Order 22

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IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
SPECIAL JUDGE: (PC ACT): (ACB01):
RADC: NEW DELHI.
CC No. 29/2021
FIR No. 14/2010
PS: ACB
State vs. Sandeep Singh & Ors.
ORDER ON CHARGE
1. Brief facts of the case are that on 27.03.2010, complainant Neeraj
Gupta gave a complaint at the ACB office stating that he had availed a
housing loan of Rs.13,90,000/ from Indiabulls (I.H.F.L.) in the year 2007,
but after deduction of service and other charges, he received only
Rs.13,48,000/. It is stated that he had taken the loan by mortgaging the
property documents of property No. 157/C, Arvind Nagar, Ghonda, Delhi53
and also made his wife as coapplicant. When the company had given him
the loan, the rate of interest was fixed at 14.75%, but it was extended by 1%
in the next month, and thereafter, after two years, the rate of interest was
increased to 23%. The complainant approached the company through letters
but failed and after sometime his cheques also got bounced, even though, he
had deposited the installments in cash every month and his account had
never become N.P.A. The complainant and his family members were
threatened by gundas of the company and the company had taken legal
action against him and filed a case under Section 138 of NI Act against him
for cheque bounce.
2. On 13.03.2010 at about 09:00 am, one person, who introduced
himself as a Receiver of the Court, entered the house and directed them to
vacate the house within 24 hours and after some conversation, they asked
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them to meet his boss, while giving his telephone number. He told him that
he would pay the balance amount to the company as early as possible, but he
did not agree and his boss Avnish refused to grant time, due to this,
condition of his wife started worsening as she is a patient of BP. Thereupon,
he obtained Rs.10,000/ from him while putting him under the fear and
granted them time upto 29.03.2010. Thereafter, Avnish handed over him a
letter, while calling him in his office in which the date regarding possession
was mentioned as 29.03.2010. In between, he (complainant) paid the
remaining installments of the company and was under the impression that
now no action would be taken, but on 22.03.2010, Sandeep Singh, who is
Receiver of the Court alongwith one another person came at his house and
took photographs of the notice which they affixed at his house and
threatened him to vacate the house till 29.03.2010 or else they will take the
possession on 29.03.2010 and also showed him a copy of the letter issued by
the police. After about two hours, two other persons from the company came
at his house and they also affixed one notice on the wall of his house, in
which there was a reference regarding the sale of his house. When he
inquired from the company officials, they told him that Rs.35,300/ are still
due regarding dishonouring of cheques. Thereafter, he deposited the said
amount on 25.03.2010, but despite that ‘No dues letter’ was not issued to
him by the company. On the other hand, Sandeep Singh and Avnish were
continuously threatening him and on 26.03.2010, an amount of Rs.15,000/
was demanded by them while assuring that after receiving Rs.15,000/ they
will extend the date of possession to 05.04.2010.
3. On 27.03.2010, complainant approached the office of Anti
Corruption Branch, from where, he alongwith HC Rajender reached at Tis
Hazari Courts and at some distance from Chamber no. 463, Western Wing
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of Avnish, HC Rajender gave him audio and video recorder after making on
the same and thereupon he reached at the chamber of Avnish and requested
him that he cannot give the amount which he was demanding. On which,
Avnish told him that Rs.15000/ were till yesterday and today he has to give
Rs.25000/ as the risk has increased in this work and he has to make the
payment to the counsel of company as well as to the Receiver. He recorded
the entire conversation in the audiovideo recording device and handed over
the same to HC Rajender. Sandeep Singh, who is Receiver in this case, met
him 810 days before in the chamber of Avnish when Avnish called him and
at that time, Sandeep Singh told him to talk with Avnish in this regard and
whatever Avnish ji would say, work will be done accordingly. He has no
concern with Avnish as he is neither his advocate nor had any transaction
with him, but he alongwith Sandeep Singh and other persons is blackmailing
him and demanding Rs.25000/.
4. During the investigation, voice samples were sent to FSL for
forensic examination and it was found that the voice exhibits of speakers are
the voices of same persons. During the investigation, it was also revealed
that Sandeep Singh, who was appointed as Receiver by the Court of Sh. Dig
Vinay Singh, Ld. ACMM, was actively involved in obtaining illegal
gratification from complainant Neeraj Gupta through coaccused and fellow
advocate Avnish Kumar. Sandeep Singh even told the complainant in the
chamber of Avnish that he should talk to Avnish in this regard and whatever
Avnish decides, would be final. As accused Sandeep Singh, Advocate, was
working in the capacity of public servant being Court Receiver, Sanction to
prosecute u/s 19 of PC Act was granted by Ld. CMM (Central) against him
on 05.12.2020.
