a GC notes. They were afterwards destined to total a numbers on GC annals with a ones remarkable in Annexure A of handing over memo (Ex. PW-3/C).
121. Shadow declare (PW-4), in his cranky conference staid that:

“I have seen a GC Notes Ex.P1/1 to 40 and after tallying their numbers we can contend that these are a same GC annals that were used as (sic.) trap income and recovered from underneath a carpet.”

122. The liberation declare (PW-8), in his conference in arch staid that:

“I picked adult a gold of Rs.20,000/- and compared a numbers with a numbers created in a paper prepared in CBI bureau earlier. The numbers of GC Notes were tallied with a numbers created in a paper Ex, PW-3/C. … … … . we have seen GC Notes Ex.P1/1 to Ex.P1/40 and after tallied their numbers, we can contend that these are a same GC annals that we recovered.”

123. TLO (PW-14) deposed that palm washes of hands of appellant no.1 and a runner were taken, and a dull resolution incited pink. The same was eliminated to potion bottles and sent to a CFSL for analysis. The CFSL news (Ex. PW-2/A) reads as follows:

“Results of Analysis:

The Exhibit RHW, LHW and CW gave certain tests for Phenolphthalein and Sodium carbonate.”

124. Therefore, we do not find consequence in a acquiescence of a schooled comparison warn for appellant no.1 that given a cheat volume was not recovered from a chairman of appellant no.1, it can't be construed that he was in possession of a same. The aforesaid contribution finish a sequence of events from trap record to liberation proceedings. The pronounced sequence of events have been advanced by a complainant (PW-3), shade declare (PW-

4), liberation declare (PW-8) as good as a TLO (PW-14). The liberation memo (Ex. PW-3/E) also stands advanced by their testimony. we also do not find consequence in a acquiescence that there are contradictions in a testimony of a complainant (PW-3). It is a staid position that teenager discrepancies in a testimony of a witnesses are organisation to start and are natural, when a statements are accessible after a poignant duration of time. Minor discrepancies that do not strike to a base of a case, can be ignored.

125. As distant as a acquiescence that there is counterbalance in a liberation memo (Ex. PW-3/E) and a statements of a complainant (PW-3) as good as a shade declare (PW-4) is concerned, once again we do not find any piece in a same. The complainant (PW-3), nonetheless in a liberation memo (Ex. PW-3/E) has staid that when he was giving a vigilance on a dungeon phone, he saw a appellant no. 1 gaunt towards his left side to disguise a cheat money, he has nowhere staid in his conference before a probity that he saw a dissimulation holding place. There is a probability of witnesses’ memory unwell overdue to such a prolonged relapse of time in conducting a conference of a complainant (PW-3). The liberation memo (PW-3/E) was accessible on 03.06.2002, given his conference before a Court took place on 01.08.2005, i.e. some-more than 3 years later.
126. Similarly, a shade declare (PW-4), in his cranky examination, staid that there is a probability that on seeking a complainant (PW-3), he supportive a CBI officials that while he was bustling giving a vigilance to CBI by his dungeon phone (pre-determined signal), he saw a appellant no.1 gaunt towards his left side and disguise a cheat amount. The shade declare was cranky examined on 18.10.2005 i.e. some-more than 3 years after a recording of a liberation memo. However, when it was put to a shade declare (PW-4) in a cranky examination, being a healthy witness, he staid that it was indeed probable that a complainant saw appellant no. 1 gaunt for concealing a cheat income and supportive a same to a CBI officials.
127. Mr. Mittal has relied on a matter of liberation declare (PW-8) to contention that there exists a doubt with honour to a participation of phenolphthalein powder, given a pronounced declare staid to have seen ‘lightest pinkish colour solution’. we find no consequence in this acquiescence given a notice of colour is biased in nature. It would be laboured to rest on such a matter to reason that phenolphthalein energy might not have been present. The liberation declare (PW-8) is not a technical chairman to overthrow on a same. Moreover, a CFSL news (Ex. PW-2/A) clearly indicates a participation of phenolphthalein powder and a pronounced news has not been challenged by producing any reasoning paradoxical evidence.
128. Learned comparison warn had placed faith on G.V. Nanjundiah (supra) and Pyare Lal (supra) to contention that a justification of a batch declare can't be relied upon. However, a same is of no assistance to a appellants. In a benefaction case, a appellants have unsuccessful to indicate out as to how a eccentric witnesses (i.e. PW-4 and PW-8), have any vested seductiveness in a outcome of a box or any reason for that they would implicate a appellants. Merely, given Mann Singh (PW-4) was declare to other CBI cases does not make him a batch witness. In fact, conference of a matter of Mann Singh (PW-4) reveals that he had resiled from his progressing matter during some occasions. Had he been a batch witness, he would have inspected a box of assign in a entirety. In Zakaullah (supra), a Supreme Court has celebrated that:

