Order 11

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IN THE COURT OF DEEPALI SHARMA
SPECIAL JUDGE: PC ACT: ACB-01:
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR No. DLCT11-000560-2023
CC No. 47/2023
State vs. Kamna Deep Kaur
FIR No. 01/2019
PS: Anti Corruption Branch
03.05.2024
ORDER ON CHARGE
1. In brief, the facts of case are that a complaint dated
16.11.2018 was received at ACB on 26.11.2018 from Health and
Family Welfare Department, GNCTD, alongwith the enclosures
i.e. the complaint dated 25.10.2018 and CD containing audio
recording. The same was registered vide MC No. 149/2018. In
the initial complaint dated 25.10.2018 the complainant Ashok
Chandra, Managing Director, MGI (India) Pvt. Ltd., stated that
MGI (India) Pvt. Ltd. was awarded a contract dated 30.03.2007
for Modular Operation Theater with 33 bedded ICU at G.B.Pant
Hospital, New Delhi. The work was completed and handed over
to the hospital on 06.03.2010, however, the hospital did not make
full payments as per the contract and the matter was taken up with
hospital authorities/administration several times but the
grievances of the complainant remained unresolved. The matter
was referred for arbitration and vide the Arbitral Award dated
10.11.2017 the claimant was held entitled to an amount of Rs.
61,46,726/- alongwith 12% interest from the date of filing of the
claim till the date of actual payment. Additional Rs. 6,00,000/-
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was awarded as cost of litigation. The hospital authorities were
directed to pay the total amount within two months from the
receipt of the award. No appeal was filed against the said order.
2. The complainant further mentioned that he pursued
the matter for release of his payments, however, despite
involvement of senior officials of Delhi Govt., the payments were
not released to the complainant. Meanwhile a call was received
by Sh. Rajiv Chauhan, advocate, (mobile no. 9891467200) of the
complainant from accused Kamna Deep Kaur (mobile no.
9718594002) of G.B.Pant hospital on 08.10.2018 and she
demanded illegal gratification for release of payment. Another
call was made to the accused Kamna Deep Kaur on the advise of
the advocate by the Accountant Mr. Shobhit Mathur (mobile no.
9540996717) on 09.10.2018, when she again demanded money
for releasing the payment. The excerpts of the conversations
were attached with the complaint.
3. On the basis of the aforesaid complaint, FIR was
registered u/s 7 of PC Act. Further investigation was carried out
by Insp. Praveen Saroha, who collected the audio CD of the
recording, transcription of the recording and certificate u/s 65B of
Indian Evidence Act and prepared a fresh transcription of the
recording. Subsequently, the complainant provided a spare copy
of the recording, which was kept open for investigation. The
audio CD was sent to FSL for evaluation and analysis and the
FSL report dated 04.12.2019 indicated that there was no form of
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alteration in the audio recording. The voice sample of accused
Kamna Deep Kaur and witnesses Sh. Rajiv Chauhan, advocate,
and Sh. Shobit Mathur, Accountant, were taken. As per the FSL
result dated 31.08.2021 the voices in the CD matched with the
voice of the accused Ms. Kamna Deep Kaur, Sh. Rajiv Chauhan
and Sh. Shobit Mathur. IO recorded the statements of witnesses
and collected the CDRs of accused Ms. Kamna Deep Kaur
(mobile no. 9718594022), Sh. Rajiv Chauhan (mobile no.
9891467200) and Sh. Shobit Mathur (mobile no. 9540996715).
As per the CDR of accused Ms. Kamna Deep Kaur (mobile no.
9718594022), she had communicated with Sh. Rajiv Chauhan
(mobile no. 9891467200) on his mobile as well as with Sh. Shobit
Mathur (mobile no. 9540996715). Both Rajiv Chauhan and
Shobit Mathur did not produce their mobile phones during the
investigation. IO has also placed on record the transcript of
conversation between the accused, Sh. Shobit Mathur and Rajiv
Chauhan. IO collected the service record of the accused .
Sanction was obtained u/s 19 of PC Act against the accused for
her prosecution u/s 7 of PC Act. After completion of
investigation, charge sheet was filed against the accused Kamna
Deep Kaur u/s 7 of PC Act. Subsequently a fresh sanction dated
16.08.2023 of the Medical Director GIPMER, New Delhi, was
obtained and the same was placed on record alongwith the
supplementary charge sheet. Cognizance for offence u/s 7 of
Prevention of Corruption Act was taken.
4. It is contended by ld. counsel for the accused that the
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original device i.e. the mobile phones containing the voice
recordings have not been collected during investigation. It is
stated that in absence of the original devices, the electronic
evidence cannot be relied upon . It is also urged that there are two
sanction orders on record and none of the sanction orders states
that the voice recording was heard by the sanctioning authority
and hence, the sanction orders are unsustainable.
5. On the other hand, it is contended by Ld. Chief P.P.
for the State that in view of contents of the complaint as well as
statements of witnesses and the FSL report on the voice
recordings, there is sufficient material on record to frame charge
against the accused u/s 7 of PC Act.
6. I have heard ld. Counsel for the parties and perused
the record.
7. In
Settu Vs. State of NCT of Delhi, CRL. REV.P.
13/2022 dated 10.03.2022, the Hon’ble High Court has observed
as under :
“8. 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 prima facie 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
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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 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 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.”
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8. 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 that stage.”
9. Thus, at the stage of charge, the court is neither
required to see the probative value of the evidence nor the
sufficiency of material is to be gone into. Whether the trial would
eventually result into conviction of the accused or not is also not
material.
10. As far as, question of demand and acceptance is
concerned, as per case of the prosecution the complainant in his
complaint has made specific assertion that despite the arbital
award dated 10.11.2017 in favour of the complainant, the amount
of Rs. 61,46,726/- alongwith interest and cost of litigation was
not released to the complainant company by the hospital
authorities. PW Rajiv Chauhan, advocate, and Shobit Mathur –
Accountant have supported the allegations against the accused
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Kamna Deep Kaur. The evidentiary value of the CD shall be
tested at the trial. The sanction orders specifically discuss the
FSL result and that the sanctioning authority had gone to all the
statements recorded u/s 161 Cr.P.C., FSL report and documents
collected by the IO during investigation. Hence, at this stage it
cannot be stated that mere non-mention of the fact that the CD
had been viewed by the sanctioning authority would vitiate the
sanction u/s 19 of PC Act.
11. After considering the rival submissions as well as
going through charge-sheet and other material placed on record, I
am of the considered opinion that prima facie a case for the
offence under section 7 of Prevention of Corruption Act is
made out against the accused Kamna Deep Kaur. Accordingly,
charge be framed against her.
Announced in the open court ( Deepali Sharma )
on 03rd May, 2024 Special Judge, PC Act (ACB-01)
RADC, New Delhi.
03.05.2024
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