5. After completion of the investigation, chargesheet was filed on
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26.08.2021 and cognizance was taken against the accused persons for the
offences punishable under Section 7/8/12/13 of Prevention of Corruption
Act, 1988 r/w Section 120B IPC, vide order dated 29.09.2021.
6. I have heard Sh. Vikash Kumar, Ld. Addl. PP for the State and
Sh. Harsh Sharma, Ld. Defence counsel for accused Sandeep Singh and Sh.
R. K. Thakur and Sh. Kundan Kumar Mishra, Ld. Defence Counsels for
accused Avnish and have also gone through the material placed on record. I
have also heard arguments on application u/s 227/239 Cr.P.C. seeking
discharge as filed on behalf of accused Sandeep Singh.
7. Ld. Addl. PP for State argued that coaccused Sandeep Singh was
appointed as Court Receiver vide order dated 22.02.2010 by Ld. ACMM for
taking possession of mortgaged property on an application moved by India
Bulls u/s 14 (2) of SARFEASI Act and his fees was fixed Rs.10,000/, but
he alongwith coaccused Avnish pursuant to their criminal conspiracy
demanded and accepted Rs.10,000/ from the complainant after putting him
under the fear and thereupon, further demanded Rs.25,000/ for extending
the time to vacate the property and the said conversation was recorded by
the complainant in an audio video recording device. Ld. Addl. PP for State
further argued that there are statements of bank officials namely Sh.
Mrityunjay Kumar Singh and Sh. Lalit Kumar Tiwari, both Legal
Managers/Officers of India Bulls, who have stated that they have told
accused Sandeep Singh on 25.03.2010 that settlement talks are going on
with the complainant and therefore, proceedings for possession of
mortgaged property are not to be carried out, but both the accused persons
threatened the complainant that they will take the possession of the property
and demanded further payment of Rs. 25,000/ for extending the date of
possession. Ld. Addl. PP for State further argued that audio video recording
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device was issued from the office of ACB after making entry in the register
to the complainant for recording the conversation and HC Rajender, who
transferred the data from the audio video recording device on office
computer and prepared CD has given his certificate u/s 65B of the Indian
Evidence Act. Ld. Addl. PP for State further argued that even otherwise
there is ample evidence by way of statement of complainant and his wife
that both the accused had taken bribe of Rs.10,000/ and further demanded
Rs.25,000/ for extending the time for handing over the possession of
mortgaged property.
8. Ld. Defence counsel for accused Sandeep Singh argued that
without registration of FIR or even lodging a DD entry, the official of ACB
initiated the process of collecting evidence with the help of audiovideo
recorder by deputing HC Rajender on 26.03.2010 with the complainant in
violation of express provisions of law. It has been submitted that it is a
cardinal rule of interpretation that when the statute prescribed that particular
thing should be done, it should be done in the manner prescribed and not in
any other way. Ld. Defence counsel further argued that even HC Rajender
was not authorized to collect evidence or investigate as per Section 17 of the
PC Act. Ld. Defence counsel vehemently contended that alleged electronic
surveillance equipment which was used on 26/27.03.2010 was not seized by
the IO, which itself shows that primary evidence was deliberately withheld.
It has been submitted that the certificate u/s 65B of Indian Evidence Act is
of HC Rajender, which was obtained from him on 30.01.2015 i.e. after about
five years of the alleged recording and it is not stated in the certificate
whether the CD from the original device was prepared by HC Rajender who
had given the certificate u/s 65B of Indian Evidence Act or by the
complainant or any other person. Ld. Defence counsel further argued that
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complainant in his complaint dated 27.03.2010 has stated that on
13.03.2010, one person came at his house, who claimed himself as Receiver
of the Court, but in his supplementary statement, he has stated that the said
person came on 06.03.2010, which itself shows about the improvements
made by complainant during investigation. It has been submitted that even
the uncontroverted statement of complainant u/s 161 Cr.P.C. does not show
the existence of any incriminating circumstance relating to any demand of
bribe by accused Sandeep Singh and as such, there is no prima facie case
made out against him and thus, he is liable to be discharged. Ld. Defence
counsel for accused Sandeep Singh has drawn my attention in respect of
authorities reported as Nilesh Dinkar Paradkar vs. State of Maharashtra,
(2011) 4 SCC 143; Girwar Singh Vs. Central Bureau of Investigation,
(2016) 5 SCR (Crl.) 757; P. Sirajuddin etc. vs. State of Madras etc.
