Delhi High Court
Hd. Yamin @ Yameen Khan vs State Thr. C.B.I on 16 March, 2026
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 11.03.2026
Judgment pronounced on:16.03.2026
+ CRL.A. 846/2004
MOHD. YAMIN @ YAMEEN KHAN .....Appellant
Through: Mr. Yudhishtar Kahol with Mr. Kunal
Kahol and Mr. Nikhil Kahol,
Advocates.
versus
STATE THR. C.B.I .....Respondent
Through: Mr. Kamal Kant Goel, SPP with
Ms.Jyoti Goel, Advocate.
CORAM:
HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
JUDGMENT
CHANDRASEKHARAN SUDHA, J.
1. In this appeal filed under Section 374 of the Code of
Criminal Procedure, 1973, (the Cr.P.C.) the sole accused, in C.C.
No. 106/2001 on the file of the Special Judge, Delhi, assails the
judgment dated 06.10.2004 and order on sentence dated
12.10.2004 as per which he has been convicted and sentenced for
the offences punishable under Section 7 and Section 13(2) read
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with Section 13(1)(d) of the Prevention of Corruption Act, 1988
(the PC Act).
2. The prosecution case is that the accused, while posted
as Assistant Manager (Accounts) at ITDC, Hotel Samrat, New
Delhi, on 29.11.1996 demanded illegal gratification of ₹500/- from
PW3, whose taxies were attached with the Hotel Samrat on panel
basis, for disbursing the payment of taxi bills, which had already
been passed and approved by the General Manager at ITDC, Hotel
Samrat, New Delhi.
3. Sanction for prosecution was accorded by PW2, the
then Vice President (Credit and Collection), ITDC, New Delhi,
vide Ext. PW2/A.
4. Crime no. RC 83(A)/1996, dated 29.11.1996 was
registered on the basis of PW3/A complaint of PW3. After
completion of investigation by PW10, a charge-sheet dated
29.05.1997 was filed against the appellant alleging the commission
of the offences punishable under the aforementioned sections.
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5. When the accused was produced before the trial court,
all the copies of the prosecution records were furnished to him as
contemplated under Section 207 Cr.P.C. After hearing both sides,
the trial court vide order dated 20.02.1998, framed a Charge under
Section 7 and Section 13(2) read with Section 13(1)(d) of the PC
Act, which was read over and explained to the accused, to which
he pleaded not guilty.
6. On behalf of the prosecution, PWs. 1 to 11 were
examined and Exhibits PW1/A-D, P1-56, PW2/A, PW3/A,
PW4/A-B were marked in support of the case.
7. After the close of the prosecution evidence, the accused
was questioned under Section 313(1)(b) Cr.P.C. regarding the
incriminating circumstances appearing against him in the evidence
of the prosecution. The accused denied all those circumstances and
maintained his innocence. He submitted that he has been falsely
implicated in this case due to personal and union rivalry and at the
instance of interested persons. According to him, PW3, who was
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related to union leader one S.S. Upadhyaya, had a grudge against
him as he had refused to process and release payments in violation
of the prescribed rules and procedures of ITDC. PW3 wanted early
release of certain bills and payments which were not due at the
relevant time, and when he did not accede to such demands, a false
complaint was lodged against him. He further submitted that he
had always discharged his duties strictly in accordance with the
departmental rules and guidelines and that he never came into
direct contact with taxi operators, as their bills were processed
through the prescribed channel. He asserted that during his long
service of about 26 years, no complaint of corruption or
misconduct had ever been made against him and that his integrity
and efficiency had been recognized by the department, even
earning him honorarium and responsible assignments. The
investigation has been unfair and biased; the evidence had been
fabricated and manipulated. He denied having demanded or
accepted any bribe or illegal gratification from PW3 and claimed
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that he had been made a victim of a conspiracy hatched by
interested union elements to settle personal scores.
8. On behalf of the accused, DWs. 1 to 7 were examined.
No documentary evidence was adduced.
9. On consideration of the oral and documentary evidence
on record and after hearing both sides, the trial court, vide the
impugned judgment dated 06.10.2004, held the accused guilty of
the offences punishable under Section 7 and Section 13(2) read
with Section 13(1)(d) of the PC Act. Vide order on sentence dated
12.10.2004, the appellant has been sentenced to undergo rigorous
imprisonment for a period of six months along with fine of
₹5,000/-, and in default of payment of fine, to undergo simple
imprisonment for three months for the offence punishable under
Section 7 of the PC Act, and to rigorous imprisonment for one year
along with fine of ₹5,000/-, and in default of payment of fine, to
undergo simple imprisonment for three months for the offence
punishable under Section 13(2) read with Section 13(1)(d) of the
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PC Act. The sentences have been directed to run concurrently.
Aggrieved, the accused has preferred this appeal.
10. The learned counsel for the appellant assailed the
impugned judgment and order of sentence, submitting that the
conviction recorded by the trial court is contrary to the evidence on
record and is based upon conjectures and surmises rather than a
proper appreciation of the material placed before the Court. It was
contended that the prosecution case suffers from serious
procedural irregularities which cast a grave doubt on its
authenticity. In this regard, the learned counsel pointed out that
though the FIR in the present case was allegedly registered on
29.11.1996, the same was received in the Court of the learned
Special Judge only on 02.12.1996 at about 4:00 PM. According to
the learned counsel, this unexplained delay of nearly four days in
forwarding the FIR to the Court strikes at the root of the
prosecution case and indicates that the documents relied upon by
the prosecution could have been prepared subsequently. It was
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further submitted that the handing over memo, which was
allegedly prepared prior to the trap proceedings, does not bear the
Crime number, thereby lending support to the defence contention
that the prosecution version was reconstructed at a later stage.
