judge bribery case delhi

7/30/2019 Judge Bribery Case Delhi

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IN THE COURT OF V .K .MAHESHWARI

SPECIAL JUDGE: (P C Act)-03 CBI DELHI

Corruption Case No.49/2004

CBI Vs. Gulab Tulsyani, M M Patiala

House, New Delhi, r/o C-75

Double Storey , Ramesh Nagar, N

Delhi.

Date of Institution 16.11.2002

R.C No. 40(A)/86/CBI/ACB/N.D

Under Section U/s 161 IPC and U/s 5(2) r/w

5 (1) (d) of PC ACT 1947

Arguments concluded

on 17.4.2012

Date of order 25.4.2012

JUDGMENT:

FACTS OF THE CASE .

According to prosecution this case was regd. on the

basis of a written complaint dt.6.6.86 from Sh. Ajesh Mittal of M/s

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Mittal Paints & Chemicals, 24/14, Railway Road near Railway

Station, Samepur , Delhi alleging therein that Sh. Gulab Tulsiyani,

the then M.M. Patiala House, New Delhi had demanded illegal

gratification to the tune of Rs.2000/- from him in his court Chamber

on 6.6.1986 for showing favour in his factory challan case which

was pending in his Court for disposal. Sh. Gulab Tulsiyani had

further directed the complainant to pay bribe amount to him at his

residence No. C-75, Double Storey Ramesh Nagar, New Delhi in

the morning of 7.6.1986 at 8 A.M. Since, the Complainant was not

willing to pay this bribe amount, he made a written complaint to

CBI.

2 It was marked to Dy. SP Sh. R K Joshi for

investigation. Sh. Joshi, Dy SP constituted a trap party and directed

the team members to attend the CBI office on 7.6.1986 at 5.30 AM.

3 On 7.6.86 at about 6.00 AM all the members of trap

party including the two independent witnesses and the complainant

and his cousin assembled in the office room of Dy SP Sh. R.K.

Joshi. After formal introduction with each and after observing

other legal and necessary formalities, the complainant Sh. Ajesh

Mittal produced a sum of Rs 2000/ consisting of 20 GC notes of Rs.

100/ each. These GC notes were treated with phenolphthalein

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powder and a practical demonstration of the working of the

phenolphthalein powder and its chemical reaction in colourless

solution of sodium carbonate was given to the members of the trap

party and thereafter the said solution was destroyed. Personal

search of the complainant Sh. Mittal and other member of the trap

party was also conducted and nobody was allowed to keep any cash

or documents except the identity cards with them. Only the

complainant was allowed to keep a sum of Rs. 100/- for meeting

any incidental expenses and his expenses. Thereafter, the treated

GC notes of Rs. 2,000/- were returned to Sh. Ajesh Mittal,

complainant with specific direction to pass on the same to Sh.

Gulab Tulsiyani, MM only on his specific demand.

4 A pocket Sony Micro Cassette Tape Recorder fitted

with a blank cassette was also given to Sh. Ajesh Mittal, after

briefing him about its working and operation and he was directed to

switch on the tape recorder button before talking to Sh. Tulsiyani.

Sh. Shiromani Kumar, cousin of the complainant, was directed to

accompany with the complainant to the house of Sh. Gulab

Tulsiyani and as soon as Sh. Tulsiyani accepted the tainted GC

notes, he should give a signal by coming out of the house of Sh.

Gulab Tulsiyani on pretext of taking the key of the car and by

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scratching his head with his right hand to indicate the acceptance of

bribe money by Sh. Tulsiyani. The two independent witnesses were

directed to remain as close as possible to the house of Sh Tulsiyani

to watch the signal closely.

5 At about 7.20 a.m. the trap party left CBI office and

reached Rajouri Garden Chowk at about 7.55 a.m. At about 8.00 a.

m. Sh. Mittal and Shiromani Kumar as per the direction of Dy. SP

Sh. R K Joshi went inside the house of Sh. Gulab Tulsiyani bearing

no. C-75, Double Storey, Ramesh Nagar, New Delhi. Sh. Tulsiyani

asked them to sit on the sofa lying in front of him.

6 As per instructions, complainant Sh. Mittal before

talking to Sh. Tulsiyani switched on the tape recorder button.

Thereafter, both the complainant and the accused remained engaged

in conversation with each other for about 8-10 minutes in which the

accused Sh. Tulsiyani clearly demanded a sum of Rs. 2,000/- as

bribe from Sh. Mittal in presence of Sh. Shiromani Kumar and on

the specific demand of Sh Tulsiyani, the complainant handed over

the tainted GC notes of Rs. 2,000/- to Sh.Tulsiyani which he

accepted with his right hand and kept the same on the sofa on which

he was sitting. The conversation between Sh. Tulsiyani and Sh.

Mittal at the time of demand and acceptance of bribe were properly

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recorded in the micro cassette tape recorder.

7 After the acceptance of bribe money by Sh. Tulsiyani

from the complainant, Sh. Shiromani Kumar came out of the house

of Sh. Tulsiyani at about 8.10 AM on the pretext of bringing the

key of the car. Sh. Mittal also came out of the house of Sh.

Tulsiyani and gave the appointed signal. On receipt of the signal,

all the members of the trap party including two independent

witnesses rushed toward the drawing room of Sh. Tulsiyani. Seeing

the raiding party rushing towards him, Sh. Tulsiyani immediately

rushed towards his bathroom and ultimately he was found in the

bath cum toilet room where he was engaged in tearing of the tainted

GC notes which was resisted by Dy SP, Sh. Joshi with the help of

other members of the trap party. On the direction of Dy SP Sh.

Joshi, independent witness Sh. M.R. Aggarwal collected the tainted

GC notes from the floor of the bath room. Some of the GC notes

were torn and the pieces of the torn GC notes scattered in the toilet

cum bath room were also collected by witness Sh M.R. Aggarwal.

Sh. Aggarwal brought all these GC notes in the drawing room and

tallied their numbers with the number and denomination mentioned

in the handing over memo. Thereafter, the left and right hand wash

of the Gulab Tulsiyani were taken separately in two separate

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solutions of sodium carbonate and both the solutions turned pink.

These solutions were transferred in two separate clean glass bottles

and sealed with CBI seal No.34/84 after wrapping its mouth with a

cloth wrapper which were initialed by both the independent

witnesses. The bottles were marked 'L' & ' R ' and the recovered

tainted GC notes and the sealed bottles were taken into police

possession vide recovery memo dated 7.6.86 which was prepared

on the spot and signed by all concerned including the two

independent witnesses. The cassette of the micro cassette tape

recorder was also sealed in presence of the two independent

witnesses and the seal after use was handed over to the witness Sh.

S. T. Mukkawar for safe custody.

8 Investigation also disclosed that one challan no.

1244/CL/86 dated 1.1.85 filed by the MCD u/s 416/417 of the DMC

Act against Sh. Ajesh Mittal partner of M/s Mittal Traders (M/s

Mittal Paints & Chemical) factory near Railway Station Badli

Phatak, Railway Station Road, Samepur was pending trial in the

court of Sh. Gulab Tulsiyani, M M Patiala House, New Delhi and

on 6.6.86 complainant Sh. Ajesh Mittal had visited the court of Sh.

Tulsiyani at Patiala House in connection with his challan case

where he was called by Sh. Tulsiyani inside his chamber and

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demanded a bribe of Rs.2,000/- with the direction to pay this

amount in the morning of 7.6.86 at his residence No. C-75, Double

Storey, Ramesh Nagar, New Delhi, failing which he would impose

penalty of Rs.5,000/- on him.

9 Copies required U/S 207 Cr P C supplied to accused.

After hearing both the parties vide order dt. 16.2.2008 charge has

been framed against the accused U/s 161 IPC & u/s 5 (2) r/w Sec.

5(1) (d)of P C Act 1988 against accused Gulab Tulsiyani. Accused

pleaded not guilty to the charge and claimed trial. Hence, this trial.

10 Prosecution, in order to prove its case, has produced

following witnesses:

PW1 Sh Durga Prasad has proved judicial file Ex PW1/A,

Challan dt. 1.1.85 Ex PW1/B, Bailable Warrant Ex PW1/D, report

on bailable warrant Ex PW1/E and order of issuance of NBW Ex

PW1/F.

PW2 Sh V S Bisaria, Chemical Examiner has proved his

report Ex PW2/A.

PW3 Sh. M R Aggarwal, recovery witness has proved

Handing Over Memo Ex PW3/A, recovery memo Ex PW3/B and

correctly identified the case property Ex C-1 to C-29.

