1. A charge-sheet was filed by CBI against Sh. Neeraj Kumar (A-1), Sh. Neeraj Walia (A-2), Sh. Ramesh Chandra (A-3), Sh. Ajay Chandra (A- 4), Ms. Upma Chandra (A-5), Ms. Seema Manga (A-6) and M/s Unitech Ltd. (A-7) for offense under Section 120-B IPC read with Section 7, 7A, 8, 9, 10 and 12 of Prevention of Corruption Act 1988 (in short P.C. Act) and substantive offense thereof.

2. Facts in brief as disclosed from the charge-sheet under Section 173(2) Cr.P.C are that an FIR bearing No. RC-DAI-2018-A-0023-DLI was registered on 31.07.2018 on source information informing that Neeraj Walia (Advocate), Neeraj Kumar (the then S.H.O P.S. Saket), Sanjay Sharma (Inspector, P.S. Hauz Khas), Ramesh Chandra, Ajay Chandra, Smt. Upma Chandra, Ms. Seema Manga and Pradeep Kumar of M/s Unitech Limited and some unknown persons were indulging in corrupt and illegal activities.

3. Source informer had informed that various criminal cases were registered in Delhi Police and pending investigation against the Directors of M/s Unitech Limited. (a real Estate company involved in the business of construction of real Estate Projects).

4. Source informer had informed that accused Sh. Neeraj Kumar and Sh. Sanjay Sharma in conspiracy with Sh. Neeraj Walia, Advocate and in connivance with Ms. Seema Manga had been obtaining undue advantage in the form of illegal gratification from M/s Unitech Limited through Sh. Neeraj Walia, Advocate for improperly and dishonestly performing their duties in the investigation of the criminal cases against the directors/promoters of M/s Unitech Ltd. It was further informed that Ms. Seema Manga got delivered the regular undue advantage and illegal gratification so demanded by them through Pradeep Kumar, an employee, on 30.07.2018 to Sh. Neeraj Walia, Advocate, who had to deliver it to Sh. Neeraj Kumar, (the then S.H.O, P.S. Saket) and Sh. Sanjay Sharma (Insp. P.S. Hauz Khas) preferably on 31.07.2018. Source further informed that accused Sh. Neeraj Walia, Advocate was likely to deliver the bribe amount to accused Sh. Neeraj Kumar, the then SHO P.S. Saket and Sh. Sanjay Sharma, Inspector P.S. Hauz Khas on 31.07.2018 and accordingly FIR/RC was registered and investigation was marked to the IO Sh. Raman Shukla who decided to catch the accused persons while transacting the bribe amount on 31.07.2018.

5. Investigation revealed that in order to nab the accused persons, a team was constituted by CBI on 31.07.2018. Service of two independent witnesses, namely, Ashok Kumar and Harinder Singh Malik, both Assistant Sanitary Inspectors, SDMC, Green Park, DEMS, New Delhi, were availed and consequently they assembled on 31.07.2018 in the office of Superintendent of Police, CBI, ACB, New Delhi. The purpose of assembly was explained to all and pre-trap proceedings were carried out. CBI trap team along with two independent witnesses reached the vicinity of the police station Saket at about 8.30 A.M. At about 11.30 A.M, a Honda City car bearing registration No. DL 3C AK 9507 being driven by accused Neeraj Walia was seen coming towards the police station. He parked the car on the main road near the police station and came out of the car. He was carrying a white envelope in his hand which he later kept in his right side pant pocket part of which was visible and went inside the P.S. Saket, New Delhi. After around 15 minutes, he along with Sh. Neeraj Kumar, SHO (in police uniform) came out from Saket police station. The white envelope was not visible in the right side pant pocket of accused Sh. Neeraj Walia.

6. Investigation further revealed that Inspector Sh. Raman Shukla, CBI intercepted the accused Neeraj Kumar (A-1) and challenged him of having demanded and accepted bribe of Rs. 2 Lakhs from accused Sh. Neeraj Walia. Inspector Sanjay Upadhaya (of CBI Trap Team) intercepted accused Sh. Neeraj Walia (A-2) and challenged him of having delivered bribe amount of Rs. 2 lakhs to accused Sh. Neeraj Kumar (A-1). The personal search of Neeraj Walia was conducted by Inspector Sanjay Upadhaya in presence of independent witness Harender Singh Malik, however, the white colour envelope was not found in his possession. On interrogation, he disclosed that he had handed over the envelope containing Rs. 2 lacs to accused Sh. Neeraj Kumar.