10.1. It was further submitted that the testimony of the
prosecution witnesses suffers from serious contradictions which
render the prosecution version unreliable. It was contended that the
evidence of PW7, Manager (Vigilance and Security), shows that
he was called by the CBI officials at about 3:30 PM on the date of
the alleged incident and when he reached the office of the accused
he found the CBI officers already holding the accused by his
wrists. According to the learned counsel, this statement clearly
contradicts the prosecution case that PW3 and shadow witness had
again approached the accused at about 5:00 PM and that the
accused was apprehended only after the alleged acceptance of the
bribe amount thereafter. Such contradiction regarding the time of
apprehension of the accused, it was argued, seriously undermines
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the prosecution story and creates a substantial doubt regarding the
manner in which the trap proceedings were allegedly conducted.
10.2. The learned counsel further submitted that the evidence
on record indicates that the phenolphthalein powder used during
the trap proceedings was already available in the room of the
investigating officer and the demonstration was conducted there
prior to the trap. According to the learned counsel, this
circumstance raises a possibility that the powder might have been
carried to the spot beforehand and that the alleged recovery of
tainted currency notes was manipulated. The learned counsel
further contended that PW1, the shadow witness had stated that
PW3 was provided with an audio cassette recorder to record the
conversation between PW3 and the accused. However, no such
recording was produced before the Court, which creates a serious
doubt regarding the prosecution version of the alleged demand and
acceptance of bribe. It was also argued that although several
persons were present in the office premises and the surrounding
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area, no independent witness from the spot was joined in the trap
proceedings, thereby casting doubt on the fairness and
transparency of the investigation.
10.3. It was next submitted that the prosecution failed to
establish the very motive attributed to the appellant for allegedly
demanding illegal gratification. According to the learned counsel,
the evidence on record clearly demonstrates that PW3’s bills had
not been approved or passed by the competent authority on the
date of the alleged incident and therefore the payment could not
have been released on that day in any event. It was argued that the
departmental procedure required the approval and signature of the
General Manager before any payment could be made and the
evidence of the defence witnesses as well as the departmental
records clearly indicates that such approval had not been granted at
the relevant time. The learned counsel also pointed out that even
according to the evidence on record, some of the bills were still
under process and were not due for payment on the date of the
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alleged trap. In these circumstances, it was contended that there
was no occasion whatsoever for the appellant to demand any bribe
from PW3 for clearing those bills.
10.4. It was also submitted that the testimony of PW3 itself is
unreliable and inconsistent. It was pointed out that PW3 claimed
that he required the payment urgently for the marriage of his
daughter and relied upon a wedding card in support of this
assertion. However, the said wedding card did not contain PW3’s
name as the father of the bride and in fact related to another
person, namely, Sita Ram Dixit, whereas PW3’s father’s name is
Ram Singh. According to the learned counsel, this discrepancy
clearly demonstrates that the story put forward by PW3 regarding
the urgency of payment for a family marriage was false and
fabricated. It was further submitted that PW3 himself admitted that
on earlier occasions his bills had been cleared by the appellant
without any demand of bribe. This admission, according to the
learned counsel, clearly indicates that there was no prior instance
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of the appellant demanding illegal gratification from PW3 and the
allegation made in the present case was therefore inherently
improbable.
10.5. The learned counsel also drew the attention of the
Court to the circumstances prevailing on the date of the alleged
incident and submitted that 29.11.1996 was a salary disbursement
day in the office of the accused. According to the learned counsel,
on such days the accounts staff remain engaged in disbursing
salary to the employees and no other payments are processed. This
circumstance, it was argued, further makes the prosecution story
doubtful, since the appellant would have had no occasion to
demand a bribe for clearing PW3’s bills when those bills were not
even due for payment and the office was engaged in salary
disbursement work.
10.6. Lastly, the learned counsel for the appellant assailed the
investigation conducted in the present case and submitted that the
same was wholly defective and perfunctory. It was pointed out that
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PW10, the Investigating Officer, admitted during cross-
examination that he did not examine any witness to verify whether
PW3’s bills had actually been passed by the competent authority.
The Investigating Officer admitted that he merely recorded the
statements of certain witnesses as per their narration without
conducting any independent verification regarding the
departmental procedure for clearance of bills. It was also submitted
that the Investigating Officer did not conduct any inquiry
regarding the wedding card relied upon by PW3 and did not verify
whether the alleged circumstances stated in the complaint were
correct. According to the learned counsel, such lapses in the
investigation clearly demonstrate that the prosecution failed to
conduct a fair and proper investigation in the matter. In view of
these cumulative circumstances, the learned counsel for the
appellant submitted that the prosecution failed to establish beyond
reasonable doubt the essential ingredients of demand and
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acceptance of illegal gratification and therefore the appellant was
entitled to the benefit of doubt and consequent acquittal.