“9. It is in justification that PW6 was examined as a declare in a box during Moradabad in that he himself was a complainant conflicting a alloy who demanded cheat from him. He also certified that he was a declare in dual other cases nonetheless he was not nonetheless examined in those cases. Would such qualifications describe him a non-independent witness? Similarly, a small fact that PW7 was a motorist of a car in that a officials went to a place, resulted in his losing a station as “independent witness.”

10. The prerequisite for “independent witness” in cases involving military raid or military hunt is incorporated in a supervision not for a purpose of assisting a indicted chairman to bypass a justification of those panch witnesses who have had some familiarity with a military or officers conducting a hunt during some time or a other. Acquaintance with a military by itself would not destroy a man’s eccentric outlook. In a multitude where military impasse is a unchanging materialisation many people would get proficient with a police. But as prolonged as they are not contingent on a military for their vital or autocracy or for any other matter, it can't be pronounced that those are not eccentric persons. If a military in sequence to lift out central duties, have sought a assistance of any other chairman he would not pledge his eccentric impression by giving assistance to military action. The requirement to have eccentric declare to uphold a justification of a military is to be noticed from a picturesque angle. Every citizen of India contingency be reputed to be an eccentric chairman until it is valid that he was a contingent of a military or other officials for any purpose whatsoever. (Hazari Lal v. Delhi Administration, (1980) 2 SCC 390″

(Emphasis supplied)

129. Therefore, merely given a declare was endangered in other cases or had before familiarity with a military officers, would not outcome in a detriment of his station as an eccentric witness. The appellants have also unsuccessful to uncover a dependability of PW-4 or PW-8 on a CBI officials, endangered in a benefaction case. Both PW-4 and PW-8 were supervision employees. They enjoyed confidence of their station as supervision servants. There was no reason for them to implicate a appellants falsely. Moreover, a benefaction box is not shaped customarily on customarily a testimony of PW-4 and PW8. The testimony of a complainant (PW-3) and TLO (PW-14) mount advanced with that of PW-4 and PW8. From a aforesaid discussion, it is transparent that a cheat volume of Rs.20,000/- was recovered from appellant no.1.
130. I do not find consequence in a acquiescence of a schooled comparison warn that a participation of Sachin Arora (PW-5) during a time of trap record can be doubted. Sachin Arora (PW-5) had himself certified that when he reached STO, he saw a complainant with another chairman (shadow witness). He was also benefaction in room no.902 during a applicable time and certified to pointer a liberation memo (Ex. PW-3/E).

131. Learned comparison warn for appellant no.1 placed faith on Suraj Mal (supra), wherein a 3 witnesses who witnessed a holding of cheat were announced hostile. In this case, a conference probity had reason a justification of a assign to be unreliable, and transparent one of a accused, while convicting a appellant. It was in these resources that a appellant in a pronounced box was acquitted. The contribution of M.K. Harshan (supra) are opposite from a contribution of a benefaction case. The testimony of a witnesses in a pronounced box was frequency doubtful, and could not be pronounced to have determined a approach and acceptance. Therefore, both a cases are of no assistance to a appellants, as they spin on their possess facts.
132. Section 20 reads as follows:

“20. Presumption where open menial accepts advantage other than authorised remuneration.