7. Investigation further revealed that accused Sh. Neeraj Kumar was also interrogated. He admitted of having accepted the money from Sh. Neeraj Walia. He (Neeraj Kumar), thereafter, led the CBI team to his rest room adjacent to his room, opened the almirah and pointed towards a black check coat/blazer in which he had kept the white colour envelope containing the bribe amount of Rs. 2 lakhs. The coat of the accused was checked by independent witness Ashok Kumar and white colour envelope was found from the right side inner pocket of the coat. Independent witness Ashok Kumar carried the said blazer to the official room of accused Neeraj Kumar where another independent witness Sh. Harender Singh Malik was called in. Independent witness Harender Singh Malik took out the white envelope from the right side inner pocket of the blazer. Both the independent witnesses took out the bribe amount from the envelope and they counted the same and informed that it was an amount of Rs. 2 lacs of Rs. 2000/- denomination. The distinct numbers of the notes were recorded on a separate sheet and the bribe amount along with the envelope and coat were seized.

8. Investigation further revealed that the search of the car bearing No. DL 3CAK 9507 (of accused Sh. Neeraj Walia) was also conducted and Rs. 50,000/- were recovered from it in the presence of independent witness Sh. Harender Singh Malik and seized vide separate car search memo. The network video recorder (NVR) along with its power cable were also seized to obtain the footage captured by the CCTV cameras installed in the police station. Both the accused persons Neeraj Kumar and Neeraj Walia were arrested. The post trap proceedings were carried out with all legal formalities and a recovery memo dated 31.07.2018 was prepared wherein the details of the post trap proceedings have been incorporated.

9. Investigation revealed that 58 criminal cases had been registered against the promoters/directors of M/s Unitech Limited at the police station Saket. These cases had been lodged mainly by home buyers who could not get possession of the flats. Theses case were registered against Sh. Ramesh Chandra, Sh. Ajay Chandra, M/s Unitech Ltd., Sh. Sanjay Chandra, Sh. Siddharth Shankar Bhowmick, Sh. Rana Rajesh Gangahar, Sh. Baldev Gupta, Sh. Subodh, Sh. Ashok Kumar Wadhwa, Sh. Vinod Kumar Sharma, Ms. Jyoti Kanaujia, Sh. Amit Verma, Sh. Ratenshwar Prasad, Sh. Sandipt Roy, Sh. Dilip Aggarwal, Sh. Haldar, Smt. Minoti Bhar, Sh. G. R. Ambwani, Sh. Sunil Rekhi, Sh. Chander Kant Jain and others at P.S. Saket. In one of such cases (FIR No.640/2016 u/s 409/420/34 IPC of Saket P.S.) accused Sh. Ajay Chandra, MD of M/s Unitech Ltd. was arrested and remanded to judicial custody and is still in judicial custody in the said FIR/case.

10. Investigation further revealed that Ministry of Home Affairs had authorised/granted permission to CBI for interception of mobile numbers of accused Sh. Neeraj Walia, Sh. Lakhvir Chand Sharma, accused Ms. Seema Manga, Sh. Pradeep Kumar and a landline number installed in Tihar Jail in the name of accused Sh. Ajay Chandra (landline was installed by the order of the Hon'ble Supreme Court to facilitate settlement with home buyers etc.)

11. Investigation further revealed that Special Unit of CBI made available 81 calls recordings in DVD for the period from 21.05.2018 to 31.07.2018 with respect to the mobile/landline numbers of the above persons namely Neeraj Walia, Lakhbir Chand Sharma, Seema Manga, Pradeep Kumar and Ajay Chandra. The transcriptions of all 81 calls recordings were prepared.