(1970) 1 SCC 595; Superintendent of Police CBI and Ors. vs. Tapan
Kumar Singh (2003) 6 SCC 175; State of Jharkhand and Ors. vs.
Ambay Cements and Anr. (2005) 1 SCC 368; Lalita Kumari vs.
Government of UP and Ors. (2014) 2 SCC 1; State by Karnataka
Lokayukta, Police Station, Bengaluru vs. M. R. Hiremath (2019) 7 SCC
515 and Charansingh vs. State of Maharashtra and Ors. (2021) 5 SCC
469.
9. Ld. Defence counsel for accused Avnish argued that coaccused
Sandeep Singh was appointed as Court Receiver on 22.02.2010 to take
possession of mortgaged property and to submit his report within three
months from the date of order. However, as per admitted case of
prosecution, complainant entered into a settlement with the India Bulls
company and made the payment of entire settled amount alongwith interest
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on 25.03.2010 and as such, the complainant had no foundation to proceed
against the accused persons on account of the impossibility of performance.
Ld. Defence counsel further argued that the fact that complainant went to the
office of ACB on 26.03.2010 after he made the entire payment to the
company regarding the mortgaged property itself shows that he had a motive
to falsely implicate the accused persons. Ld. Defence counsel further argued
that original audio video recording device was not seized by the IO and
certificate u/s 65B of the Indian Evidence Act was issued by HC Rajender
after a period of five years. Ld. Defence counsel further contended that as
per statement of Insp. M. K. Johri, as per procedure, the devices after the
recording used to be handed over to Addl. CP or DCP ACB and they used to
transfer the recordings into their computer for further necessary action and
as such, certificate u/s 65B of the Indian Evidence Act should have been
given by Addl. CP or DCP and not by HC Rajender. Ld. Defence counsel
for accused Avnish Kumar has drawn my attention in respect of authorities
reported as K. Shanthamma vs. State of Telangana (2022) 4 SCC 574; P.
Satyanarayana Murthy vs. State of A. P. (2015) 10 SCC 152; Krishan
Chander vs. State of Delhi (2016) 3 SCC 108; P. Subramani vs. State
(2017) SCC Online Mad 37672; Sharad Waman Buchake vs. State of
Maharashtra, (1992) SCC Online Bom 474; Jatinder Pal Singh vs.
Central Bureau of Investigation (2022) 287 DLT 334; CBI vs. V. C.
Shukla (1998) 3 SCC 410; Md. Salauddin vs. State of West Bengal,
(2002) SCC Online Cal 287; Arjun Panditrao Khotkar vs. Kailash
Kushanrao Gorantyal and Ors. (2020) 7 SCC 1; P. Vijayan vs. State of
Kerala (2010) 2 SCC 398; Rajendra Singh vs. State of UP and Anr.
(2007) 7 SCC 378 and Dipakbhai Jagdishchandra Patel vs. State of
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Gujarat and Anr (2019) 16 SCC 547.
10. In Settu vs. State of NCT of Delhi, CRL. REV.P. 13/2022
dated 10.03.2022, Hon’ble High Court has observed that :
“It is well settled law that at the stage of framing of
charge, the court has power to shift and weigh the
evidence for the limited purpose of finding out
whether or not a primafacie case against accused
has been made out. When the material placed
before the court discloses great suspicion against
the accused which has not been properly explained,
the court will be justified in framing charge. No
roving inquiry into the pros and cons of the matter
and evidence is not to be weighed as if a trial was
being conducted. If on the basis of materials on
record a court could come to the conclusion that
commission of the offence is a probable
consequence, a case of framing of charge exists.
9. To put it differently, if the courts were to think
that the accused might have committed the offence it
can frame a charge, though for conviction the
conclusion is required to be that accused has
committed the offence. At the stage of framing of a
charge, probative value of the materials on records
cannot be gone into, the material brought on record
by the prosecution has to be accepted as true at that
stage. The truth, veracity and effect of the evidence
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which the prosecutor proposes to adduce are not to
be meticulously judged, nor any weight is to be
attached to the probable defence of the accused. It
is not obligatory for the judge at that stage of the
trial to consider in any detail and weigh in a
sensitive balance whether the facts, if proved, would
be incompatible with the innocence of the accused
or not.