11. Per contra, the learned Special Public Prosecutor
supported the impugned judgment and submitted that the trial
Court had correctly appreciated the evidence on record and had
rightly convicted the appellant. The attention of this Court was
drawn to the legal position under Section 7 of the PC Act as it
stood in the year 1996 prior to the amendment of 2018. It was
submitted that Explanation (d) to Section 7 clearly provides that
even where a public servant receives gratification as a motive or
reward for doing something which he does not intend to do or
which he is not in a position to do, the offence would nevertheless
fall within the ambit of the said provision. It was contended that,
even assuming that PW3’s bills had not matured for payment and
therefore there was no occasion for the appellant to demand a
bribe, that circumstance would not exonerate the appellant, since
acceptance of gratification as a motive or reward would still
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squarely attract Section 7 of the Act. It was submitted that if the
bills were indeed not payable, the appellant could have simply
informed PW3 that payment could not be made at that stage, and
the fact that he instead demanded money clearly attracts the
ingredients of the offence.
11.1. It was next submitted regarding the alleged delay in
forwarding the FIR to the Court that the contention is
misconceived and it was pointed out that the incident occurred on
29.11.1996, which was a Friday, and the intervening days included
Saturday and Sunday. The FIR was received in the Court on
Monday, i.e., 02.12.1996. It was further submitted that
immediately after the apprehension of the accused he was
produced before the trial court within the legally stipulated time
and the relevant documents including the copy of the FIR were
placed before the Court. Therefore, the delay sought to be
highlighted by the defence does not suggest any manipulation or
infirmity in the prosecution case.
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11.2. It was submitted that according to the prosecution case,
no tape recording instrument was used for recording the
conversation between PW3 and the accused. PW5 who had
partially resiled from the prosecution version made a reference to
such a device; however, it was argued that if the defence sought to
rely upon such a circumstance, it was incumbent upon them to
establish the existence and contents of such a recording. It was
further submitted that the defence did not even put any specific
suggestion to the prosecution witnesses suggesting that the
conversation between PW3 and the accused was different from
what has been deposed by the witnesses. In these circumstances,
the appellant cannot derive any benefit from the alleged reference
to a tape recording device.
11.3. Further, it was contended that the argument advanced
by the defence regarding the presence of other currency notes
belonging to the accused, particularly the salary notes recovered
from him, is devoid of merit. It was pointed out that the tainted
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currency notes of ₹500 consisting of five currency notes of the
denomination each of ₹100 each were treated with phenolphthalein
powder and their numbers had been noted in the handing over
memo prepared prior to the trap. These tainted notes were
recovered from the possession of the accused. The presence of
additional notes of ₹10/- and ₹5/- denomination, which may have
represented the personal money of the accused including salary
received on that day, does not in any manner dilute the prosecution
case. It was submitted that the dipping of these additional notes in
the sodium carbonate solution was only to ascertain whether they
had come into contact with the tainted GC notes when they were
kept together in the same pocket, and the fact that the solution
turned pink confirmed that the tainted notes had indeed come into
contact with the other currency notes recovered from the pocket of
the accused.
11.4. The learned Prosecutor further submitted that the
argument that PW3’s bills had not matured for payment is equally
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without merit. It was pointed out that the trial court had considered
this aspect in detail and reference was made to paragraph 57 of the
impugned judgment. It was submitted that even in the cross-
examination of the prosecution witnesses, the defence itself had
suggested that when PW3 met the accused for the second time, the
accused had informed him that at least one bill of about ₹9,000 had
been sanctioned. According to the learned Special Public
Prosecutor, this suggestion itself indicates that some amount had
already been sanctioned and the defence cannot now be permitted
to contend that no bill whatsoever had matured for payment. In any
event, even if the bills had not matured, the acceptance of
gratification would still fall within the ambit of Section 7 of the PC
Act.
11.5. It was next contended that whether PW3 referred to the
marriage of his daughter or his sister is wholly irrelevant to the
determination of the guilt of the accused, as PW3 might have
relied upon the urgency of a marriage in the family merely as a
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reason to press for early payment of his bills. It was further
submitted that any discrepancy regarding the colour of the pant
worn by the accused is only a matter relating to the fallibility of
human memory, particularly when the pant itself was shown to the
witnesses during trial and duly identified by them. As regards the
absence of pink colour on the pant pocket, it was submitted that
when an object containing phenolphthalein powder is dipped into a
sodium carbonate solution, it is the solution which changes colour
and turns pink and not necessarily the object itself. Therefore, the
said argument has no force in law.
11.6. Lastly, the learned Prosecutor submitted that the
prosecution case is fully supported by the testimony of PW3 and
PW 11, the trap laying officer, and is corroborated by the recovery
of the tainted currency notes as well as the positive
phenolphthalein test. Reliance was placed upon the decision of the
Supreme Court in State of U.P. v. G.K. Ghosh, (1984) 1 SCC
254, to submit that a citizen ordinarily does not approach the
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vigilance authorities lightly to arrange a trap against a public
servant, as doing so involves considerable inconvenience, effort
and risk. It was further submitted that the trap laying officer cannot
automatically be treated as an unreliable witness merely because
he forms part of the raiding party, since it cannot ordinarily be
presumed that a police officer would fabricate evidence to falsely
implicate an innocent public servant. According to the learned
Special Public Prosecutor, where the testimony of PW3 and the
trap laying officer is supported by circumstantial evidence such as
recovery of tainted currency notes and positive chemical test
results, the Court can safely rely upon such evidence even if
certain witnesses do not fully support the prosecution case. On the
strength of the aforesaid submissions, it was contended that the
prosecution had successfully established the demand and
acceptance of illegal gratification by the appellant beyond
reasonable doubt and that the trial court had rightly appreciated the
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evidence on record while convicting the appellant, and therefore
the present appeal deserves to be dismissed.