12. Investigation revealed that there were recorded conversations between the accused Seema Manga, Secretary of M/s Unitech Limited and accused Neeraj Walia, Advocate, on 21.05.2018, 22.05.2018 and 25.06.2018, as per which, accused Sh. Neeraj Walia was in touch with the accused Ms. Seema Manga in the matter of regular payment of illegal gratification to the above police officials. There was also a recorded conversation between Lakhvir and Yudhvir, employees of M/s Unitech Limited. The conversation on 27.06.2018 between accused Ms. Seema Manga and Ramesh Chandra revealed that Ramesh Chandra of M/s Unitech Limited had directed to deliver Rs. 2.0 lacs to accused Sh. Neeraj Kumar, the then SHO, P.S. Saket. There was another conversation between accused Sh. Neeraj Walia and accused Ms. Seema Manga on 27.06.2018 whereby accused Ms. Seema Manga had conveyed about fulfilling her promise of sending “two” in an envelope through Pradeep which was one of the regular installments of bribe amount of Rs. 2.0 lacs. There was another recorded conversation between accused Ms. Upma Chandra and her husband accused Sh. Ajay Chandra on 03.07.2018 whereby accused Sh. Ajay Chandra had advised accused Ms. Upma Chandra to talk to the SHO. There was one more recorded conversation between accused Ms. Seema Manga and accused Sh. Neeraj Walia where Ms. Seema Manga had promised to send money/illegal gratification on 30.07.2018 to accused Sh. Neeraj Walia. There was another recorded conversation between accused Sh. Ajay Chandra and accused Ms. Upma Chandra on 28.07.2018 whereby both of them agreed to make transaction of the alleged gratification /undue advantage.

13. The conversation between accused Sh. Neeraj Kumar and Sh. Neeraj Walia and between accused Ms. Seema Manga and Sh. Neeraj Walia on 28.05.2018, 01.06.2018, 02.06.2018, 13.06.2018, 25.07.2018 and 28.07.2018 revealed that they were in criminal conspiracy and in pursuance thereof there were regular payment of illegal gratification to the accused Sh. Neeraj Kumar, the then SHO, P.S. Saket. Accused Ms. Seema Manga used to send money/illegal gratification through Pradeep Kumar, employee of M/s Unitech Limited.

14. The transcript dated 30.07.2018 between accused Ms. Seema Manga and accused Ms. Upma Chandra revealed that on 30.07.2018, accused Ms. Seema Manga had contacted accused Ms. Upma Chandra about the demand made by the police officials through accused Sh. Neeraj Walia. She had obtained her permission in this regard. Investigation also revealed that on 30.07.2018, the conversation had taken place between Sh. Pradeep and accused Ms. Seema Manga, between accused Sh. Neeraj Walia and Ms. Seema Manga, between Ms. Seema Manga and Upma Chandra, between Sh. Neeraj Walia and Sh. Pradeep and between Sh. Deepak Mishra and Sh. Pradeep which revealed that accused Ms. Seema Manga had sent the bribe money for the accused Sh. Neeraj Kumar through Sh. Pradeep Kumar, an employee of M/s Unitech Limited. There were also conversations between accused Sh. Neeraj Walia and accused Sh. Neeraj Kumar on 31.07.2018.

15. Investigation further revealed that Neeraj Kumar, SHO PS Saket, was the Chief Investigating Officer of the cases registered against M/s Unitech Limited or its group companies/directors/promoters including Ramesh Chandra, Ajay Chandra, Sanjay Chandra and others at P.S. Saket. As per standing Order No. 6/98/C&T issued by DCP, HQ(II), Delhi, the SHO shall remain the Chief Investigating Officer of the cases in a police station and shall also be responsible for investigation being conducted by all his subordinates. Sh. Rakesh Kumar Jaiswal, Sub-Inspector of Saket PS {Investigating Officer (IO) of 30 cases registered against M/s Unitech Ltd. and its directors/promoters} stated that Sh. Neeraj Kumar, SHO of P.S. Saket had been supervising the cases investigated by different IOs in the capacity of Chief Investigating Officer of Saket Police Station.

16. Investigation further revealed that accused Sh. Neeraj Walia was an advocate by profession registered with Delhi Bar Council having enrollment No. D/640/1993 and was issued an identity card by M/s Unitech Ltd. as a Consultant. He was getting regular payments in his firm M/s Walia Associates from one of the subsidiary company of M/s Unitech Ltd. namely M/s QNS Facility Management Pvt. Ltd. on an average monthly payments of Rs. 3 lakhs per month. It was also revealed that he was looking after the complaints and cases registered in P.S. Saket and P.S. Hauz Khas and other trial cases in the District Courts (Saket) going on against M/s Unitech Ltd. and its promoters/Directors. In this regard, he was in constant touch with accused Neeraj Kumar, SHO P.S. Saket to deliver the regular payments of illegal gratification as revealed from their recorded conversation.