10. The standard of test and judgment which is to be
finally applied before recording a finding regarding
the guilt or otherwise of the accused is not exactly
to be applied at this stage of deciding the matter
under Section 227 or under Section 228 of the
Code. But at the initial stage, if there is a strong
suspicion which leads the court to think that there is
ground for presuming that the accused has
committed an offence, then it is not open to the
court to say that there is no sufficient ground for
proceeding against the accused. While deciding the
question of framing of charge in a criminal case,
the court is not to apply exactly the standard and
test which it finally applies for determining the guilt
or otherwise.
11. What is required to be seen is whether there is
strong suspicion which may lead to the court to
think that there is ground for presuming that the
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accused has committed an offence. The above
proposition is supported with law laid down by the
Hon'ble Apex Court and Hon'ble High Court
reported as “Union of India vs Prafulla Kumar”,
AIR 1979 Supreme Court 366, “State of
Maharashtra and others vs Som Nath Thapa and
other” JT 1996 (4) SC 615, “State of Bihar vs
Ramesh Singh”, AIR 1997 SC 2018: (1997 CRI LJ
1606), “Umar Amdula Sakoor Sorathia vs.
Intelligence Officer Narcotic Control Bureau” JT
1999 (5) SC 394, “Kalu Mal Gupta vs. State” 2000
I AD Delhi 107.”
11. It is a settled legal position that prosecution is required to
prove its case beyond reasonable doubt. However, at the stage of framing
of charge, the Court has only to see whether prima facie case is made out
against the accused. In this regard, it is held in Amit Kapoor Vs. Ramesh
Chander, 2012 (9) SCC, 460 as under:
“19. At the initial stage of framing of a charge,
the court is concerned not with proof but with a
strong suspicion that the accused has committed
an offence, which, if put to trial, could prove him
guilty. All that the court has to see is that the
material on record and the facts would be
compatible with the innocence of the accused or
not. The final test of guilt is not to be applied at
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that stage.”
12. Thus, at the stage of charge, neither the probative value of
evidence nor the sufficiency of material is to be seen by the Court.
13. Hon’ble Supreme Court in Lalita Kumari vs. Govt. of UP &
Ors. (supra) while issuing directions held as under:
“120.6 As to what type and in which cases
preliminary inquiry is to be conducted will depend
on the facts and circumstances of each case. The
category of cases in which preliminary inquiry
may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in
initiating criminal prosecution, for example, over 3
month’s delay in reporting the matter without
satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not
exhaustive of all conditions which may warrant
preliminary inquiry.”
14. Thus, Hon’ble Supreme Court also allowed preliminary
inquiry to be conducted in corruption cases prior to registration of FIR.
The complaint in the present case for demanding bribe was made against
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the court Receiver, who was appointed by the Court of law and therefore
it appears that the official of ACB deemed it fit to conduct preliminary
inquiry before registration of FIR. The statement of complainant as well
as of HC Rajender shows that HC Rajender only accompanied the
complainant to Tis Hazari Court and he handed over the audio video
recording device to the complainant at some distance from the chamber of
coaccused Avnish for recording the conversation regarding demand of
bribe. Thus, at the time of recording of conversation, HC Rajender was
not deputed to himself record the conversation between the complainant
and accused Avnish, but it was the complainant, who himself recorded
the conversation regarding demand of bribe made by accused Avnish
through audio video recorder which was issued to HC Rajender by ACB.
Therefore, it cannot be said that HC Rajender was conducting any inquiry
or investigation. The fact that HC Rajender was provided with the audio
video recording device on 26.03.2010 i.e. prior to registration of FIR is
mentioned at serial no.121 and 122 of the register for issue of surveillance
equipment available with Anti Corruption Branch of Directorate of
Vigilance, GNCT of Delhi and the copy of said register is part of the
chargesheet.
15. The audio video recording device i.e. one key chain and one I
pod Sony which was issued to HC Rajender and used by complainant for
recording the conversation between him and accused Avnish was
property of the Anti Corruption Branch and perhaps, one of the reason for
not seizing the same as argued by Ld. Addl. PP for State was that the
same device was to be used in another cases also. HC Rajender in his
statement u/s 161 Cr.PC recorded on 27.03.2010 has stated that
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complainant after recording the conversation with coaccused Avnish
handed over him the audio video recording device and when they came to
ACB, he prepared the CD with the help of computer and thereafter
prepared one another copy containing the conversation between
complainant and coaccused Avnish, Advocate which was also confirmed
by complainant after seeing and hearing the same. Thus, as per
prosecution case, HC Rajender prepared the CD from the original device
with the help of office computer and later on he has furnished the
certificate u/s 65B of Indian Evidence Act.