12. Heard both sides and perused records.
13. The only point that arises for consideration in the
present appeal is whether there is any infirmity in the impugned
judgement calling for an interference by this court.
14. I shall first briefly refer to the evidence on record relied
on by the prosecution in support of the case. The demand in this
case is alleged to have taken place on 29.11.1996 and the trap laid
on the very same day. PW3 submitted a written complaint, that is,
Exhibit PW3/A on 29.11.1996 in the office of the CBI in which he
has stated thus: – He has two taxis bearing registration of the DL-1
series which have been operating on a panel basis with ITDC
(India Tourism Development Corporation) for about two years.
His taxi bills for the past few months amounting to approximately
₹32,000/- were pending for payment with ITDC. Although the said
bills had already been passed, the accused/appellant, who was
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working as Accounts Officer, ITDC and was posted in the
basement office of Hotel Samrat, demanded ₹500/- from him as
illegal gratification for releasing the payment of the said bills. On
the morning of 29.11.1996, when PW3 met the accused and
requested for the payment of his pending bills, the accused
demanded ₹500/- and directed him to meet him again in the
afternoon with the said amount, assuring that only thereafter the
payment of the bills would be processed. According to PW3, he
did not wish to pay the bribe demanded by the accused and
therefore approached the CBI seeking appropriate legal action
against the latter.
14.1. PW3, when examined before the trial court deposed
that in November 1993, he was operating a travel agency and had
two taxis on the panel of the ITDC. For several months, his bills
regarding the two taxis, totalling approximately Rs. 41,000/-,
remained pending for payment. Although these bills had already
been sanctioned and sent for payment by the General Manager of
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ITDC, the accused, who was the Manager of Accounts, withheld
the payment. According to PW3, on the morning of 29.11.1996,
PW3 met the accused at his office and requested the release of his
pending payments, explaining that he required the funds for his
daughter’s marriage. In response, the accused demanded a bribe of
₹500/- to process the payment and instructed PW3 to pay the
amount that same day. Thereafter, PW3 proceeded to the CBI
office, where he met with the SP (CBI/ACB) and narrated the facts
of the matter. PW3 then lodged Exhibit PW3/A written complaint.
Subsequently, the SP summoned PW11 Inspector and handed over
the complaint to him. PW11 then took PW3 to his room and
requisitioned two independent witnesses, namely, PW1 and PW5.
14.2. PW3 deposed in detail regarding the pre-trap
proceedings. PW3 further deposed that the team departed from the
CBI office in official vehicles at approximately 3:30 PM, arriving
near the Samrat Hotel Garage. Shortly thereafter, where vehicles
were parked at a discreet distance. Acting on the directions of
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PW11, the TLO, he along with PW1, the shadow witness, entered
the Samrat Hotel Garage building to reach the office of the
accused. Other members of the raiding party took up their
designated positions outside the garage. Upon arrival at the office,
he saw the accused disbursing salaries to the staff. The accused
informed him that he was busy and instructed him to return once
the salary distribution was completed. He along with PW1 then
exited the office and informed the CBI officials of the delay. PW3
further deposed that at around 5:00 PM, he and PW1 returned to
the office of the accused. Inside the office, the accused inquired if
he had brought the money (“Paise laaye ho”), to which PW3
confirmed in the affirmative (“Laye ha sir”). PW3 then produced
the tainted ₹500/- from his pocket and extended it to the accused.
The accused accepted the currency with his left hand, transferred it
to his right hand, and placed the money into the right-hand pocket
of his pant. The accused questioned PW3 regarding PW1’s
identity, to which PW3 introduced PW1 as his son. PW1 gave the
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pre-arranged signal to the CBI team, who then entered the office.
PW11 and another Inspector (Shri Negi) apprehended the accused
by his arms. PW11 disclosed his identity. Subsequently, PW7, a
security officer, was summoned to the scene, and a manager from
the office of the accused also arrived. Following the apprehension
of the accused, PW11 conducted a search of the accused’s pant
pocket, resulting in the recovery of ₹540/-, comprising five ₹100/-
notes, four ₹10/- notes, and two ₹5/- notes. PW3 further deposed
regarding the formalities that were complied with by the CBI team
thereafter, including the fact that the carbonate solution turned
pink when the appellant/accused was made to dip his left hand
fingers in the same. The inner lining of the right trouser pocket
worn by the appellant/accused also turned pink on being dipped in
the solution.
14.3. PW3, in his cross-examination, admitted that the
accused had cleared previous taxi service bills without demanding
any bribe; however, he clarified that those prior bills were
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generally for smaller amounts, between ₹8,000/- and ₹10,000/- per
month. There was no fixed timeline for bill clearance, with some
settled within three months and others taking four to six months.
PW3 further deposed that the accused had demanded a bribe
specifically for the clearance of one bill for ₹9,144/- and several
other bills totalling approximately ₹32,000/-, though he could not
confirm the exact total without reviewing the documents. Upon
being shown Exhibit P44, a bill for July 1996 for ₹9,611.60, PW3
explained the discrepancy in his complaint by stating that the
figure of ₹9,141/- cited therein was the final amount for which
ITDC had actually passed the bill. PW3 denied the suggestion that
the bills had not been approved by the relevant authority at the
time the complaint was filed.