17. Investigation further revealed that accused Sh. Ramesh Chandra was the Executive Chairman of M/s Unitech Limited while the accused Ajay Chandra was the Managing Director. Sh. Pradeep Kumar Thakur was Data Entry Operator in M/s Unitech Limited and also worked as rider/office boy as and when instructed by his seniors. On 30.07.2018, he had delivered a packet containing the illegal gratification sent by accused Ms. Seema Manga to accused Sh. Neeraj Walia. Accused Ms. Seema Manga was the Secretary of M/s Unitech Limited. She used to take instructions from accused Sh. Ramesh Chandra and Sh. Ajay Chandra and conveyed the same to the different departments/heads. It was she who had taken the approval on 30.07.2018 from Ms. Upma Chandra to send illegal gratification to P.S. Saket and P.S. Hauz Khas.

18. Investigation further revealed that accused Sh. Neeraj Walia and accused Sh. Neeraj Kumar were caught at around 11.45 AM on 31.07.2018 and after having knowledge of their arrest, other accused persons namely accused Sh. Ramesh Chandra, Sh. Ajay Chandra and Ms. Seema Manga and other discussed the issue over phone and their conversation got recorded which revealed that after coming to know of FIR and the name of Unitech in the said FIR, they conspired to hide Pradeep Kumar Thakur, their employee who had delivered the bribe amount to Neeraj Walia. They had also instructed him to switch off the phone and disappear. Thus, their subsequent acts revealed their involvement in the matter of delivery of illegal gratification to the accused Neeraj Kumar who was caught after the transaction of the said bribe amount of Rs. 2 lacs, given to him by accused Neeraj Walia, Advocate on behalf of M/s Unitech Ltd.

19. The hard disk from the NVR seized from P.S. Saket containing the CCTV footage/recordings of the movement of accused Neeraj Kumar and Neeraj Walia was sent to CFSL, Delhi and CFSL Chandigarh for forensic examination and preparation of images/copies. The sample specimen voice of the accused Neeraj Kumar, Neeraj Walia and Ms Seema Manga were taken and sent to CFSL for expert opinion from where report is awaited (subsequently stands filed confirming voices ascribed to respective speaker). Ramesh Chandra, Ajay Chandra and Upma Chandra refused to give their specimen voice. The sanction for prosecution against Neeraj Kumar was taken from the competent authority.

20. Investigation revealed that sufficient evidence was not found against the accused Sanjay Sharma, Inspector ATS, P.S. Hauz Khas, however, departmental enquiry was recommended against him. Sufficient evidence was also not found against accused Pradeep Kumar Thakur. Hence, name of both were mentioned in column No. 12 of the charge- sheet vide which accused Sh. Neeraj Kumar, Sh. Neeraj Walia, Ms. Seema Manga, Mrs. Upma Chandra, Sh. Ramesh Chandra, Sh. Ajay Chandra and M/s Unitech Ltd. were forwarded for being summoned and tried for offense under Section 120-B IPC r/w Section 7, 7A, 8, 9, 10 and 12 of Prevention of Corruption Act, 1988 and substantive offense thereof.

COGNIZANCE

21. Vide order dt. 11.02.2019 Ld. Predecessor of this Court was pleased to take cognizance of the offenses punishable u/s 120-B IPC r/w section 7, 7(A), 8, 9 and 10 of the Prevention of Corruption Act as amended uptodate and substantive offenses thereof against the accused persons, namely, Neeraj Kumar, Neeraj Walia, Ramesh Chandra, Ajay Chandra, Upma Chandra and Seema Manga and M/s Unitech Limited. No cognizance of offense under Section 120-B IPC read with Section 12 of the Prevention of Corruption Act and substantive offense thereof were taken, apparently inadvertently. All accused persons were summoned and provision of Section 207 CrPC was complied with to reach the stage of discharge or framing of charge against accused persons.