16. Hon’ble Supreme Court in Arjun Panditrao Khotkar vs.
Kailash Kushanrao Gorantyal (2020) 7 SCC 1 has held as under:
“52. We may hasten to add that Section 65B does
not speak of the stage at which such certificate must
be furnished to the Court. In Anvar P.V. (supra), this
Court did observe that such certificate must
accompany the electronic record when the same is
produced in evidence. We may only add that this is
so in cases where such certificate could be procured
by the person seeking to rely upon an electronic
record. However, in cases where either a defective
certificate is given, or in cases where such
certificate has been demanded and is not given by
the person concerned, the Judge conducting the trial
must summon the person/persons referred to in
Section 65B (4) of the Evidence Act, and require
that such certificate be given by such
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person/persons. This, the trial Judge ought to do
when the electronic record is produced in evidence
before him without the requisite certificate in the
circumstances aforementioned. This is, of course,
subject to discretion being exercised in civil cases in
accordance with law, and in accordance with the
requirements of justice on the facts of each case.
When it comes to criminal trials, it is important to
keep in mind the general principle that the accused
must be supplied all documents that the prosecution
seeks to rely upon before commencement of the
trial, under the relevant sections of the Cr.PC.”
17. Regarding the submission made by Ld. Defence counsel for
accused Avnish that after 25.03.2010 there was no cause of action for
complainant to make the complaint as he had settled the matter with the
bank, it is suffice to say that complainant has categorically stated that
despite making the payment ‘No dues letter’ was not issued to him and
both the accused Sandeep Singh and Avnish were continuously
threatening him. The transcript of audio video recording also shows that
accused Avnish was demanding Rs.25,000/ from complainant on
27.03.2010 while saying that for Rs.10,000/ which he had given, they
had given the time more than they promised. As per FSL result, the
sample voice of accused Avnish Kumar and complainant was found to be
similar with the voice of recorded speech. Complainant has also stated in
his complaint that coaccused Sandeep Singh, who is Receiver in the
present case, met him 8 10 days before the date of making the complaint
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at the chamber of coaccused Avnish and told him to talk with Avnish in
this regard and whatever Avnish would say, his work will be done
accordingly. This fact, prima facie, shows that both accused persons
hatched a conspiracy to demand bribe from the complainant for granting
some time for delivering the possession of mortgaged property after
putting him under the fear of dispossession. Sanction to prosecute u/s 19
of PC Act against accused Sandeep Singh has been granted by Ld. CMM
(Central) as accused Sandeep Singh was working in the capacity of public
servant being Court Receiver.
18. Section 12 that deals with punishment for abetement of
offences, reads as under:
“12. Punishment for abetment of offences –
Whoever abets any offence punishable under this Act,
whether or not that offence is committed in
consequence of that abetment, shall be punishable
with imprisonment for a term which shall not be less
than three years, but which may extend to seven years
and shall also be liable to fine.
14. The word abetment has not been defined in the
PC Act but by virtue of Section 28 of the PC Act, it is
permissible to look into the definition of abetment as
appearing under Section 107 of the IPC. Section 107
of IPC reads as under:
107. Abetment of a thing. A person abets the doing
of a thing, who First. Instigates any person to do
that thing; or Secondly. Engages with one or more
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other person or persons in any conspiracy for the
doing of that thing, if an act or illegal omission takes
place in pursuance of that conspiracy, and in order to
the doing of that thing; or Thirdly. Intentionally
aids, by any act or illegal omission, the doing of that
thing.”
19. Thus, the offence of abetment is also committed by ‘engaging
in a conspiracy for doing of a thing’ and only if act or illegal omission takes
place pursuant to such a conspiracy. In order to constitute an offence of
abetment by conspiracy, there must be a combination of two or more
persons in the conspiracy and an act or illegal omission must take place in
pursuance of that conspiracy and in order to doing of that thing.
20. After considering the statements of complainant, his wife and
other prosecution witnesses as well as material placed on record, I am of the
considered opinion that prima facie a case u/s 120B IPC is made out against
both the accused as well as a case u/s 7 & 13 (1) (d) of Prevention of
Corruption Act punishable u/s 13 (2) of PC Act r/w Section 120B IPC is
made out against accused Sandeep Singh and u/s 8/12 of Prevention of
Corruption Act r/w Section 120B IPC is made out against accused Avnish
Kumar. In result, application u/s 227/239 Cr.P.C. as filed on behalf of
accused Sandeep Singh seeking discharge is hereby dismissed and charge be
framed accordingly against both the accused persons.
Announced in the open court
on 31st August, 2022.
(Sanjeev Kumar Malhotra)
Special Judge, PC Act (ACB01)
RADC, New Delhi.
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