PW4 Sh Manoj Kumar Sharma has proved gazette

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notification No.1/62/640/judl. dt. 20/9/74 Ex PW4/A and

suspension order dt. 14.6.86 Ex PW4/B.

PW5 Shri S T Mukkawar has proved the documents already

proved by PW3.

PW6 Sh. Shiromani has proved memo Ex PW6/A and also

proved the documents already proved by PW3.

PW7 Sh Ajesh Mittal is the complainant. He has proved the

documents already proved by other PWs.

PW8 Sh R K Joshi, Retired Addl. DCP has proved FIR Ex

PW8/A and charge sheet Ex PW8/B.

11 Statement of accused recorded U/s 313 Cr. PC,

wherein accused has denied all the allegations made against him

and the evidence produced by prosecution. He has stated that after

disposing cases in his Court, he went to Children Court directly as

per order and performed judicial work there. Copies of the work

including judgment delivered had been produced in this Court. He

did not go to his Chamber nor PW 7 went inside his chamber nor he

demanded any bribe from him. Rather complainant forcibly tried to

thrust the money in his hands and in the process some currency

notes were torn off. Since no money was kept on sofa that is why

there is no wash of the sofa. He was not in Patiala House Courts on

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4th

and 5th

June 1986 and did not meet the complainant at all on 4th

,

5th

and 6th

June 1986 or on any of these dates . He has been falsely

implicated in this case.

12 Accused has examined following witnesses in his

defence:

DW1 Sh. Sunil Dhyani, DW2 Sh. Santosh Kumar Singh,

DW3 Sh. Anil Kumar and DW4 Sh. Om Parkash have deposed

orally and have not proved any document.

DW5 Smt. Bimla Makin has proved endorsement on

affidavit Ex.DW5/A, certified copy of order passed by her as M M

Children Court on 5.6.86 Ex DW5/B and another judgment dt.

5.6.86 Ex DW5/C.

PROSECUTION ARGUMENT

13 Ld. Special Prosecutor Sh. Brajesh Shukla

argued that in this case accused has been charged U/s 161 of Indian

Penal Code and u/s 5(2) r/w 5(1) (d) of P C Act for having accepted

or obtained an amount of Rs.2,000/- from complainant Ajesh Mittal

as gratification other than legal remuneration, as a motive or reward

for showing favour, in exercise of his official function, to

complainant Ajesh Mittal in the matter of factory challan case No.

1244/CH/86 which was pending in his court for hearing and

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disposal.

14 During trial prosecution examined altogether eight

witnesses for bringing home the charges. PW1 Sh. Durga Prashad

who was Reader cum Ahlmad in the court where accused was

presiding over as Judicial officer, though became hostile but his

evidence in totality has proved the fact that judicial file relating to

complainant Ex PW 1/A was pending in the court presided over by

accused. He has further proved Bailable warrants of complainant as

Ex PW1/D, challan Ex PW1/B, report on BWs Ex PW1/E and

NBW Ex PW 1/F issued against complainant Ajesh Mittal. Bail

bond having the signatures of complainant Ajesh Mittal and

signatures of accused/Presiding Officer is also proved by PW1.

15 PW3 and PW5 have proved the fact that one pocket

Micro Sony Cassette recorder fitted with blank cassette was given

to complainant and he was carrying the same in on position while

interacting with accused. They have also proved the fact that

accused was standing in bathroom and was tearing the notes and

some of the notes were scattered on the floor. Wife of accused and

his son have also tried to obstruct the CBI proceedings. As such

they have proved recovery of GC notes and their torn pieces Ex C-1

to C-25.

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16 PW2 Sh. V S Bisaria has proved CFSL Report Ex

PW2/A, according to which in the hand wash of accused presence

of phenolphthalein powder and sodium Carbonate was found.

17 PW4 Sh. Manoj Kumar Sharma has proved gazette

notification Ex PW 4/B according to which accused was

undisputedly a public servant. PW6 and 7 have proved the fact

that accused had informed them in the court that each partner can

be fined Rs.5,000/- and a fine of Rs.5,000/- could be imposed on

the firm. It was intentionally done by accused in order to create the

scope for accepting bribe and putting duress in their mind

otherwise. Transcription of conversation has also proved the fact

that accused/presiding officer has either solicited for bribe or

agreed to accept bribe in the matter relating to the case of

complainant pending in his court.

18 PW8 Sh. R K Joshi has corroborated the version of

complainant as well as witnesses. He has also detailed the

circumstance and situation under which bribe amount was

recovered. The conduct of accused relating to acceptance of

money, according to section 8 of Indian Evidence Act, proves the

ingredient of offence enshrined U/s 161 IPC and Section 5 (2) r/w 5

(1) (d) of P C Act. Under presumption clause, when recovery has

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been proved, it can very well be said that the same was nothing but

illegal gratification other than legal remuneration accepted or

obtained by accused as a motive or reward.

DEFENCE ARGUMENTS

19 It is argued by Ld. Defence Counsel that PW1 Durga

Prasad who was the then reader/ Ahlmad of the Court of accused

has categorically denied every suggestion of the prosecution when

confronted with his alleged statement U/s 161 Cr PC. In his cross

examination he has stated that when he was interrogated by the IO

Sh. B N Jha he had threatened him that he would implicate him in

case he would not depose as per the version given by him.

20 It is further argued by Ld. Defence Counsel that as per

the statement of PW3 Sh. M R Aggarwal complainant Ajesh Mittal

was directed to switch on the tape recorder before talking to the

accused which has been corroborated by PW8 R K Joshi, the Trap

Laying Officer and PW5 Sh. S T Mukkawar. This fact has been

admitted by complainant in his cross examination. With these

instructions he was supposed to record the entire conversation

whatsoever alleged to have taken place between the accused and

the complainant. Complainant has deposed, When we had

occupied our seats, thereafter accused had asked whether I had

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brought the money or not Attention of this witness was drawn

towards the transcript Ex PW 3/DC of the recorded conversation

wherein it is not so recorded. This fact speaks volumes about the

conduct of the complainant and other witnesses, malafide intentions

of the complainant and unfair investigation carried out by the TLO

and IO.

21 As per the statement of TLO Sh. R K Joshi he was

called at about 6 PM by the SP in his office and had given the

complaint Ex PW7/A of Ajesh Mittal with his endorsement and he

discussed the complaint with him. He has further stated that for

satisfying himself he proceeded to the area to find out the general

reputation of Gulab Tulsiyani and he returned at about 8.30 PM

after finding that accused was not enjoying good reputation and

informed this fact to SP who directed for registration of the case

and it was decided to lay a trap on the next morning. Requisition of

two independent witnesses was sent to Oriental Bank of Commerce.

Banks normally close at 5 PM and there is no chance/possibility of

informing the General manager of a Bank after 9.15 PM and further

directions given by him to his subordinates in writing to reach CBI

office on the next morning i.e. 5 AM. This statement in itself

speaks volumes that the TLO is an impulsive liar and can go to any

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the wash bottles Ex P 26 & P-27 having label of Sura. TLO has

admitted this fact in his cross examination which is as follows:

On seeing bottles which are marked as

with the case no. RC40/86 which is Ex PW26 & 27

it is seen that some label of SURA is there on one

bottle. Since it is matter relating to 25 years old I

do not exactly remember whether the labels were

as it is.

23 There is a Court Observation that on one side of both

bottles there is printed label having printed material. On the other

side on white paper RC No. and other particulars of this case are

mentioned, is affixed on some label.

24 It is argued that PW 5 S TMukkawar, in his cross

examination has stated that he was shown bottles when they started

from the CBI office to the spot and at that time the bottles were neat

and clean and were transparent hence they could see through it. He

has stated in his cross examination as follows:

Now I cannot tell whether these bottles are same even after

looking at Ex P26 & P27. meaning thereby that either the evidence

has been tampered with or the witnesses are not telling the truth

thus, the investigation has not been carried out fairly.

25 It is further argued by Ld. Defence Counsel that as far

as the demand by accused either on 4th

or 5th

of June, 1986 is

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concerned, no such question arises since on 4th

and 5th

accused was

working in Civil Lines Zone and in Children court and had even

signed some judgments as has been stated by Smt. Bimla Maken,

Retd. Judge, the then MM Children court who had signed that

judgment on the same date alongwith accused.