(1) Where, in any conference of an crime punishable underneath territory 7 or territory 11 or proviso (a) or proviso (b) of sub-section (1) of territory 13 it is valid that an indicted chairman has supposed or achieved or has concluded to accept or attempted to obtain for himself, or for any other person, any advantage (other than authorised remuneration) or any profitable thing from any person, it shall be presumed, unless a discordant is proved, that he supposed or achieved or concluded to accept or attempted to obtain that advantage or that profitable thing, as a box might be, as a belligerent or prerogative such as is mentioned in territory 7 or, as a box might be, nonetheless care or for a care that he knows to be Inadequate.

(2) Where in any conference of an crime punishable underneath territory 12 or underneath proviso (b) of territory 14, it is valid that any advantage (other than authorised remuneration) or any profitable thing has been given or offering to be given or attempted to be given by an indicted person, it shall be presumed, unless a discordant is proved, that he gave or offering to give or attempted to give that advantage or that profitable thing, as a box might be, as a belligerent or prerogative such as is mentioned in territory 7, or, as a box might be, nonetheless care or for a care that he knows to be inadequate.

(3) Notwithstanding anything contained in sub-section (1) and (2), a probity might decrease to pull a supposition referred to in possibly of a pronounced sub-sections, if a advantage or thing aforesaid is, in a opinion, so pardonable that no deduction of crime might sincerely be drawn.”

133. In Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2000) 8 SCC 571, it was celebrated that:

“12. The grounds to be determined on a contribution for sketch a supposition is that there was arrangement or acceptance of gratification. Once a pronounced grounds is determined a deduction to be drawn is that a pronounced advantage was supposed “as belligerent or reward” for doing or lenient to do any central act. So a word “gratification” need not be stretched to meant prerogative given prerogative is a outcome of a supposition that a probity has to pull on a significant grounds that there was arrangement of gratification. This will again be fortified by looking during a collocation of dual expressions adjacent to any other like “gratification or any profitable thing”. If acceptance of any profitable thing can assistance to pull a supposition that it was supposed as belligerent or prerogative for doing or lenient to do an central act, a word “gratification” contingency be treated in a context to meant any arrangement for giving compensation to a open menial who perceived it.”

134. Therefore, once it is determined by a assign that a acceptance was “gratification”, Section 20 raises a rebuttable supposition that a open menial supposed such advantage for a ‘motive or reward’. The shortcoming to infer shifts on a indicted to infer that he did not accept a bootleg gratification. However, if a indicted fails to oppose a pronounced presumption, afterwards a Court might find him guilty of a crime underneath a Act. In a benefaction case, a assign clearly determined a approach as good as a acceptance of income by a appellants. It was afterwards for a appellants to liberate a shortcoming expel on them by Section 20. However, they have unsuccessful to liberate a same by heading reasoning evidence. In Girish Babu (supra), there was no arguable justification of approach or acceptance finished by a appellant, and a Court while relying on Suraj Mal (supra) reason that small liberation of a cheat would not entail a self-assurance underneath Section 7 of a Act. Suraj Mal (supra), M.K. Harshan (supra) and Girish Babu (supra) thus, have no focus in a contribution of this case.