CONTENTION OF PROSECUTION

22. Sh. Pramod Singh, Ld. PP for CBI after referring to the facts of the case, material on record and statement of witnesses contended that there are sufficient materials/grounds to frame charge against all the accused persons in respect of all the offense mentioned above.

CONTENTION OF DEFENSE

23. However, Ld. Defense Counsels for respective accused persons have vehemently opposed the framing of charge and their contentions have ranged from “no evidence at all to insufficient evidence, to inadmissible evidence, to non-convertible into admissible evidence”, “from illegal investigation to planted evidence, to illegal intrusion into privacy” primarily and mainly to assert that there are no sufficient ground to proceed against accused persons and have, thus, sought discharge of the respective accused persons.

24. Sh. Sanjay Sharma, Ld. Counsel for accused Neeraj Kumar, Sh. Harsh Kumar Sharma, Ld. Counsel for accused Neeraj Walia, Sh. Vishal Gosain, Ld. Counsel for Ramesh Chandra and Ajay Chandra, Ms. Rebecca M. John, Ld. Sr. Advocate with Ms. Maulshree for accused Ms. Upma Chandra and Sh. Bhawook Chauhan for accused Ms. Seema Manga have all raised common legal and factual grounds while seeking discharge of the respective accused and have also raised issue of “no evidence or insufficient evidence” etc. with specific reference to their respective client.

25. One of the issue raised by every defense counsel was the absence of substantive evidence qua demand of bribe amount, acceptance of bribe amount etc. because as per them prosecution is relying upon intercepted conversations over mobile/landline telephone either interse accused persons or between accused persons and other or interse non-accused persons, to prove demand, bribery, acceptance of bribe or the alleged conspiracy to bribe but which as per them is only a corroborative piece of evidence and not substantive evidence and it has been contended that in the absence of substantive piece of evidence, the corroborative evidence, howsoever reliable it may be, cannot give rise to grave suspicion about the commission of offense or form basis for conviction. It has been contended that in the present case investigating agency has not collected any substantive evidence and in the absence thereof the corroborative evidence, howsoever pure and strong it may be, cannot give rise to grave suspicion of the commission of crime by the accused persons. It has been further contended that if two views are possible on the material relied upon by the prosecution, it cannot give rise to grave suspicion about commission of offense by accused justifying putting the accused on trial.

26. Defense Counsels have taken turn to rip-off every bit of charge-sheet, therefore reproducing their respective contentions will not only put forth repetitive contentions but will also make this order sufficiently lengthy. Hence, their collective focal point of contentions are being reproduced here as briefly as possible along with accused specific contentions.

27. Defense Counsels have submitted that present charge-sheet is liable to be declared illegal as Investigating agency have not taken prior permission of competent authority as required under Section 17A of the P.C. Act, 1988 before undertaking investigation. It has been contended that aforesaid Section became operative w.e.f. 26.07.2018 and present FIR was registered on 31.07.2018 and therefore it has been contended that charge-sheet filed following investigation without such requisite permission is no charge-sheet in the eyes of law, consequently accused persons are entitled to be discharged.

28. It has been contended that there is no evidence of demand having been made by a public servant. It has been contended that for the offense under Section 7 of P.C. Act demand of bribe is sine qua non and there is no evidence which could even lead this court to infer demand for undue advantage on the part of the public servant. There is no eye witness in whose presence or from whom demand of bribe was made by the public servant. It has been contended that a public servant even if caught with tainted money will not be guilty of offense under Section 7 of P.C. Act unless it is proved that he had demanded undue advantage or accepted the money/undue advantage knowing it to be bribe. It has been contended that demand should be direct, clear, unambiguous and unqualified demand as inference of demand of bribe is not permissible in law. It has been contended that in the present case prosecution is asking court to draw inference of demand as admittedly there is no direct evidence in this regard.

29. It has been contended that there is no evidence to the effect that private accused persons conspired to pay bribe to public servant. It has been contended that sine qua non for the offense of conspiracy is agreement to commit an offense or an illegal act and offense of conspiracy precedes the commission of offense agreed to be committed and the moment offense agreed is attempted or executed the offense of conspiracy stands completed and any act or deed or movement after the agreed offense is attempted or executed cannot be used to prove conspiracy. It has been contended that although it is difficult to have direct evidence of conspiracy and mostly has to rely on circumstantial evidence but the circumstances which must be used to prove the conspiracy must be complete and each circumstances must be established firmly admitting of no other inference than the inference sought to be inferred. It has been contended that there are missing links in the chain of events from which even prima-facie inference of conspiracy cannot be drawn. Hence, there is no evidence for conspiracy as well.