26 It is further argued by Ld. Defence Counsel that

witnesses are telling lies deliberately, becomes evident from the fact

that Pws 3, 5, 6 & 8 have stated that the complainant and his

companion PW6 Shiromani Kumar were allowed to keep Rs.100-

each while leaving the CBI office and on personal search after the

trap it has been stated by TLO that a sum of Rs.84/- were found on

the person of PW6 Shiromani and Rs.50/- from the person of the

complainant. The fact remains that the complainant has admitted in

his cross examination that he was allowed to keep Rs.200-300

while leaving CBI office and he had spent Rs.50/- for the petrol on

his way to the house of accused and Rs.100/- was allowed to be

kept by Shiromani Kumar who had accompanied him. Hence,

recovery of Rs.50/- and Rs.84/- creates doubt in the the theory of

prosecution being propounded by the TLO and unfair investigation

carried out by him.

27 It is further argued by Ld. Defence Counsel that

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prosecution has tried to conceal the fact from the Court is that

complainant has admitted that he had engaged an advocate Sh. S C

Malik and had given his challan to him on 4th

June and it was he

who had taken him to R K Joshi and he had learnt that in such

challans only fine of Rs.50/- or Rs.100/- were to be imposed. There

was no reason for paying Rs.2,000/- as illegal gratification when

one knows that he will be fined Rs.100/- only. It cannot be lost

sight that complainant in his complaint has written that accused was

not available in the court on 4th

and 5th

of June, 1986.

28 Complainant and TLO have categorically stated that

when the trap team entered the house/drawing room of accused trap

money was lying on the sofa but no wash of the sofa seat was taken.

The story concocted by the prosecution that accused rushed towards

his bathroom is controverted by the site plan prepared by TLO

himself. It has been admitted by complainant, shadow witness and

TLO that there is no passage from the drawing room or from the

adjoining bedroom to the bath room as indicated in the site plan.

29 It is further argued by Ld. Defence Counsel that only

Rs.650/- was recovered from the personal/house search of accused

and nothing was found in the locker of accused while he was

working as Magistrate for the last 15 years.

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30 With regard to recovery it is argued by Ld. Defence

Counsel that accused has made it clear in his statement U/s 313 Cr

PC in reply to question No.19 that he never demanded any money

rather the complainant forcibly tried to thrust the money in his

hand, in this process some currency notes were torn off and since

no money was kept on the sofa that is why no wash of the sofa seat

was taken. The credibility of the witnesses and the TLO comes

down to Zero when it is found out as per the documents and

statements that they are deliberately telling lies, concealing the truth

from the court and are out and out to falsely implicate the accused.

31 It can not be lost sight of the fact that no sample voice

of accused was ever taken or sent to CFSL for comparison/opinion.

Additions have been made in handing over memo and other

documents as apparent on the face of documents as it is, which

reflects that additions and alterations have been made with a view

to plant a false case upon the accused.

32 Ld. Defence Counsel in support of his arguments as

placed reliance on the following authorities:

P K Gupta Vs. CBI, 2011 (4) JCC

2352, Sita Ram Vs. The State of Rajasthan,

1975 Crl. LJ. 1224, Panalal Damodar Rathi

Vs. State of Maharashtra AIR 1979

Supreme Court 1191, Suresh Kumar

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Shrivatava Vs. State of MP 1994 Crl. L.J.

3738, G V Nanjundiah Vs. State, AIR

1987 Supreme Court 2402, Jagdish Narain

Vs. State of Rajasthan, 2009 (4) Criminal

Court Cases 171 (Rajasthan), A Subair Vs.

State of Kerala, V (2009) SLT 272,

Municipal Corporation of Delhi Vs. Ganga

Ram and another DLT Vol. III P-6 (1967)

and Kharaiti Lal Vs. The State DLT Vol. I,

Page 362 (1965)

PUBLIC SERVANT AND SANCTION

33 PW4 Manoj Kumar Sharma, Senior Judicial Assistant,

Gazette Branch, High Court of Delhi has proved Gazette

Notification No. 1/162640/judl. dt. 20.9.74 Ex PW4/A vide which

accused Gulab Tulsiyani was notified to be appointed in the cadre of

Delhi Judicial Service as Judicial Officer. In the month of June

1986 accused Gulab Tulsiyani was working as Metropolitan

Magistrate and posted at Patiala House Courts. Even this fact has

not been disputed on his behalf during the trial or at the time of

addressing final arguments by Ld Defence counsel , thus it is

undisputed that he was working as public servant on 6.6.86 and on

7.6.86.

34 Originally charge sheet has been filed against accused

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Gulab Tulsiyani on 31.3.87 in the court of the then Special Judge,

however accused was discharged by Hon'ble High Court vide

judgment dt. 30.3.2002 on the ground that sanction order for his

prosecution was not in conformity with the mandatory provision of

article 235 of the Constitution of India with the observation that

challan may be filed after obtaining proper sanction order and after

removing the legal infirmities in the sanction order. Accused

retired in the month of September, 1995. Present charge sheet has

been filed in the court of my Ld. Predecessor on 16.11.2002 after his

retirement.

35 Cognizance of the offences against the accused was

taken by the Ld. Predecessor of this court on 22.5.03. Accused

was retired in the month of September, 1995 from the service, thus

ceases to be a public servant on the date of filing of charge sheet as

well as on the date of taking of cognizance, hence no sanction is

required for his prosecution in this case.

36 My Ld. Predecessor Sh. Dinesh Dayal, the then Special

Judge,CBI vide his order dt. 16.2.2005 directed to frame a charge

against the accused for the offence punishable U/s161 IPC and

Section 5 (2) r/w 5(1) (d) of P C Act, 1947. My Ld. Predecessor

Sh.Dinesh Dayal has also accordingly framed charge against

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accused on 16.2.05. Accused has challenged the above order of

framing of charge of my Ld. Predecessor against him vide criminal

revision petition No. 208/2005. In his revision petition he has also

disputed the validity of cognizance of offences taken against him by

my Ld. Predecessor. Hon'ble High Court vide order dt. 10.12.2010

dismissed the revision petition filed by the accused. Relevant

portion of the order of Hon'ble High Court, in this regard, is as

under:

It is admitted case of prosecution that

charge sheet against the petitioner has been filed

without obtaining sanction for his prosecution

under Section 6 of the P C Act, 1947. The plea

taken by the prosecution is that there was no need

of sanction for prosecution as by the time the

charge sheet was filed, the petitioner had alreadyceased to hold the Office of Metropolitan

Magistrate. The question of law which requires

consideration is whether or not after the cessation

of office by a public servant either by retirement or

termination of service, sanction for his prosecution

under section 6 of the P C Act, 1947 is sine qua

non for taking cognizance of the offences

purportedly submitted by him. Law on this issue is

well settled. It has been held by the Supreme Court

in various pronouncements that once a public

servant accused of an offence under P C Act has

ceased to hold public office, no sanction for his

prosecution is required.

In the case of Kali Charan Vs. State of Orissa,

(1998) 6 SCC 411, it was hold that a public servant who

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the successor court could not have taken a view

that no sanction for prosecution was required

because the petitioner had retired because as such,the order amounts to review of the earlier order

passed by the Court.

I find no substance in this contention. On

perusal of the order dt. 30.3.2002 of the then

Special Judge, it transpires that while discharging

the petitioner, the Special Judge gave opportunity

to the prosecution to file fresh charge sheet after

obtaining proper sanction, after removing the

defect/infirmities in the sanction order. From this,it is obvious that by that order, the Special Judge

left a window open for the prosecution to file a

fresh charge sheet. once the fresh charge sheet

was filed, in my considered view, the then Special

Judge who dealt with the charge sheet was within

his powers to consider the charge sheet and take

cognizance on the strength of the facts prevailing

at that stage. Since the petitioner had retired

before the filing of subsequent charge sheet, there

was no requirement of law to obtain sanction for

his prosecution. Therefore, I find that the learned

Special Judge, while passing impugned order dt.

16.2.2005 rightly took the view that no sanction

for prosecution was required and framed charges

against the petitioner on the basis of the material

produced by the prosecution.

37 In view of above order of Hon'ble High Court, now it

is well settled that no sanction is required for the prosecution of

accused in these circumstances.

DEMAND, ACCEPTANCE AND RECOVERY

38 It is forcefully argued on behalf of accused that

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prosecution has failed to prove the alleged demand of illegal

gratification made by the accused from the complainant and

acceptance of the bribe money by him and recovery of the same

from his conscious possession.

39 Complainant Ajesh Mittal had given his written

complaint dt. 6.6.86 to S P, CBI stating therein that he was

challaned by an Inspector of Corporation which was pending in the

Court of Sh. Gulab Tulsiyani. He has categorically mentioned in

his complaint that on 5.6.86 he came to know that warrants had

been issued against him, hence he had gone to court in the morning

of 6.6.86 alongwith Shiromani Kumar. He got his challan put up

before the Magistrate who had told him that a fine upto Rs.5,000/-

can be imposed on each partner as well as on the firm. After that

Magistrate had left the court and gone in his chamber. He was

called by the Magistrate in his chamber. Magistrate had told him

that he will impose a nominal fine on him if he (complainant)

would pay him (accused) Rs.2,000/- on the next day morning at his

residence.