135. Mr. Mittal submits that a record per to a organisation of a complainant (PW-3) was not found in a possession of a appellants. Further, he submits that in perspective of a counterbalance in a statements of a complainant (PW-3), initial that a ST-I form was deficient in a record and later, that a ST-I form was not released during all, there was no belligerent for perfectionist bootleg advantage by a appellants. He relied on a testimony of DW-1 to contention that there existed no reason for a appellant no.1 to approach bootleg advantage given a record of complainant’s organisation was not in a possession of appellant no.1.
136. The prolongation cum seizure memo (Ex. PW-4/H) clearly indicates that a record of a complainant’s organisation was seized on 03.06.2002 by TLO (PW-14) from Amar Singh Rawat by Gurubachan Lal, Senior Audit Officer (PW-11). The same is mentioned in a liberation memo (Ex. PW- 3/E). Gurubachan Lal (PW-11) in conference in arch staid that:

“Record that was seized by CBI team, was per to Audit Party No.10. Audit No.10 was consisting of Girwar Singh, Senior Audit Officer, Lala Ram, Assistant Audit Officer and A.S. Rawat, Senior Auditor. Girwar Singh and Lala Ram both indicted are benefaction in a Court (correctly identified).”

137. Therefore, we find no consequence in a acquiescence of a schooled comparison warn that a record was not in possession of a appellants. PW-11 clearly deposed that a record pertained to Audit No.10 and that Audit no.10 comprised of a appellants in a benefaction case. Even if a appellants were not in a position to assistance a complainant, it is incomprehensible given explanation

(d) to Section 7 of a Act provides that: “(d) “A belligerent or prerogative for doing.” A chairman who receives a advantage as a belligerent or prerogative for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.”

138. In a benefaction case, detached from a crime underneath Sections 13(1)(d) and 7, a appellants were charged and convicted underneath Section 120B of a IPC.
139. Section 120A, IPC defines rapist swindling to meant – when dual or some-more persons determine to do, or means to be finished (a) an bootleg act, or (b) an act, that not bootleg by bootleg means, such an agreement will be termed as a rapist conspiracy. In K.R. Purushothaman v. State of Kerala, (2005) 12 SCC 631, a Supreme Court reason as follows:

“11. … … … … … In Major E.G. Barsay v. State of Bombay, 1961 CriLJ 828, Subba Rao J., vocalization for a Court has said:

“The crux of a crime is an agreement to mangle a law. The parties to such an agreement will be guilty of rapist conspiracy, nonetheless a bootleg act concluded to be finished has not been done. So too, it is not an partial of a crime that all a parties should determine to do a singular bootleg act. It might contain a elect of a series of acts.”

12. In State v. Nalini and Ors., 1999 CriLJ 3124 it was celebrated by S.S.M. Quadri J. during divide 677:

“In reaching a theatre of assembly of minds, dual or some-more persons share information about doing an bootleg act or a authorised act by bootleg means. This is a initial theatre where any is pronounced to have trust of a devise for committing an bootleg act or a authorised act by bootleg means. Among those pity a information some or all might form an goal to do an bootleg act or a authorised act by bootleg means. Those who do form a claim goal would be parties to a agreement and would be conspirators nonetheless those who dump out can't be roped in as collaborators on a basement of small trust unless they dedicate acts or omissions from that a guilty common goal can be inferred. It is not compulsory that all a conspirators should attend from a pregnancy to a finish of a conspiracy; some might join a swindling after a time when such goal was initial entertained by any one of them and some others might quit from a conspiracy. All of them can't nonetheless be treated as conspirators. Where in pursuit of a agreement a conspirators dedicate offences away or adopt bootleg means to do a authorised act that has a sequence to a intent of conspiracy, all of them will be probable for such offences even if some of them have not actively participated in a elect of those offences.”