14.4. PW3 further deposed that he proceeded to the office of
the CBI on his own initiative on the morning of November 29
without prior consultation. Although he had previously visited the
CBI office for taxi assignments, he was not personally acquainted
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with the SP and was directed to the SP’s office by the reception
desk. He denied that the complaint was written under dictation of
the SP. According to PW3, prior to approaching the CBI on
29.11.1996, he reported to one Sunderam and the General Manager
that the accused was withholding payment of the approved bills in
expectation of a bribe; they informed him that their duty concluded
with the clearance of the bills and that they could provide no
further assistance. Regarding his previous professional interactions
with the CBI, PW3 deposed that his taxis were used solely for
transporting officers between residences and offices and that he
could not recall if senior CBI officers had ever used his services
and specifically denied that PW10, PW11, or the DSP had ever
travelled in his taxis.
14.5. Between 03:30 PM and 05:30 PM, he, PW1, and CBI
officials remained in or around the canteen while the accused was
busy. PW3 further deposed that no audio recording device was
provided by the CBI to record the conversation. After
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apprehending the accused, PW7 was called to witness the recovery
of the tainted money from the accused. PW3 denied the
suggestions that the money was forced into the accused’s pocket
without a demand, or that the hand washes initially failed
necessitating the use of hot water from the canteen to produce a
pink reaction. He identified a black pair of trousers (Ex. P68) as
the one worn by the accused at the time of the incident, despite
having previously described them as chocolate-coloured, and noted
that the inner lining of the pocket was white. The accused was
required to remove the trousers inside his cabin for the pocket
wash, though PW3 could not recall where a replacement pair was
sourced from. The entire operation at the Samrat Hotel Garage
concluded at approximately 6:30 PM.
14.6. PW3 deposed that from the spot he went to his
residence and the accused was taken to the CBI Office and that he
did not accompany the CBI team from the spot to the house of the
accused. The payments of his bills were received by him two or
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three months after the raid. PW3 deposed that he did not know
whether his bill of ₹9,142/- had been approved for payment on
28.11.1996 and whether on the same day the papers were put up
before the accused and that the accused cleared the file for
payment. PW3 denied the suggestion that he was not present in
Delhi on 28.11.1996 or that he did not visit the office of the
accused on that day. He also denied the suggestion that PW11 and
DSP Ramnish were previously known to him and that he lodged
the report at their instance.
14.7. PW3 admitted that M.S. Upadhya is his maternal uncle.
His uncle was not present during the raid proceedings. PW3 denied
the suggestion that on the date of the raid he had rung up M.S.
Upadhya from the room of Y.S. Verma, Senior Manager
(Technical), Ashok Tours & Travels. He also denied the
suggestion that during the trap proceedings M.S. Upadhya had
come to the spot and talked to Kamudi, SP, and the General
Manager of Ashok Tours & Travels. PW3 further denied the
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suggestion that from the spot of the raid, the members of the
raiding party including himself and the accused had gone to the
house of the accused in his taxi bearing registration No. DL-1Y-
307. He also denied the suggestion that a search-cum-observation
memo was prepared at the house of the accused and that he had
signed the same as a witness.
15. PW1, the shadow witness, deposed that on 29.11.1996,
he, along with PW5, visited the CBI office at around 1:30 PM on
the instructions of the Executive Engineer. There, they met PW11,
who introduced them to PW3. PW3’s complaint was shown to
them, and they questioned PW3 to satisfy themselves about the
allegations contained therein. He was directed to accompany PW3
as a shadow witness to hear the conversation and watch the
proceedings. He was further directed to give a signal to the CBI
team by placing both his hands on his hair in the event of
acceptance of bribe by the accused. The TLO directed PW3 to
introduce him as the younger son of the latter. PW3 was given a
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audio cassette recorder to record the conversation. According to
PW1, the trap party left the CBI office at about 3:30 PM and
reached Samrat Hotel at around 3:50 PM. On the directions of
PW11, he along with PW3 went into the building of Samrat Hotel
to meet the accused while the other members of the raiding party
remained outside. They entered the office of the accused at around
4:00 PM. The accused told them to meet him after 5:00 PM. They
again went to the office of the accused at around 5:10 PM and the
following conversation took place outside the room of the accused:
PW3: Mere bills ka kya hua,
Accused: Ha paise laye ho,
PW3: Saab laya hun.
15.1. After entering the room, the accused again asked if
PW3 had brought the money (“paise laaye ho”) and PW3 replied
that he had brought five hundred rupees (“Han Saab, Paach So
rupaye”). The accused then asked to hand it over (“lao de do”).
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Thereafter, PW3 passed on the tainted ₹500/- to the accused,
asking him to count it (“gin lo”). The accused counted the tainted
money with both his hands and kept the same in the right pocket of
his trousers. Thereafter, he came out of the office and gave the pre-
arranged signal to the CBI team by placing both his hands on his
head. The CBI team rushed into the office of the accused and
apprehended him by his wrists. PW11 disclosed his identity and
told the accused that he was arrested on the charge of having
accepted bribe from PW3. PW11 directed PW5 to search the
accused. On search, PW5 recovered the tainted currency notes to
the tune of ₹500/- from the right pocket of the pant of the accused.
Besides that, four currency notes of ₹10/- denomination each and
two currency notes of ₹5/- denomination each were also recovered
from the accused. PW5 and Inspector Ramnish of the CBI team
thereafter compared the numbers of the aforesaid five currency
notes with the numbers already noted in the handing over memo,
and confirmed that the recovered currency notes were the same.