40 The fact that challan of complainant was pending in the

Court of accused Gulab Tulsiyani and Non Bailable warrants of

complainant were issued and complainant had attended the court of

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accused Gulab Tulsiyani on 5.6.86 and 6.6.86, has been proved by

PW1 Durga Prasad who was the then posted as Reader cum

Ahlmad in the court of accused Gulab Tulsiyani. Relevant portion

of his statement in this regard is as under:

During the period 1985-86 I was posted as

Reader cum Ahlmad in the Court of Sh Gulab

Tulsiyani the then MM, Patiala House Courts N

Delhi. I know accused Gulab Tulsiyani present in

the Court. I have seen original judicial filecontaining 1 to 26 pages pertaining to case File

MCD Vs Ajesh Mittel and M/S Mittal Traders U/S

416/ 417 DMC Act. The concerned file was being

dealt with by me under my hand writing , the

judicial file is Ex PW1/A. I have seen challan

dated 1.1.85 in respect of Ajesh Mittal which was

received in the Court, this challan bears the

signature of Gulab Tulsiyani at point A which I

identify as I have worked under him and have seen

him writing and signing, the challan is Ex PW1/B.

The challan was put up before the accused on

29.4.1986 under my hand writing for issuance of

bailable warrant against Ajesh Mittal . Earlier this

challan was put up before the Mobile Court . The

order of bailable warrant for a sum of Rs.2000/-

was issued by the accused Gulab Tulsiyani under

his initial at point A for appearance of accused in

the case on 16.5.86. The order bears the

signatures /initial at point A which I identify. The

bailable warrant under the intial of accused at point

A is Ex PW1/D which I identify. The warrant was

duly executed and the bailable warrant was

received back with the report which is Ex PW1/E.

On 16.5.86 Ajesh Mittal did not appear / turn up in

the Court . Since the bailable warrant was received

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very late therefore the challan was not put up

before Presiding officer. Again the challan Ex

PW1/B was put up before the accused on 5.6.86 towhich accused directed me for issuance of NBW

which was put up under my hand writing, which is

Ex PW1/F.

On 5.6.86 Ajesh Mittal came to the court

and enquired about the challan in the name of

Ajesh Mittal. I informed him that NBW has

been issued against him. So better you come

tomorrow for disposal of challan. On 6.6.86

Ajesh Mittal came to court at about 10.30 or 11

AM and contacted me At his request I took out

his challan from the bundle and after preparing

the notice U/s 251 Cr PC put the same before

Ld. Presiding officer after the signature over

notice U/s 251 Cr PC. Ld. PO had enquired

from Ajesh Mittal whether he want to dispose

of the challan or not. Ajesh Mittal had told that

he had applied for the licence. Ld. PO hadgiven the file to me with the directions to write

an ordersheet, adjourning the case for 7.6.86

with the directions to accused to produce all the

documents.

41 Complainant Ajesh Mittal has appeared in the witness box as

PW-7 wherein he has deposed as follows:

The challan was done by MCD Inspectorregarding pollution, caused by our factory. As per

challan, I was to appear in the Court of Sh.Gulab

Tulsyani on 04/06/1986. Accordingly, I had gone

in the court on 04/06/1986 at about 10/11.00 am.

Accused Gulab Tulsyani had told us that we both

the partners will be fined Rs.5,000/- each. I told

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46 In this case accused was trapped on 7.6.86 while

statement of complainant ,in this court, was recorded in the year

2011. Prior to it statement of complainant was also recorded on

12.8.88 during the previous trial of this very accused in the Court of

the then Special Judge. That judicial file is also attached with this

file. In these circumstances because of long lapse of time such

mistake can be the result of confusion however the demand of

illegal gratification on 6.6.86 is duly corroborated by the

documentary evidence i e complaint Ex PW7/A and transcription of

tape recorded conversation Ex PW3/DC and from the statement of

PW 6 Shrimoni Kumar . Relevant portion of his statement in this

regard is as under:

Accused Mr. Tulsiyani was sitting on his

seat who had told us that a fine of Rs.5,000/- on

each partner and a fine of Rs.5,000/- on the firm

can be imposed. We had appeared and Mr.

Tulsiyani had told us that a form costing 15 paise

only be got filled up from the reader. I and Ajesh

Mittal had brought that form. Reader of the court

got filled that form from Ajesh Mittal. At that

time Judge Gulab Tulsiyani was not sitting on his

seat in the court and had gone inside his chamber.

We requested the reader for getting the challan

disposed of. He had gone in the chamber of judge

and after coming from the chamber he had told us

to have a date/adjournment. We requested to him

to get the challan disposed of on that day. Then he

went inside the chamber and after coming out of

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Ld. PO had given the file to me with the directions

to write an ordersheet, adjourning the case for

7.6.86 with the directions to accused to produce allthe documents.

50 In view of above discussion it is well proved on the

judicial file that complainant had met the accused on 6.6.86 when

accused had made the initial demand of illegal gratification from

him.

51 PW8 R K Joshi, TLO of this case has deposed that

after receiving the complaint ExPW7/A on 6.6.86 from the

Complainant Ajesh Mittal, he had enquired about the reputation of

accused Gulab Tulsiyani and informed SP, CBI who directed him to

register the case and to lay a trap. Relevant portion of statement of

PW8 R K Joshi, TLO of this case, is as under:

The SP, CBI introduced me to them and

told that Sh.Ajesh Mittal has given a complaint

dated 06/06/1986 against Sh. Gulab Tulsiyani, a

judicial officer. The same is already exhibited as

PW-7/A on which the then SP, Sh.V.N.Dixit put

his endorsement to me at point B. I can identify

his handwriting and signatures since I have

worked under him and have seen him writing and

signing. I discussed the complaint over there and

then brought the complainant and Shiromani

Kumar to my room for further discussion. After

satisfying myself, I proceeded to the area to find

out the general reputation of Sh.Gulab Tulsyani to

make sure that his conduct was generally good or

bad. I returned at about 8.30 pm after finding that

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he was not enjoying good reputation. I

accordingly informed the SP, CBI who directed

for registration of the case. At about 9.15 pm, Ireceived a copy of the FIR and the complaint. The

FIR is Ex.PW-8/A. The same bears the signatures

of Sh.V.N.Dixit, the then SP at point A. It was

decided to lay a trap on the next morning.

Accordingly, requisition for two independent

witnesses was sent to the Oriental Bank of

Commerce. I also constituted a raiding party

including Inspector Vijay Rawal, Inspector

N.S.Kharait, Inspector Sukh Ram, SI L.K.Asthanaand lower subordinates including Ct.Suraj Bhan

and L/Ct.Zaida Qureshi. The complainant and the

raiding party members were directed to assemble

on 07/06/1986 between 5.30 to 6.00 am.

52 PW7 Complainant Ajesh Mittal with regard to

demand of illegal gratification made by accused on the spot has

deposed as follows:

I and Shiromani Kumar had entered in the

house of accused after pressing the call bell.

Accused himself had come then we entered in the

house of accused. Accused had asked me to sit on

the sofa. I and Shiromani Kumar sat down on the

sofa and switched on the tape recorder. Accused

had asked us whether we had brought the money. I

told him that I had brought the money. Accused

asked us to pay the money to him, therefore I

handed over the money to accused. I after coming

out had flashed the signal which was told to me to

flash by the CBI officers in the CBI office after

completion of the transaction. Thereafter the entire

staff had come inside the house of accused. After

seeing the staff, accused had rushed towards the

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bathroom. Money was recovered from accused by

the CBI officers including R.K.Joshi in the

bathroom. Accused was trying to tear of thecurrency notes in the bathroom. Accused was

brought out of the bathroom by the CBI officers.

Witness had also come. Accused was trying to

throw the currency notes in the flush of the

bathroom. All the currency notes were collected

by the officers. Handwash of accused were taken

after bringing him out of the bathroom.

In his cross examination, in this regard. this

witness has deposed as follows:

CBI officers had also came in drawing room.

Independent witness had also come alongwith

them. Accused rushed to the bathroom. CBI

officers had also followed him. They might

have gone from drawing room to Bath room

directly, now I do not remember exactly. We

had also entered inside the room......

.... The hand wash taken on the spot

were sealed in the bottle. The bottles were

brought by the CBI officials. Cassette after

taking from me was sealed. Seal was given to

independent witness after use however name of

that witness Now I do not remember .