13. To consecrate a conspiracy, assembly of mind of dual or some-more persons for doing an bootleg act or an act by bootleg means is a initial and primary condition and it is not compulsory that all a conspirators contingency know any and any fact of conspiracy. Neither it is compulsory that any one of a conspirators takes active partial in a elect of any and any conspiratorial acts. The agreement among a conspirators can be unspoken by compulsory implication. In many of a cases, a conspiracies are valid by a inconclusive evidence, as a swindling is occasionally an open affair. The existence of swindling and a objects are customarily deducted from a resources of a box and a control of a indicted endangered in a conspiracy. While appreciating a justification of a conspiracy, it is obligatory on a Court to keep in mind a obvious sequence ruling inconclusive justification viz. any and any damning business contingency be clearly determined by arguable justification and a resources valid contingency form a sequence of events from that a customarily overwhelming finish about a shame of a indicted can be safely drawn, and no other supposition conflicting a shame is possible. Criminal swindling is an eccentric crime in a Penal Code. The wrong agreement is sine qua non for forming crime underneath a Penal Code and not an accomplishment. Conspiracy consists of a intrigue or composition between dual or some-more persons that might be demonstrate or pragmatic or partly demonstrate and partly implied. Mere knowledge, even discussion, of a devise would not per se consecrate conspiracy. The crime of swindling shall continue compartment a stop of agreement.”

(Emphasis supplied)

140. Thus, a rapist swindling comes into being when dual or some-more persons come to an agreement to do an bootleg act. It is not compulsory that all a persons in a swindling should know everything, or that any confederate should join a swindling during a same time. The swindling continues compartment a agreement is consummated possibly on a completion, or otherwise. The existence of a swindling and a pattern are customarily deducted from a resources of a box and a control of a indicted endangered in a conspiracy. The Supreme Court in Kehar Singh and Ors. v.

State (Delhi Administration), (1988) 3 SCC 609, celebrated that a swindling is might be hatched in secrecy, and it might be formidable to cite approach justification in such cases, and a assign will some-more mostly rest on inconclusive evidence. The Supreme Court in State v. Nalini, (1999) 5 SCC 253, celebrated that all conspirators need not take active partial in a conspiracy. The Supreme Court observed:

“583. Some of a extended beliefs ruling a law of swindling might be epitomised though, as a name implies, a outline can't be downright of a principles.

x x x x x x x x

10. A male might join a swindling by word or by deed. However, rapist shortcoming for a swindling requires some-more than a merely pacifist opinion towards an existent conspiracy. One who commits an sincere act with trust of a swindling is guilty. And one who tacitly consents to a intent of a swindling and goes along with other conspirators, indeed station by while a others put a swindling into effect, is guilty nonetheless he intends to take no active partial in a crime.”
11. According to Section 10 of Evidence Act, once a swindling is determined by a prosecution, afterwards any act of a co-conspirator, that is in avail of a conspiracy, will turn a act of a other co- conspirators. Section 10 reads as follows:

“10. Things pronounced or finished by confederate in anxiety to common design.–Where there is reasonable belligerent to trust that dual or some-more persons have conspired together to dedicate an crime or an actionable wrong, anything said, finished or created by any one of such persons in anxiety to their common intention, after a time when such goal was initial entertained by any one of them, is a applicable fact as conflicting any of a persons believed to so conspiring, as good for a purpose of proof a existence of a swindling as for a purpose of display that any such chairman was a celebration to it. ”

142. The Supreme Court in Central Bureau of Investigation v. V.C. Shukla and Ors., (1998) 3 SCC 410, held:

“40. … … .In traffic with this Section in Sardul Singh v. State of Bombay, 1957 CriLJ 1325, this probity celebrated that it is recognized on good determined management that a element underlining a accepting of justification of a statements, acts and papers of one co-conspirator as conflicting a other is on a speculation of agency. Ordinarily, a chairman can't be finished obliged for a acts of others unless they have been instigated by him or finished with his trust or consent. This territory provides an difference to that rule, by laying down that an sincere act committed by any one of a conspirators is sufficient, (on a ubiquitous beliefs of agency) to make it a act of all. But then, a opening of difference of a Section creates in extravagantly transparent that such judgment of group can be availed of, only, after a Court is confident that there is reasonable belligerent to trust that they have conspired to dedicate an crime or an actionable wrong. In other words, customarily when such a reasonable belligerent exists, anything said, finished or created by any one of them in anxiety to their common goal afterward is applicable conflicting a others, not customarily for a introduce of proof a existence of a swindling nonetheless also for proof that a other chairman was a celebration to it. In Bhagwan Swarup v. State of Maharashtra 1976 CriLJ 860, this probity analysed a territory as follows:-