30. It has been contended that accused Neeraj Walia was allegedly seen coming out of the car with an envelope in his hand which he later on kept in right side front pant pocket. It has been contended that no one has seen the contents of the said envelope and as such there is no evidence about the contents of the envelope. It has been contended that prosecution is assuming that envelope had the currency notes only on the basis of the fact that an envelope was recovered from the coat of the accused Neeraj Kumar which had money. It has been contended that it is not the case of the prosecution that entire chamber and rest room attached to the chamber of the SHO Neeraj Kumar was searched and only one envelope with currency notes from the blazer/coat of the SHO was recovered. If it had been such case, probably inference of envelope containing money having delivered by accused Neeraj Walia would have been drawn. Once possibility of availability of another envelopes in the chamber and rest room attached to chamber of the SHO was not ruled out by searching the place thoroughly, it has been contended that it is difficult to infer that the envelope containing currency was delivered by Neeraj Walia. It has been contended that CCTV clearly shows that Chamber and Rest Room attached to chamber was not searched. Hence, it has been contended that even if it is assumed that an envelope was delivered by Neeraj Walia to Neeraj Kumar, it is difficult to hold with certainty that envelope contained currency notes.

31. Further, it has been contended that chamber and rest room was open place and any police official or peon etc. can enter the said room/chamber in the absence of SHO and with permission when SHO was present. It has been contended that admittedly when SHO Neeraj Kumar was apprehended he was in his official vehicle and was just moving out of the P.S. (clearly visible in CCTV footage) and by the time he was brought back into his chamber, the chamber and rest room was entered by many persons as clearly seen in the CCTV footage and even after apprehension but before recovery of envelope. It was contended that even one raiding team member alone entered the rest room prior to recovery It has been further submitted that neither in the recovery memo nor in the statement of the Trap Team member it has been mentioned that Almirah from which blazer/coat of the Neeraj Kumar was taken out was under the lock and key of the Neeraj Kumar. Thus, chamber, rest room attached to chamber and almirah kept in rest room, all were open place with almost unfettered movement of the officials and staffs of the Police Station and thus possibility of planting the envelope with currency cannot be ruled out. Further, there is no explanation why independent witness from the Police Station were not made witnesses to the alleged recovery, after all they were also responsible officials and engaged in the service of preventing and investigating crime. Hence, it has been contended that recovery of white envelope with currency notes is shrouded with many suspicions and thus cannot be relied upon particularly when there is no evidence to remove the said suspicious circumstance shrouding the recovery.

32. It has been further contended that as per recovery memo D-3, at the instance of TLO Raman Shukla, Sh. Shitanshu Sharma, Inspector CBI, ACB had joined the trap team at the spot after attending a matter in Patiala House Court but his personal search was not conducted before any member of trap team and anytime before trap to rule out the possibility of availability of any incriminating material on his person and such defect go to the root of alleged recovery introducing serious element of doubt in the alleged recovery and no amount of evidence available on record could make that doubtful situation into a case beyond reasonable doubt. Thus, the very foundation of the case i.e. recovery is doubtful.

33. It has been further contended that as per Standing Order No. 6/98/C&T issued by DCP, HQ (II), the SHO of a Police Station shall remain the Chief Investigating Officer of the cases in a police station and shall also be responsible for investigation being conducted by all his subordinates. It has been further contended that Sh. Rakesh Kumar Jaiswal, Insp. P.S. Saket was the investigating Officer (IO) of all 30 cases then pending against all the directors/promoters of Unitech Ltd. and Unitech Ltd. It has been contended that despite having supervisory jurisdiction over all the investigation being conducted by his subordinates, unless IO of a case is not hand in glove with SHO, the SHO cannot tamper with investigation and thus cannot favour accused even if SHO wished to. It has been contended that in the statement of Rakesh Kumar Jaiswal (LW17) there is nothing which would show that SHO Neeraj Kumar was interfering with the manner of investigation by IO Rakesh Kumar Jaiswal. It has been contended that knowing progress of the case being investigated by IO Rakesh Kumar Jaiswal would not make role of SHO Neeraj Kumar suspicious as he was doing his official duty because as per prosecution itself he was Chief Investigating Office and responsible for all investigation being carried out by his subordinates. LW17 Sh. Rakesh Kumar Jaiswal in his statement did not impute any incriminating act on the part of accused Neeraj Kumar. In fact there is nothing incriminating in the statement of LW17 Rakesh Kumar Jaiswal with whose association SHO could not have favour Unitech Ltd. and its directors/promoters. In a way it can be said that statement of LW17 Sh. Rakesh Kumar Jaiswal does not support the allegation of the prosecution. Hence, it has been contended that whole story of demand and payment of bribery etc. based on conjectures, surmises and misunderstanding of conversations eavesdropped.