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The accused was made to dip the fingers of his right hand in a
glass of water, upon which the water turned pink. The right hand
wash was transferred into a clean empty bottle, its mouth was
closed, wrapped with a piece of cloth, and sealed with the seal of
CBI.
15.2. At this juncture, the prosecutor is seen to have sought
permission to “cross-examine” PW1 on the ground that he had
resiled from the statement made to the CBI. The request was
allowed and on being further examined by the prosecutor, PW1
admitted that his statement under Section 161 Cr.P.C. had been
recorded by CBI. He further admitted that during the pre-raid
proceedings, the demonstration was given by Inspector Kishan
Singh Negi, and that during the demonstration, the currency notes
were treated with phenolphthalein powder and that sodium
carbonate powder was dissolved in water to prepare a colourless
solution. He also admitted that for the purpose of demonstration,
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PW5 was made to touch the treated notes and dip his fingers in the
sodium carbonate solution, which turned pink.
15.3. PW1 deposed that the entire conversation between
PW3 and the accused took place in the office of the accused and
that he could not recall the precise nature of the conversation
verbatim but had conveyed its gist in his examination-in-chief. He
denied the suggestion of the prosecutor that no tape recorder had
been given to PW3 for recording the conversation. He admitted
that the hand washes and trouser pocket wash of the accused were
taken in sodium carbonate solution and not in plain water. He also
admitted that a wash of the currency notes of ₹10/- and ₹5/-
denomination recovered from the right pocket of the trousers of the
accused was also taken in sodium carbonate solution, which
similarly turned pink, and was transferred into a clean bottle,
sealed with the seal of CBI, and properly labelled. The bottle of the
said wash is Ex. P69 and its corresponding cloth wrapper is Ex.
P70, both bearing PW1’s signatures. PW1 denied the suggestion
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that he had been won over by the accused and had therefore given
a distorted version.
15.4. PW1 in his cross examination also fully supported the
prosecution case. PW1 admitted that his testimony given in
examination-in-chief regarding a tape recorder being given to PW3
was incorrect, attributing the lapse to nervousness as it was his first
appearance in a court of law. He clarified that during the pre-raid
proceedings, some discussions regarding the use of a tape recorder
had taken place but no tape recorder was actually given to PW3.
15.5. PW1 further deposed that after the recovery of the
tainted money, a senior officer of the accused was called to the
spot. When the accused was apprehended, a number of people had
gathered outside the office but the CBI officials did not permit
them to enter. PW1 denied the suggestion that when hand washes
of the accused were taken for the first time in the sodium carbonate
solution, the colour of the solution remained unchanged. He
deposed that he could not recollect whether a waiter was
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subsequently asked to bring hot water and whether the hand
washes were retaken in a sodium carbonate solution prepared in
hot water.
15.6. To a court question as to whether during the post-raid
proceedings conducted at the spot, PW11 and PW3 went anywhere
with the accused, PW1 answered in the negative. PW1 further
deposed that after apprehending the accused, the entire post-raid
proceedings were conducted and he was thereafter made to sit in
the adjoining room. PW1 denied the suggestion that when the
parties met the accused for the second time, the accused informed
PW3 that only his bill for ₹9,000/- had been sanctioned. He also
denied the suggestion that upon hearing this, PW3 stated that he
was in need of money and voluntarily offered the tainted money to
the accused for clearance of his entire payment. He further denied
the suggestion that on this, the accused declined to accept the bribe
and advised PW3 to take payment of ₹9,000/- and leave. He
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denied the suggestion that PW3 thereafter forcibly put the tainted
money into the pant pocket of the trousers of the accused.
16. PW5, Senior Assistant, NDMC, Health Establishment,
Unit-III, New Delhi, deposed that on 29.11.1996, CBI officials
came to the Vigilance Department of NDMC to requisition two
witnesses. He was thereafter directed by the Vigilance Department
to accompany the CBI officials. PW5 further deposed that while
going for the raid, one audio recorder-cum-receiver was also used.
A microphone was attached under the collar of the shirt of PW3,
and the main machine, which was either a recorder or audio
system, was kept in the official vehicle. An ear plug attached to the
main instrument was with one Inspector of CBI whose name he
could not recall.
16.1. At this juncture, the prosecutor is seen to have sought
permission to “cross-examine” PW5 on the ground that he had
resiled from the statement made to the CBI. The request was
allowed by the trial court and on being further examined by the
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prosecutor, PW5 denied the suggestion that no electronic machine
or transmitter had been used for the trap. He stated that he had
heard voices through the transmitter via the said machine, though
he could not remember whether he had mentioned the use of the
electronic machine-cum-transmitter during the trap in his
statement to the CBI. He denied the suggestion that no transmitter
was attached under the collar of PW3 and that no electronic
machine with an ear plug was kept in any official vehicle.
16.2. PW5 admitted that PW1 had been asked to give the
signal by scratching his head. He further admitted that about five
minutes after going into the building of Samrat Hotel, PW3 and
PW1 came back and communicated that the transaction had not
taken place, as the accused was not alone in his office. He was told
about this by the Inspector who was hearing through the ear plug.
PW5 admitted that at about 04:00 PM, PW3 and PW1 came out of
the office of the accused and informed them that the accused was
busy distributing salary and had asked them to come back at 05:00
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PM. At around 05:00 PM, PW3 and PW1 were again sent to
contact the accused in his office. At around 05:30 PM, the
members of the trap party rushed into the office of the accused.