“(1) There shall be a prima facie justification affording a reasonable belligerent for a Court to trust that dual or some-more persons are members of a conspiracy; (2) if a pronounced condition is fulfilled, anything said, finished or created by any one of them in anxiety to their common goal will be justification conflicting a other; (3) anything said, finished or created by him should have been said, finished or created by him after a goal was shaped by any one of them; (4) it would also be applicable for a pronounced purpose conflicting another who entered a swindling possibly it was said, finished or created before he entered a swindling or after he left it; and (5) it can customarily be used conflicting a co-

conspirator and not in his favour.””

(Emphasis Supplied)

143. Accordingly, a difference oral and act achieved by any one of a confederate will be applicable to infer a impasse of a other indicted persons or co-conspirators in a conspiracy, supposing a Court has reasonable belligerent to trust that a swindling exists. As distant as swindling is concerned, nonetheless assign is probable to allow eccentric justification as to existence of a swindling for Section 10 to operate, it need not infer a same over reasonable doubt (See Nalini (supra)). The sustenance itself states “… where there is reasonable belligerent to trust that dual or some-more persons have conspired together to dedicate a crime….”.
144. Reference might also be placed on Ram Narayan Popli v. Central Bureau of Investigation, (2003) 3 SCC 641, where a Supreme Court reason as under:

“342. It would be suitable to bargain with a doubt of conspiracy. Section 120-B IPC is a sustenance that provides for punishment for rapist conspiracy. Definition of “criminal conspiracy” given in Section 120-A reads as follows:

“120-A. When dual or some-more persons determine to do, or means to be done,–

(1) an bootleg act, or (2) an act that is not bootleg by bootleg means, such an agreement is designated a rapist conspiracy:

Provided that no agreement solely an agreement to dedicate an crime shall volume to a rapist swindling unless some act besides a agreement is finished by one or some-more parties to such agreement in pursuit thereof.”

The elements of a rapist swindling have been staid to be:

(a) an intent to be accomplished, (b) a devise or intrigue embodying means to accomplish that object, (c) an agreement or bargain between dual or some-more of a indicted persons whereby, they turn really committed to concur for a fulfilment of a intent by a means embodied in a agreement, or by any efficacious means, and (d) in a office where a supervision compulsory an sincere act. The hint of a rapist swindling is a wrong multiple and usually a crime is finish when a multiple is framed. From this, it indispensably follows that unless a supervision so requires, no sincere act need be finished in avail of a conspiracy, and that a intent of a multiple need not be accomplished, in sequence to consecrate an indictable offence. Law creation swindling a crime is designed to quell radical energy to do outcome that is gained by a multiple of a means. The support and support that co-conspirators give to one another digest enterprises probable which, if left to particular effort, would have been impossible, allow a belligerent for visiting conspirators and abettors with condign punishment. The swindling is reason to be continued and renewed as to all a members wherever and whenever any member of a swindling acts in avail of a common design. (See: American Jurisprudence, Vol. II, Sec. 23, p. 559.) For an crime punishable underneath Section 120-B, a assign need not indispensably infer that a perpetrators specifically determine to do or means to be finished bootleg act; a agreement might be valid by compulsory implication. Offence of rapist swindling has a substructure in an agreement to dedicate an offence. A swindling consists not merely in a goal of dual or more, nonetheless in a agreement of dual or some-more to do an wrong act by wrong means. So prolonged as such a pattern rests in goal only, it is not indictable. When dual determine to lift it into effect, a really tract is an act in itself, and an act of any of a parties, guarantee conflicting promise, actus contra actum, means of being enforced, if lawful, punishable if for a rapist intent or for use of rapist means.