53 In this regard, PW6 Shiromani Lal who had accompanied

the complainant to the accused in his house alongwith the tainted money

has deposed as follows:

I and Ajesh Mittal had gone inside the

house of Gulab Tulsiyani. Other members

remained outside. Gulab Tulsiyani met us in the

drawing room of the house. Ajesh Mittal had told

Gulab Tulsiyani that yesterday he was very afraid.

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Gulab Tulsiyani told Achcha. Thereafter money

was given in the hand of Gulab Tulsiyani. Mr.

Tulsiyani had kept that amount on the sofa afterholding GC notes with his right hand. The amount

was demanded by him. After that I came out from

there telling that I had forgotten the key of my

vehicle and thereafter I flashed the signal after

which the team members entered in the house

through drawing room and bed room. Mr.

Tulsiyani rushed towards the toilet. He torn away

some notes. He was throwing the GC notes in the

toilet R K Joshi caught hold both the hands ofGulab Tulsiyani in the toilet by his wrists. The

notes were got collected from the witness.

Number of GC notes were got tallied with the

Handing Over memo and found the same. both the

hands of accused were got washed separately by R

K Joshi in a vessel. Wash had turned pink which

was preserved in the bottles. Bottles were sealed.

Today I have seen 20Govt. Currency notes of Rs.

100/- denominations each. (Witness after tallying

the numbers of GC notes with the handing over

memo already Ex PW3/A has stated that these are

the same currency notes Ex C1 to C25 which

were recovered from the toilet of the house of

accused) . Some of the GC notes are in torn

condition. I cannot tell how these GC notes were

torn as I came out of the toilet.

I have seen Handing Over Memo already Ex

PW3/A which bears my signatures at point Y on

each page. I have also seen recovery memo

already Ex PW3/B which bears my signatures at

point Y. I also identify my signatures at point C

on memo Ex PW6/A which was prepared when

sealed cassette was opened and played on micro

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cassette tape recorder.

In his cross examination, in this regard, this

witness has deposed as follows:The sofa set on which we sat in the house

of accused was having cloth covering. Bribe

money was not kept on the sofa by Ajesh Mittal. It

was given in the hand of accused who kept the

same on the sofa. No wash of the sofa was taken.

I had told the TLO on the spot afterward that bribe

money was kept by the accused on the sofa. Ajesh

Mittal was also present in the room who had given

the money. I had given the signal after coming outof the gate of the house of accused to the trap team.

54 With regard to recovery of tainted money independent

witness PW3 M R Aggarwal has deposed as follows:

At about 8 A M Mr. Ajesh Mittal and

Siromani Kumar went inside the house of Sh.

Gulab Tulsyani. After about 10 Minutes SiromaniKumar came outside the house and gave pre

decided signal to the police party. After some

minutes Mr. Ajesh Mittal also came out of the

house alongwith Mr. Gulab Tulsyani. Then the

police party including myself rushed towards the

residence of Mr. Tulsyani and on suspicion Mr.

Tulsyani also ran back inside his house. We also

rushed inside the house to recover the bribe

amount. I entered through the drawing room of the

house and some members of trap party also

entered through the other door of the house. His

wife, and his son were also present in the house

and they tried to obstruct the activities of raiding

party. Then we found that Mr. Tulsyani present in

the court (witness has correctly identified the

accused) was trying to tear of the GC notes near

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55 In his cross examination this witness, in this regard,


After receiving signal from Srimoni

Kumar we all proceeded towards the house of the

accused. CBI officers were ahead of me. We first

entered a room where a sofa set was lying. In that

room I heard some voices coming from gallery

side hence, I went towards that gallery. A kitchen

and bathroom was by the side of gallery where

accused Tulsiyani was present and some other

persons including family members and CBI

personnel were present. I had gone to that gallery

through drawing room where the sofa set was

lying. When I entered inside the gallery accused

was trying of tear of the GC notes and CBI

officials were trying to come over it. Thereafter

both the hands of the accused were caught by the

wrist. I had entered the bathroom as well as some

GC notes were lying on the floor of the bathroom.

Now I do not remember whether the floor of the

bathroom was tiled or marbled. Toilet was also in

that bathroom. Washbasin was not inside the

bathroom. Few of the currency notes were lying in

the bathroom were wet. Now I do not remember

whether I had told in my statement that some of

the GC notes were wet or not. Bathroom was of

about 35 to 40 sq. feet in dimension as far as now

I recollect. Site plan was prepared on the spot in

my presence. I have seen site plan Ex.PW3/DB(D6). It is correct that in the site plan the entry

from it in the gallery is not visible. Some of the

currency notes were collected from the floor of the

bathroom and some currency notes collected from

the washbasin which was outside the bathroom.

Now I did not remember from which room Mr.

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Joshi had gone to the bathroom.

56 PW-5 the other independent witnes S T Mukkawar has

also corroborated the above version with regard to recovery of

tainted amount from the possession of accused. Relevant portion of

his statement, in this regard, is as under;

And after a short while on receiving of

appointed signal the members of trap party

standing outside rushed inside the house of

accused Gulab Tulsiyani. When I reached inside

the house Mr M R Aggarwal was already reached

in the house and he was standing on the gate of

bathroom. In the bath room Joshi and one or two

other CBI officer holding Mr Tuliyani by his both

the wrist. Perhaps Gulab Tulsiyani is present in the

Court. One lady was also present in the bath room

who was dragged out from the bath room by the

lady constable. That lady must be opposing the

trap party hence the lady constable was dragging

her out from the bath room. Thereafter Tulsiyani

was brought to the drawing hall . GC notes were

lying scattered on the floor of bath room . Mr M R

Aggarwal and one CBI officer had collected those

GC notes at the asking of Dy SP. Some GC notes

were in torn condition. Mr M R Aggarwal had

brought those GC notes to Dy SP. We had tallied

the number of GC notes with the hading over

memo Ex PW3/A, which also bears my signaturesat point B , which was prepared in the office of

CBI. The numbers of GC notes correctly tallied .

The GC notes are Ex C-1 to C-25 ( Some GC notes

are in torn condition that is why the GC notes were

in 25 in number ) Witness has correctly identified

the GC notes C-1 to C-25 after talling with Ex

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PW3/A. Wash of both the hands o accused was

taken separately in the solution prepared of Sodium

Carbonate by dipping the fingers in the solution,wash of both the hand fingers was turned pink. The

hand washes of both the hands were poured in two

separate bottles and both the bottles were sealed

separately. I and Mr M R Aggarwal put their

signature on cloth wrappers affixed on both the

bottles. Both bottles are labelled L and R . I can

identify my signature at point B which are now in

feded condition . Cloth wrappers are already Ex

P-28 and 29 and bottles Ex C-26 and C-27. TheGC notes and bottles were taken into possession

vide recovery memo Ex PW3/B on which I can

identify my signatures at point D.

57 In his cross examination, in this regard, this witness


I had seen the signal flashed from the spot.

The complainant and Shriomani Kr had come outof the house but I do not remember who had

flashed the signal out the two. I was standing

across the road . All other team members were

occupying their position at different place. Mr

Joshi on the road near the house of accused. Lady

constable was also standing beside Mr Joshi. I do

not remember whether any person was standing in

the street ( Gali ) or not. During the raid

proceedings I had entered in side the house of

accused. I cannot recollect whether any door of the

house of accused opening towards the house or

accused or not. I do not remember from which

side we had entered the house of accused. I do not

recollect now whether I had seen any person in the

bed room of the accused when I entered in it. From

the bed room I had gone towards bathroom side.

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Bathroom was besides the bed room. Now I do not

remember whether the bathroom was attached with

the bed room . I had gone upto the bathroomthrough the bed room. When I entered the accused

was in the bathroom . Accused was brought from

bath room to the drawing room after apprehending.

I had gone in the drawing room intersee as the

same are intersee connected. I had seen the

bathroom however I do not remember whether it

was cemented or tiled . I did not enter the

bathroom. I can tell where the GC notes were lying

int he bath room as the same were visible fromoutside bath room. GC notes were mainly lying on

the floor. I cannot recollect whether the floor was

wet or not. Some currency notes were torn but I

cannot say who had torn the same. It is incorrect to

suggest that I had not entered in the house. It is

incorrect to suggest that there was no passage from

the bed room to the bath room and to the drawing

room. It is incorrect to suggest that I had came out

of the house of accused form the bed room itself. I

do not remember whether Mr Joshi had prepared

any site plan or not in my presence. Now I cannot

tell from the site plan Ex PW3/DB as how I had

gone upto bathroom from the bed room . I am

unable recollect as to how I entered the drawing

from the bed room. It is incorrect to suggest I am

intentionally telling lie and I had not entered the

house of accused.