PW5 stated he did not see PW1 giving any signal. He followed the
CBI team into the room of the accused. PW5 admitted that on
being confronted, the accused got perplexed. He was told by a CBI
Inspector that the accused, after accepting the bribe, had kept it in
his pocket. He could not admit or deny whether PW1 told the CBI
team that the accused, after demanding the bribe, accepted it in his
left hand, thereafter transferred the money to his right hand, and
kept it in the right side pocket of his trousers after counting.
17. PW7 deposed that on 29.11.1996, he was posted as
Manager (Vigilance-cum-Security) at Samrat Hotel as well as
Ashoka Tours & Travels, ITDC, Azad Market. He identified the
accused in court and stated that the accused was, at the relevant
time, posted as Assistant Manager (Accounts). PW7 further
deposed that 29.11.1996 was a pay day and that he was present on
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duty at the complex. At about 03:30 PM, Sub-Inspector Vivek
Dhir of CBI came to him. He accompanied Sub-Inspector Vivek
Dhir to the office of the accused. Upon reaching the office, he
noticed that two CBI officials were holding the accused by his
respective wrists. PW11 who was also present there informed him
that the accused had been caught while taking ₹500/- as bribe from
PW3.
17.1. PW7, in his cross-examination, admitted that on
29.11.1996, he noticed cashier Shri R.D. Verma sitting in his cabin
and disbursing salary, at which time the accused was sitting in his
office. He noticed the cashier disbursing salary from his cabin at
around 3:00 or 3:30 PM. He saw the accused in his cabin when the
accused had already been apprehended by the CBI officers. When
the accused was apprehended, no one from the Vigilance &
Security Department senior to him was available at Samrat Hotel.
PW7 could not recollect whether PW11 had prepared the sodium
carbonate solution in water at the spot, but stated that the said
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solution was prepared by one member of the trap party. PW7
further deposed that in his presence, CBI officials seized two bills
and some other documents from a file lying on the table of the
accused, though he could not identify those bills or documents.
17.2. PW7 admitted that a complaint had been received in the
Vigilance Department reporting that the date of birth of one
employee, M.S. Chawla, driver, had been wrongly changed from
1929 to 1939. PW7 did not admit or deny whether the said
complaint had been filed by A.I.T.U.C. Union, or whether he was
the Management Representative in that complaint, or whether M.S.
Upadhyaya was the defence assistant for the delinquent driver
M.S. Chawla. PW7 denied the suggestion that M.S. Upadhyaya,
who had represented the said driver in the enquiry, was present in
the office on 29.11.1996 or that the latter had any conversation
with the SP CBI, as well as the General Manager regarding
corruption in the office. He denied the suggestion that he had
recommended to the accused to make the payments of the bills of
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M/s. Dixit Travelling Agency and M/s. Ex-Servicemen & Security
Services.
17.3. PW11, the TLO, when examined fully supported the
prosecution case.
18. I will first deal with the arguments advanced by the
learned counsel for the appellant/accused. The first argument
relates to the delay in forwarding the FIR to the Court. The
incident occurred on 29.11.1996, which admittedly was a Friday.
The intervening days were Saturday and Sunday. From the
endorsement seen in the FIR, the same reached the Court on
02.12.1996 at 04:30 PM. However, it is not denied that the accused
was produced before the trial court within the prescribed time and
the relevant documents, including the FIR, had been placed before
the Court. In such circumstances, the delay stands sufficiently
explained and cannot be treated as indicative of any manipulation
in the prosecution case.
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19. With regard to the absence of the crime number in the
handing over memo, the materials on record indicate that the trap
proceedings were conducted on the very day the case was
registered and the handing over memo formed part of the pre-trap
formalities. The mere omission to mention the crime number in
that document cannot lead to the inference that the proceedings
were subsequently fabricated. Such omissions are procedural in
nature and cannot outweigh the substantive evidence relating to the
demand and acceptance of illegal gratification.
20. Emphasis was laid on the testimony of PW7, who
deposed that when he reached the office of the accused at about
03:30 PM, he saw that the accused had been apprehended by CBI
officials. The testimony of PW7 on this aspect reads thus:-
“…..I noticed the cashier disbursing salary from his cabin at
around 3:00 or 3:30 PM and Mohd. Yamin in his cabin when
he was already apprehended by CBI officers…..”
This only means that PW7 had seen the cashier disbursing
the salary at around 03:00 or 03:30 PM and that when he saw the
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accused, the latter had already been apprehended by the CBI. This
does not mean that the arrest or apprehension was at 03:00 or
03:30 PM. Even if that be so, the said aspect has not materially
affected the prosecution case. PW7 was not a member of the trap
party and was called to the spot only after the proceedings had
commenced. His statement regarding the time appears to be based
on approximation and cannot override the consistent version of
PW3, PW1 and PW11 regarding the events leading to the recovery
of the tainted currency notes. Minor variations in the recollection
of time are not uncommon in witness testimony and do not
undermine the core of the prosecution case.
21. The trap proceedings itself was also sought to be
questioned on the ground that the phenolphthalein powder used in
the demonstration was already available in the room of the
investigating officer. The evidence on record, however, clearly
establishes that the currency notes were treated with
phenolphthalein powder during the pre-trap proceedings and that a
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demonstration of the reaction with sodium carbonate solution was
carried out in the presence of the independent witnesses. The
tainted notes were thereafter handed over to PW3 with instructions
to deliver them to the accused only upon demand. The recovery of
those very notes from the pocket of the accused, coupled with the
positive phenolphthalein test, provides strong corroboration to the
prosecution version and dispels the suggestion of manipulation.