34. It has been further contended that it is a matter of common understanding that bribe is demanded by a public servant or offered by someone when other's throat is in the hand of public servant. It has been contended that Sh. Sanjay Chandra and Ajay Chandra were already in custody and Sh. Ramesh Chandra was on bail. Further, Hon'ble Supreme Court in its order dt. 30.10.2017 (D-30) {Special Leave to Appeal (Crl.) No(s). 5978-5979/2017} granted protection from coercive action and this fact was admitted by LW17 Rakesh Kumar Jaiswal also that on account of the order of Hon'ble Supreme Court he was not able to take coercive measures against accused persons of the cases investigated by him and therefore, it has been contended that once throat of Unitech Ltd. or of its directors and promoters were not in the hands of public servant even if public servants demanded undue advantage, private person would neither offer to pay bribe nor would pay bribe even after demand. Hence, it has been contended that very foundation of the case has been build up against the natural course of bribery world.

35. It has been further contended that none of the witnesses whose statements have been recorded under Section 161 CrPC, have made any inculpatory statements against the accused persons. Barring the testimony of Trap Team Members, most of them are either witnesses to records or have identified the voice of one or other speakers in the intercepted conversations. None has been examined in whose presence alleged incriminating conversations took place so that at least it could be said that the witness is providing first hand information about the context of the conversation. The contexts of conversations have been left to be inferred on assumption.

36. It has been contended that when talk between two persons is eavesdropped the context of conversation as understood by eavesdropper would depend upon his own nature, his education, understanding, prejudices, nature and understanding of the parties in conversation etc. and would require subjective analysis of eavesdropper by his examination in witness box. In the present case there is no one who has heard the conversation on real time basis. LW1 Kumar Abhishek did not say that intercepted calls while being recorded in the computer system were simultaneously being heard by him or by any human agency and incriminating conversations were flagged or marked then there. Thus, his examination in the witness box would not provide the requisite contexts of conversations. Adding to it, it has been submitted that two persons talking in the presence of each other often misunderstands the context of statement of the opponent, hence, it's risky to proceed on the understanding of eavesdropper and that too without there being an opportunity to test his veracity. It has been further contended that same group of words would mean different in different context. Context of conversations are question of facts which can be proved only by leading affirmative evidence which is not available in this case nor shall be made available during the trial.

37. It has been vehemently contended that intercepted recorded conversations can be proved only by one of the speaker whereas in the present case the speakers are accused and accused persons will not step into witness box to depose on behalf of the prosecution. It has been further submitted that witness identifying the voice of the speaker will at best prove only that a particular voice is of a particular person. It has been contended that even if voice of the speakers of the conversation is duly proved the evidentiary value of recorded conversation is only corroborative and it cannot be used as substantive piece of evidence and thus the contention is that in the absence of substantive piece of evidence this corroborative piece of evidence cannot be converted into reliable evidence sufficient enough to call for trial of the accused persons.