58 With regard to the recovery of tainted money from the

possession of accused TLO R K Joshi has deposed as follows:

At about 8.10 am, Sh.Shiromani Kumar

and Ajesh Mittal entered the house of Sh.Gulab

Tulsyani. Ct.Suraj Bhan remained sitting in the

car posing as Chowkidar of the factory of

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Sh.Mittal. At about 8.18 am, Sh.Ajesh Mittal came

out of the house of Sh.Tulsyani to take the keys of

the car. Shiromani Kumar also followed him andhave the appointed signal by scratching his head.

Immediately, we rushed to the house of

Sh.Tulsyani who had come to the gate to see them

off. Seeing us, Sh.Tulsyani ran back to the

drawing room and picked up the GC notes and

entered the bathroom behind. We also rushed. He

started tearing off the notes. He was held by me

and Sh.Vijay Rawal, Inspector. The independent

witnesses and other members of the party alsoreached the spot. Sh.Tulsyani was disclosed our

identity. He threw the GC notes in the bathroom

itself. Sh.Aggarwal, witness was directed to

recover the GC notes from the floor of the

bathroom. Sh.Tulsyani was brought back to the

drawing room where his hand wash of both the

hands was taken. The solutions turned pink which

were transferred into clean glass bottles and sealed

with the seal 34/84. The seal was handed over to

Sh.S.T.Mukkawar.

59 In this regard, this witness, in his cross examination,


I entered house of accused through

his drawing room as far as I remember. When I

entered I saw Sh Gulabi Tulsiyani picking up the

tainted money from the sofa and rushing to the

bathroom, which was near to drawing room. I do

not remember the location of the door in the

drawing room and the bath room. However we

followed accused to the bathroom who was tearing

of the tainted money and was able to tear of some

of them.

The hand wash is always duly tightly

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packed in trap cases. The neat and clean bottles

without wrapper pasted thereon were used initially.

On seeing the bottles which are marked with thecase No. RC40/86 which is Ex P.27 and P.26 it is

seen that some label of SURA is there on one

bottle, since it is matter relating to 25 years old I do

not exactly remember whether the labels were as it

is.

Court Observation:

On one side of both the bottles

there is printed label having printed material . On

the other side white paper on which RC No. andother particular of this case are mentioned is

affixed on some label.

I do not remember whether the sofa was

having cloth covering or rexin covering . I do not

remember if the seat of the sofa were detachable

or not. It is correct that no wash of sofa seat was

taken. It is incorrect to suggest that the money was

forcibly put into the hand of accused and the

ensuing scuffle the currency notes got torn of.

60 Tainted GC notes were recovered vide recovery memo

Ex PW 3/B which has been signed by M R AGGarwal, S T

Mukkawar, Shiromani Lal, Ajesh Mittal, R K Joshi etc. copy of

which was also given to accused Gulab Tulsiyani which he had

received vide his endorsement at point N under his signatures. All

these facts have also been specifically mentioned in the recovery

memo which has been proved by all the above referred witnesses in

this court, in their statements.

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61 Ld. Defence Counsel referring site plan Ex PW3/DB

argued that there is no direct entry from the drawing room to the

bathroom. Ld. Defence Counsel argued that it has been admitted by

complainant, shadow witness and TLO that there is no passage

from the drawing room or from the adjoining bed room to the bath

room as indicated in the site plan hence there is no truth in the story

of prosecution that accused had torned tainted GC note in the

bathroom. As discussed above all the witnesses PW3 M R

Aggarwal, PW5 S T Mukkawar, PW6 Shiromani Kumar, PW7

Ajesh Mittal and PW8 Sh. R K Joshi have specifically deposed that

on seeing the trap team accused after picking up tainted GC notes

from the sofa rushed in bathroom; and was in the process of

torning of GC notes when he was apprehended. PW5 S T

Mukkawar has explained the way from which they reached to

bathroom following the accused. Their testimony in this regard,

remained unshaken. In these circumstances there is no merit in this

argument.

62 Demand of illegal gratification made by accused at the

time of trap and acceptance of the same has also been proved from

the tape recorded conversation, transcription of which is Ex

PW3/DC. The relevant portion of the same is as under:

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63 PW7 Complainant Ajesh Mittal has deposed that he

was given a tape recorder with the instruction to switch it on after

reaching near the accused. In this regard, relevant portion of his

statement is as under;

I had switched on the micro cassette

recorder after entering in the drawing room of the

accused. Now I do not remember whether it

switched off automatically or I had switched it off.

Shiromani had not spoken any word during

the period till we remained in the house of

accused. Prior to apprehending the accused there

was no noise. I canot tell whether anybody had

spoken or uttered even after apprehension ofaccused by CBI officer on the spot. I had not

asked Shiromani to remain silent. Now I do not

remember whether R K Joshi had told Shiromani

to remain silent. Or not. It is incorrect to suggest

that on 7.6.86 my no conversation was recorded

with the accused at his house.

64 With regard to preparation of the transcription of the

recorded conversation, this witness has further deposed as follows:

In the office, the cassette was opened in

the presence of two witnesses and the

transcription of conversation was prepared

and cassette was again resealed. Then after

sometime I was allowed to go but I cannot

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recollect at what time I left CBI office. The

recovery memo already exhibited as PW-3/B

bears my signature at point A and memo alreadyexhibited as PW-6/A also bears my signature at

point A. Transcription of cassette was prepared

in my presence on which I identify my

conversation with accused. Same is already

exhibited as PW-3/DC. My statement was

recorded.

65 In this regard, in his cross examination, this witness


...... The cassette having spot recorded

conversation was de-sealed in the CBI office in

my presence. Transcription of that cassette was

prepared and it was re-sealed. Now I do not

remember who had prepared the transcription and

how much time was consumed in it........

......... While preparing the transcription

micro cassette was played again and again to write

the transcription. Now I cannot tell the time spent

for preparation of transcription. CBI officers and

independent witnesses were also present there at

that time. I had also signed it. Witnesses had also

signed it. Attention of witness is drawn towards

transcription Ex PW3/DC which does not bear

either his signature or any other witness.

66 PW6 Shiromani Kumar who had accompanied the

Complainant to the house of accused at the time of trap has also

deposed that a tape recorder fitted with micro cassette was given to

Ajesh Mittal who had kept the same in his payajama. In his cross

examination PW6 has deposed that blank cassette was given to

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Complainant Ajesh Mittal alongwith tape recorder. It was Sony

Micro Cassette. He had denied the suggestion that micro cassette

tape recorder was given to him. PW6 has also deposed that

transcription of the recorded conversation was also prepared in the

CBI office. Independent witness PW3 M R Aggarwal has deposed

as follows, in this regard :

One pocket micro Sony Cassette tape recorder

fitted with blank cassette was also given to Sh.

Ajesh Mittal and was directed to switch on the

same before talking to Mr. Tulsyani.

67 In his cross examination, with regard to preparation of

the transcription of the recorded conversation, this witness has

deposed as follows:

Tape recording conversation was

played in the CBI office after returning of office

after completing the proceedings. its

transcription was also prepared. I do not remember

who had prepared that transcription and I do not

remember whether I has signed the same or not. It

is correct that on transcription Ex.PW3/DC(D7)

my signatures are not there. It is incorrect to

suggest that I had not heard any conversation. It is

also incorrect to suggest that no transcription was

prepared in my presence.

68 The other independent witness PW5 ST Mukkawar has

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also deposed that a pocket micro cassette tape recorder was given to

Ajesh Mittal . Relevant portion of his statement in this regard is as

under:

Then a pocket Micro Cassette tape

recorder make Sony fitted with blank cassette was

also given to Sh. Ajesh Mittal. After briefing

about its working and he was directed to switch on

tape recorder before talking to Mr Tulsiyani.

69 With regard to preparation of transcription of recorded

conversation, this witness has deposed as follows:

After completing the house search CBI

team left the house for CBI office alongwith Mr

Tulsiyani and reached the CBI at about 2.15 pm.

Then after reaching there the sealed cassette

was open in my presence as well as in the

presence of Mr Aggarwal and its transcription

of conversation was prepared which was

containing the fact of demand and acceptance

of bribe by the accused from Mr Mittal, the

cassette was again sealed in our presence and

duly initialized by us.

70 In this regard in his cross examination, this witness has

deposed as follows:

Micro cassette was taken back from the

complainant . I do not remember whether the same

was played on the spot or not. However I

remember it was played in CBI office. Micro

cassette was sealed on the spot. It was desealed in

the CBI office. I donot know whether any memo

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was prepared with regard to desealing of

cassette.