22. Another aspect concerns the absence of any audio
recording of the alleged conversation between PW3 and the
accused. The evidence of PW3 indicates that no tape recorder was
provided to him during the trap proceedings. PW1 has also
clarified in his cross-examination that although there had been
some discussion regarding the possible use of a recording device
during the pre-trap proceedings, no such device was actually
handed over to PW3. A reference was nevertheless made by PW5
to an electronic device described as a recorder-cum-transmitter
with a microphone attached to the collar of PW3. This statement,
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however, stands in clear contradiction to the evidence of PW3 and
PW1. The solitary and inconsistent reference made by PW5
regarding the use of an electronic device cannot discredit the
otherwise consistent evidence relating to the demand and
acceptance of illegal gratification. In any event, the validity of trap
proceedings does not depend upon the existence of an electronic
recording when the demand and acceptance are established
through direct testimony and corroborated by recovery of tainted
currency notes.
23. The question whether PW3’s bills had matured for
payment was also sought to be projected as a circumstance
rendering the prosecution case improbable. The defence evidence
was referred to substantiate the argument that the bills had not
matured for payment. Even assuming that the bills were not
immediately payable, that circumstance does not take the case
outside the scope of Section 7 of the PC Act as it stood at the
relevant time. Acceptance of gratification as a motive or reward
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for doing or forbearing to do an official act constitutes the offence
irrespective of whether the public servant was actually in a
position to grant the favour sought.
24. Similarly, regarding the alleged inconsistency relating
to the wedding card also, whether PW3 required money for the
marriage of his daughter, sister or any other family member is not
material to the determination of the guilt of the accused. Such
circumstances merely explain the reason why PW3 was anxious to
obtain early payment of his bills and cannot be treated as affecting
the credibility of the prosecution case.
25. The circumstance that the date of the incident happened
to be a salary disbursement day in the office of the accused is
equally inconsequential. The allegation is not that the payment of
the bills was actually made on that day but that illegal gratification
was demanded for processing the payment. The fact that salary
disbursement was taking place does not preclude the possibility of
such a demand.
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26. Certain lapses in the investigation were also pointed
out, particularly the failure of the PW10, the Investigating Officer,
to independently verify whether PW3’s bills had in fact been
passed by the competent authority. While the investigation may
not have been conducted with perfect thoroughness in every
respect, it is well settled that defects in investigation do not by
themselves render the prosecution case unacceptable if the
substantive evidence on record establishes the commission of the
offence. [See Hema v. State, (2013) 10 SCC 192 and C.
Muniappan v. State of T.N. (2010) 9 SCC 567: (2010) 3 SCC
(Cri) 1402]
27. Though PW 1 and 5 were treated as “partially hostile”,
they have admitted all the material aspects of the prosecution case,
to which I have already referred to in detail. Merely, because the
witnesses are partially hostile is no ground to reject their entire
testimony. It is settled that the testimony of hostile witnesses can
be looked into to the extent it supports the prosecution case,
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provided the same is credible. (Mohan Lal v. State of Punjab;
AIR 2013 SC 2408, Ramesh Harijan v. State of U.P.; AIR 2012
SC 1979, Prithi v. State of Haryana; (2010) 8 SCC 536, Lella
Srinivasa Rao v. State of A.P.; AIR 2004 SC 1720, Koli
Lakhmanbhai Chanabhai v. State of Gujarat; AIR 2000 SC
210).
28. The testimony of PW3, clearly establishes that the
accused demanded ₹500/- from him for processing the payment of
his taxi bills. The testimony of PW1, who acted as the shadow
witness and PW5, the recovery witness, corroborates this version.
Their testimony is further corroborated by the recovery of the
tainted currency notes from the possession of the accused. The
numbers of the recovered notes were found to tally with the
numbers recorded in the handing over memo prepared prior to the
trap. The chemical test conducted thereafter revealed that the hand
wash of the accused as well as the wash of the trouser pocket
turned pink, thereby confirming the presence of phenolphthalein
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powder. It is also relevant to note that the accused had not offered
any plausible explanation for the presence of the tainted currency
notes in the pocket of his trousers. The defence suggestion that the
money was forcibly inserted into his pocket by PW3 has not been
substantiated by any material evidence. It also emerges from the
materials on record that when the appellant/accused was
apprehended with the tainted currency notes, he did not raise any
protest or demur before PW11 that the said notes had not been
received by him. PW5 has deposed that upon being confronted, the
accused appeared perplexed. However, on an overall perusal of the
testimonies of PW1, PW3, PW5, PW7 and PW11, it does not
emerge anywhere that the accused protested or asserted at the time
of apprehension that the money had not been accepted by him. The
absence of any such immediate denial assumes significance in the
circumstances of the case. It is well settled that when tainted
currency notes are recovered from the possession of the accused
and no plausible explanation is offered for their presence, such
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recovery constitutes a strong incriminating circumstance
supporting the prosecution case regarding demand and acceptance
of illegal gratification [See M. Narsinga Rao v. State of A.P.,
2001 SCC (Cri) 258].
29. I find no infirmity in the impugned judgment calling for
an interference into the same by this Court.
30. In the result, the appeal, sans merit, is dismissed.
31. Applications, if any, pending, shall stand closed.
CHANDRASEKHARAN SUDHA
(JUDGE)
MARCH 16, 2026
kd
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