343. No doubt, in a box of swindling there can't be any approach evidence. The mixture of crime are that there should be an agreement between persons who are purported to collaborate and a pronounced agreement should be for doing an bootleg act or for doing by bootleg means an act that itself might not be illegal. Therefore, a hint of rapist swindling is an agreement to do an bootleg act and such an agreement can be valid possibly by approach justification or by inconclusive justification or by both, and it is a matter of common knowledge that approach justification to infer swindling is frequency available. Therefore, a resources valid before, during and after a occurrence have to be deliberate to confirm about a complicity of a accused.”

(Emphasis supplied)

145. As discussed above, a fact that a initial approach was finished by appellant no.2 on PW-5 and after by both a appellants, on a complainant (PW-3) was a partial of a ‘same transaction’. On a conference of a evidence, it is transparent that a complainant (PW-3) had acted on a information perceived by his accountant (PW-5) to himself revisit a S.T.O. Thus, on 31.05.2002, he was himself a declare to a approach by a appellants, as they lifted a approach on him. The accountant (PW-5) admittedly met with a appellants before a trap proceedings. Apart from a complainant (PW-3), a shade declare (PW-4), liberation declare (PW-8) as good as a TLO (PW-

14) disclosed that appellant no.2 was benefaction in room no.902 during a time of acceptance of a bribe. It is transparent that both a appellants, underneath an agreement and bargain hatched a swindling to accept bootleg advantage underneath a hazard to lift taxation approach conflicting a organisation of a complainant. Thus, a acquiescence of schooled warn for appellant no.2 that no demand, acceptance and liberation qua appellant no.2 are established, is rejected. It has been reason in K.R. Purushothaman (supra) that in many cases, swindling is occasionally an open event and same needs to be valid by a inconclusive evidence. In a benefaction case, a swindling is clearly determined by a sequence of events taken note of hereinabove.

146. Learned warn for CBI placed faith on D. Velayutham (supra) to contention that if a receipt and handing of a cheat volume by one indicted convincingly and inexorably points towards his custodianship of partial of a same cheat volume on seductiveness of a co-accused , afterwards a co-accused can't take a counterclaim of non-handing of a cheat money. In such cases, a co- indicted would be fixed with rapist blame given a comparison officer is in constructive receipt of a bribe. we find consequence in this acquiescence and a appellant no.2 can't take a counterclaim of non-receipt of a cheat amount. Appellant no.2’s impasse in a swindling to approach a cheat volume has been determined over all reasonable doubt. The acceptance of a cheat volume by appellant No. 1 is a partial of a rapist swindling of both a appellants to approach and accept cheat from a complainant.

147. Thus, a approach of a cheat stands determined by a testimonies of a complainant (PW-3), Sachin Arora (PW-5) and a censure (PW-3/A). The acceptance and liberation of a cheat volume also stands determined over any reasonable doubt by a testimonies of a complainant (PW-3), Mann Singh-shadow declare (PW-4), S.S. Rana-recovery declare (PW-8), Umesh Vashishth-TLO (PW-14), liberation memo (Ex. PW-3/E) and a news of CFSL (Ex. PW-2/A). Although, a accountant Sachin Arora (PW-

5) did not entirely support a box of a assign and was announced hostile, he did divulge his familiarity with a appellants before to a trap.

Assessing a whole justification on record, a customarily overwhelming finish reached is that a appellants lifted a approach for bootleg gratification, and supposed a cheat volume of Rs. 20,000/-, that was recovered on 03.06.2002. Accordingly, a self-assurance of a indicted is upheld. The sequence of visualisation is also upheld.

148. For all a aforesaid reasons, we find no consequence in these appeals and a same are, accordingly, dismissed.