71 PW8 Dy. SP R K Joshi, TLO of this case has also

specifically deposed that complainant was given a micro cassette tape

recorder with the direction to switch it on before talking to accused.

Relevant portion of his examination in chief is as under:

A micro cassette tape recorder was also

arranged and a blank cassette was fitted into it.

The blank cassette was played before the

independent witnesses to show that it did not

contain any conversation. Ajesh Mittal was

directed to switch on the tape recorder before

talking to Sh.Gulab Tulsyani and record the

conversation which takes place between them.

72 This witness has also deposed that after completion of

trap proceedings in the house of accused tape recorder was opened

and cassette was taken out and sealed with the seal 34/84. Relevant

portion of his statement in this regard is as under:

The tape recorder was opened and the cassette

was also sealed with the same CBI seal i.e. 34/84.

73 He has prepared the transcription of the tape recorded

conversation in his own handwriting and proved the same in the

court after hearing the micro cassette. Relevant portion of his

statement, in this regard, is as under:

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In CBI office, the sealed cassette was

opened in the presence of independent witnesses

and the tape was played to find out the recordedconversation. A script of the same was prepared

which is already Ex.PW-3/DC. This script is

written from point A to A1 in my writing.

At this stage, ld.SPP made a request that

micro cassette may be desealed to put to the

witness. Request allowed. The packed containing

micro cassette is desealed in which one khakhi

envelope was found having micro cassette in its

plastic cover. It has been shown to the witness who

after seeing the same identified the micro cassette

as the cassette used in this case. The same is

Ex.C-30. Memo already Ex.PW-6/A was prepared

for opening and sealing of the micro cassette. It

bears my signatures at point D. The seal was again

handed over to Sh.S.T.Mukkawar.......

....... At this stage, ld. Prosecutor made

a request that he may be allowed to play the

micro cassette to tele with the transcription

hence sealed envelope be de-sealed to take out

the micro-cassette. Request allowed. Sealed

envelop opened and micro cassette taken out of it

and inserted in the micro-cassette player produced

by Ct. Narender Singh from Malkhana CBI and

played to the witness.

Witness after hearing the micro-cassette played

in this court confirmed the fact by comparing

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the voice from the transcription,already Ex.

PW3/DC by ticking with red ink and make it

clear that the dialogs recorded in front of Ajesh

Mittal complainant is mentioned in this

transcription as AM and the voice of Gulab

Tulsyani in the shape of dialogs mentioned in

transcription as GT. He further confirmed that

voice recorded in micro-cassette is the same as

mentioned in corresponding dialogs of Ajesh

Mittal and Gulab Tulsyani in Ex. PW3/DC.

74 This witness has been cross examined at length.

relevant portion of his cross examination with regard to tape

recorded conversation and preparation of its transcription is as

under;

The seal of the tape was opened for

noting down the conversation in the CBI office

and it was again seal with the same seal whichwas obtained and returned to the same witness. A

memo Ex PW6/A is prepared in regard to the

preparation of transcription and playing the

cassette in which it is mentioned that the tape has

again been sealed by CBI seal 34/84 and given

back to Sh S T Mukhawar.

75 This is the only cross examination of this witness

conducted qua the tape recorded conversation and preparation of its

transcription. From a bare perusal of this cross examination it is

clear that nothing such has come out in the cross examination so as

to disbelieve the version given by this witness. With regardto

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At the time of preparing of

transcription I had identified my voice and that

of accused.

78 Nothing has come on the record to prove that

complainant has not correctly identified his voice and that of

accused in the tape recorded conversation while preparing the

transcription. It is well settled legal preposition that report of an

expert whether handwriting expert or voice distinguishing expert is

an opinion, which in itself is not conclusive. There are several

authorities that expert's report cannot be relied upon without

corroboration from independent evidence. Here, in the case in

hand identification of voice by complainant during cross

examination is a direct evidence and rather more credible than the

report of an expert.

79 The evidence of complainant, in this regard, has also

been corroborated by PW8 R K Joshi. Relevant portion of his

statement in this regard, is as under:

..... a script of the same was prepared

which is already Ex PW3/DC. This script is

written from point A to A1 in my handwriting.

80 For identifying the voice, he has further deposed as

follows:

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Witness after hearing the micro-cassette

played in this court confirmed the fact by

comparing the voice from the transcription,already

Ex. PW3/DC by ticking with red ink and make it

clear that the dialogs recorded in front of Ajesh

Mittal complainant is mentioned in this

transcription as AM and the voice of Gulab

Tulsyani in the shape of dialogs mentioned in

transcription as GT. He further confirmed that

voice recorded in micro-cassette is the same as

mentioned in corresponding dialogs of Ajesh

Mittal and Gulab Tulsyani in Ex. PW3/DC.

81 From the above discussion it is proved by

complainant as well as TLO that recorded conversation is between

accused and complainant and TLO has deposed that he has

prepared the transcription of the tape recorded conversation

correctly which is Ex PW3/DC on the identification of complainant

Ajesh Mittal. In these circumstances not sending of cassette for

distinguishing the voice of complainant and accused cannot be

treated fatal to the prosecution.

82 It is also correct that transcription Ex PW3/DC does

not bear anybody's signature. Ld. Defence Counsel argued that

both the independent witnesses complainant and Shiromani Lal

have deposed that they had signed the transcription but it does not

bear anybody's signatures. Ld. Defence Counsel has also

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confronted all these witnesses with the transcription Ex PW3/DC

with regard to their signatures. All these witnesses have admitted

that it does not bear their signatures. Memo Ex PW6/A was made

with regard to preparation of transcription of the tape recorded

conversation which has the signatures of all these witnesses. The

memo Ex PW6/A is dt. 7.6.86. All these witnesses have deposed

that transcription of the tape recorded conversation was prepared on

7.6.86 itself in CBI office. According to TLO R K Joshi

transcription Ex PW3/DC was prepared on 7.6.86. Thus, all these

witnesses corroborates the fact of preparation of transcription on

7.6.86. Memo Ex PW6/A with regard to preparation of

transcription of tape recorded conversation is as under:

In the presence of the signatories to

this memo sealed cassette was opened and

played on the micro cassette tape recorder.

The transcription of the conversation has been

taken down separately with the help of Sh.

Ajesh Mittal. The tape has again been sealed

by CBI seal 34/84 and given back to Sh. S T

Mukkawar.

83 This memo has been signed by Shirmani Lal, Ajesh

Mittal, S T Mukkawar, M R Aggarwal and R K Joshi. These

witnesses have deposed that they had signed the transcription Ex

PW 3/DC, however, their signatures are not available on Ex PW

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3/DC but on Ex PW6/A, the memo vide which transcription Ex.

PW3/DC was prepared. Statements of these witnesses have been

recorded in this court in the year 2010 and 2011 i.e.after the lapse

of about 24-25 years. It appears that this mistake is because of long

lapse of time. In these circumstances there is no merit in the

argument that transcription of tape recorded conversation was not

prepared in the presence of these witnesses because transcription Ex

PW 3/DC does not bear their signatures.

84 Ld. Defence Counsel argued that in the transcription

Ex PW 3/DC the wordings when we had occupied our seat

thereafter accused had asked whether I had brought the money or

not. as deposed by the complainant is not present in the tape

recorded conversation or in its transcription which speaks the

volume of malafide intention of complainant and other witnesses

and also proved the unfair investigation carried out by TLO. Even

if this portion is excluded still there is enough material in the tape

recorded conversation to prove the demand of illegal gratification

made by accused and its acceptance on the spot. Trap was

conducted on 7.6.86 while the statement of witnesses in this case

has been recorded in the year 2010 and 2011 i.e. after a lapse of

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88 Recovery memo Ex PW3/B was prepared on the spot

and a copy of the same was given to accused which he has received

vide his endorsement with signature at point N,

Received copy of the recovery memo.

Sd/- accused

89 Accused who was a judicial official, knowing the law

well could have mentioned his above defence in his endorsement.

It is not his case till date that TLO or any CBI officer had not

allowed/restricted him to mention his above defence at the time of

receiving of the copy of recovery memo.

90 According to accused he was manhandled by the CBI.

Judicial Officers are under the direct control and protection of

Hon'ble High Court . If the GC notes were forcibly thrust in his

hands or he was manhandled by the CBI officers, he could have

brought these facts to the notice of Hon'ble High Court. He could

have also filed a criminal complaint in the court having competent

jurisdiction. But he has not done so for the reasons best known to

him.

91 A suggestion, in this regard, has been given only to

TLO RK Joshi, in his cross examination, which is as under:

It is incorrect to suggest that the money

was forcibly put into the hand of accused and the

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ensuing scuffle the currency notes got torn of.

92 No such suggestion has been given to Complainant

Ajesh Mittal and Shiromani Kumar who had accompanied the

complainant in the house of accused Gulab Tulsiyani and witnesses

the exchange of transaction of bribe. Both these witnesses are the

best person to depose in this regard. Similarly, no such suggestion

has been given to both the independent witnesses M R Aggarwal

and S T Mukkawar.

93 In C K Damodaran Nai Vs. Govt. of India, AIR 1997

Supreme court 551, Hon'ble Supreme Court, in such circumstances,

has held as follows:

Prevention of Corruption Act (2 of 1947),

Ss. 5 (2), 4 Bribery Accused, a public servantalleged to have obtained sum of Rs.1,000/- as

illegal gratification from hospital authorities

Recovery of marked currency notes from

possession of accused not disputed Evidence of

independent witness that they saw complainant

handing over notes to accused and accused putting

them into his pocket Defence plea that

complainant thrusted said notes into pocket of

accused is false Presumption under S. 4 attracted

Non rebuttal of said presumption by accused

Conviction under S. 161 of Penal Code proper.

94 In the present case complainant as well as Shiromani

Kumar has specifically deposed that money was demanded by

accused and after receiving it from the complainant accused had

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kept the same on the sofa and when trap team entered in the house

of accused, accused after picking up the tainted money ran towards

bathroom and he was apprehended by CBI officers while he was

in the process of torning the tainted GC notes.

95 Hence taking these defences at the time of recording of

his statement U/s 313 Cr PC, appears to be concocted and after

thought.

96 Hon'ble Supreme Court in Parkash Chand Vs Delhi

Admn AIR 1979 SC 400 in para No.8 has observed as follows:

It was contended by the ld. Counsel for

the appellant that the evidence relating to the

conduct of the accused when challenged by the

Inspector was inadmissible as it was hit by section

162 Criminal Procedure Code. He relied on adecision of the Andhra Pradesh High Court in

D.V. Narisimhan V.State,(AIR 1969 andh Pra

271). We do not agree with the submissions of Sh.

Anthony. There is a clear distinction between the

conduct of a person against whom an offence is

alleged which is admissible under section 8 of the

Evidence Act, if such conduct is influenced by any

fact in issue or relevant fact and the statement

made to a police officer in the course of aninvestigation which is hit by sec. 162 Criminal

Procedure code. What is excluded by sec. 162

Criminal Procedure Code is the statement made to

a police officer in the course of investigation and

not the evidence relating to the conduct of an

accused person ( not amounting to a statement)

when confronted or questioned by a police officer

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during the course of an investigation. For

example, the evidence of the circumstances,

simplicitor,that an accused person led a policeofficer and pointed out the place where stolen

articles or weapons which might have been used in

the commission of the offence where found

hidden, would be admissible as conduct, u/s 8 of

the evidence Act, irrespective of whether any

statement by the accused contemporaneously with

or antecedent to such conduct falls within the

purview of Section 27 of the Evidence Act(vide

Himachal Pradesh Administration Vs. OmPrakash AIR 1972 SC 975

97 From the above discussion it is again proved that

accused GulabTulsiyani had accepted Rs. 2, 000/- voluntarily and

consciously which was also recovered from his conscious

possession.

98 From the foregoing discussion in this judgment it is

also proved that hand washes of both the hands of accused was

taken which had turned pink in colour which was preserved in

separate bottles and sent for chemical examination. PW2 Sh.V S

Bisaria who had chemically examined the hand washes has

deposed that chemical examination of both the samples had given

positive test for phenolphthalein and sodium carbonate. He has

proved his report Ex PW2/A in this regard.

99 It proves the presence of phenolphthalein powder on

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both the hands of accused. Phenolphthalein powder appeared on

the hands of accused because he had received the phenolphthalein

quoted GC notes from Ajesh Mittal and kept the same on the sofa.

100 The importance of phenolphthalein test was underline

by the Hon'ble Supreme Court in Som Parkash Vs State of Delhi

AIR 1974 Supreme Court 989, where in para 10 it is held as

under:

............... of course, the oral

evidence of PWs 1and 4 by itself, if believed as

rightly believed by the High Court , proves the

passing of the money to the accused and its

production by him when challenged by P.W 7 .

The fact is indisputable that the hands, the

handkerchief and the inner lining of the trouser

pocket of the accused turned violet when dipped in

soda ash solution. From this the State counsel

argues that on no hypothesis except that the notes

emerged from the accused's Pocket or possession

can the triple colour change be accounted for . The

evidence furnished by inorganic chemistry often

outwits the technology of corrupt officials,

provided no alternative reasonable possibility is

made out. The appellant offers a plausible theory.

PW 1 kept the notes with him and his hands thus

carried the powder. He gave a bottle of cake to the

accused and the bottle thus transmitted particles of

phenolphthalein to the latter's hands. He ( the

accused ) wiped his face with the handkerchief and

put it into his trouser pocket thus contaminating

the lining with the guilty substance. Moreover, the

inner lining was dipped by PW 7 with his hands

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which had the powder . Thus, all the three items

stand explained, according to him. These recondite

possibilities and likely freaks have been rejectedby both the courts and we are hardly persuaded

into hostility to that finding. It is put meet that

science- oriented detection of crime is made a

massive programme of police work, for in our

technological age nothing more primitive can be

conceived of than denying the discoveries of the

sciences as aids to crime suppression and nothing

cruder can retard forensic efficiency then swearing

by traditional oral evidence only therebydiscouraging the liberal use of scientific research

to prove guilt.

101 In Raghbir Singh Vs State of Punjab (1976) 1 SCC

145 while discarding the oral and documentary evidence laid on

behalf of the prosecution is not such as to inspire confidence in the

mind of the Court, the Supreme Court observed in para No.11 as

follows:-

We may take this opportunity of pointing

out that it would be desirable if in cases of this

kind where a trap is laid for a public servant, the

marked current notes, which are used for the

purpose of trap, are treated with

phenolphthalein power so that the handling of

such marked currency notes by the public

servant can be detected by chemical process

and the court does not have to depend on oral

evidence which is something of a dubious

character for the purpose of deciding the fate of

the public servant.

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102 It is argued on behalf of accused that no wash of the

sofa was taken which proves his defence that GC notes were

forcibly thrust in his hands and he had not demanded the bribe.

103 It is correct that no wash of sofa was taken, PW6

Shiromani Kumar in his cross examination on behalf of accused has

specifically deposed that sofa was having cloth covering Relevant

portion of his cross examination in this regard, is as under:

The sofa set on which we sat in the

house of accused was having cloth covering

Bribe money was not kept on the sofa by Ajesh

Mittal. It was given in the hands of accused

who kept the same on the sofa. No wash of the

sofa was taken.

104 Dy. SP R K Joshi, TLO of this case, who had taken the

hand washes and has not taken the wash of sofa has appeared in the

witness box as PW8. He has been cross examined at length.

Relevant portion of his cross examination, in this regard is as under:



remember if the seat of the sofa were detachableor not. It is correct that no wash of sofa seat was

taken.

105 Not even a suggestion has been given to this witness

that he has not taken wash of sofa because tainted money was not

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110 It is argued on behalf of accused by Ld. Defence

Counsel that the bottles containing hand washes Ex P26 & P-27

were not the clean bottles. The bottles were having label of Sura

which shows tampering with of the wash bottles. Ld. Defence

Counsel has cross examined the TLO, in this regard, in detail.

Relevant portion of his cross examination, in this regard, is as

under:

I entered house of accused through his drawing

room as far as I remember. When I entered I saw

Sh Gulabi Tulsiyani picking up the tainted money

from the sofa and rushing to the bathroom, which

was near to drawing room. I do not remember the

location of the door in the drawing room and the

bath room. However we followed accused to the

bathroom who was tearing of the tainted moneyand was able to tear of some of them.

The hand wash is always duly tightly

packed in trap cases. The neat and clean bottles

without wrapper pasted thereon were used

initially. On seeing the bottles which are

marked with the case No. RC40/86 which is Ex

P.27 and P.26 it is seen that some label of SURA

is there on one bottle, since it is matter relating

to 25 years old I do not exactly remember

whether the labels were as it is.

Court Observation:

On one side of both the bottles there is

printed label having printed material . On the

other side white paper on which RC No. and

other particular of this case are mentioned is

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affixed on some label.



remember if the seat of the sofa were detachable or

not. It is correct that no wash of sofa seat was

taken.

111 Accused Gulab Tulsiyani has not denied the handling

of the tainted money which is clear from his statement r

judge bribery case delhi

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