38. In support of their contention, Defense Counsels have relied upon case laws mentioned hereinafter.

a) Mahabir Prasad Verma v. Surinder Kaur; (1982) 2 SCC 258 to contend that tape recorded conversation can only be relied upon as corroboration evidence of conversation deposed to by any of the parties to the conversation and in the absence of evidence of any such conversation the tape recorded conversation is indeed no proper evidence and cannot be relied upon.

b) State v. Ravi @ Munna; 2000 Cri.L.J 1125 to contend that recorded conversation can only be proved by one of the parties to the conversation.

c) Devinder Singh v. Central Bureau of Investigation; Criminal Appeal No. 359/2009 (decided by Hon'ble Delhi High Court on 26.03.2014) to contend that recorded conversation cannot be proved unless maker of the record or one of the persons to the conversation steps into the witness box to prove the conversation.

d) Ram Singh & Ors. v. Ram Singh; AIR 1986 SC 3 to contend that to make the recorded conversation admissible, there must not be any disturbance in the recording.

e) Srichand P. Hinduja v. State through CBI; 2005 82 DRJ 494 to contend that evidence collected during investigation must be capable of being converted into evidence as defined under the Indian Evidence Act.

f) State through CBI v. Dr. Anup Kr. Srivastava; (2017) 15 SCC 560 to contend that out of context conversation cannot be used against accused.

g) Bhagwan Swarup v. State of Rajasthan; (1991) 4 CC 514 to contend that conspiracies cannot be proved on the basis of suspicion and surmises.

h) State of Kerala v. P. Sugathan; (2000) 8 SCC 203 to contend that random picked up parts of conversation and bits picked up here and there are not enough to prove criminal conspiracy.

i) Esher Singh v. State of Andhra Pradesh (2004) 11 SCC 585 to contend that essential ingredient of criminal conspiracy is an agreement to commit an offence.

j) Kehar Singh v. State (Delhi Administration); (1988) 3 SCC 609 to contend that concurrence to an criminal act cannot be inferred by a group of irrelevant facts artfully arranged so as to give an appearance of coherence.

k) Leo Roy Frey v. The Superintendent, District Jail Amritsar & Ors.; AIR 1985 SC 119 to contend that offense of conspiracy precedes the commission of crime and is completed before the crimes is attempted or completed.

l) K. R. Purushottam v. State of Kerala; (2005) 12 SCC 631 to contend that unlawful agreement is sine qua non for constituting offence under 120-B of the Penal Code and not an accomplishment; that conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied; that mere knowledge, even discussion of the plan would not per se constitute conspiracy and that offense of conspiracy shall continue till the termination of agreement.

m) P. Vijayan v. State of Kerala; (2010) 2 SCC 398 to contend that if two views are possible and one of them give rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal.

n) N. Vijaykumar v. State of Tamilnadu (2021) 3 SCC 687 ; Suraj Mal v. The State (Delhi Administration) AIR 1979 SC 1408 ; C. M. Girish Babu v. CBI AIR 2009 SC 2022 ; State of Kerala & Anr. v. C. P. Rao (2011) 6 SCC 450 and G. V. Nanjundiah v. State (Delhi Administration) AIR 1987 SC 2402 to contend that mere recovery of tainted money divorced from the circumstances under which it was paid is not sufficient to convict the accused when substantive evidence in the case was not reliable. Mere recovery by itself cannot prove the charge of prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that accused voluntarily accepted the money knowing it to be bribe.

o) B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55 and Kishore Khanchand Wadhwani & Ors. v. State of Maharashtra Writ Petition No. 2925 of 2019; Banarsi Dass v. State of Haryana III (2010) SLT 91; V. Venkata Subbarao v. State of Andhra Pradesh 2007 CriLJ 754 and State (Govt. of NCT of Delhi) v. Girdhari Lal Verma Crl. Appeal No. 90/1999 decided on 30/05/2011 by Hon'ble Delhi High Court to contend that demand is sine qua non to constitute the said offense and mere recovery of currency notes cannot constitute offense under Section 7 of P.C. Act.

p) M.K. Harshan v. State of Kerala I (1996) CCR 218(SC) to contend that in the cases of bribery, two separate aspects are important , firstly there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offense.

q) N. Vijaykumar v. State of Tamilnadu (2021) 3 SCC 687 to contend that mere recovery of tainted money in absence of any proof demand of bribe and acceptance cannot be said to be sufficient to convict the accused.

r) State through CBI v. Dr. Anup Kr. Srivastava (2017) 15 SCC 560 to contend that what constitutes illegal gratification is a question of law; whether on the evidence that crimes has been committed is a question of fact and that if, therefore, the evidence regarding the demand and acceptance of a bribe leaves room for doubt and does not displace wholly, the presumption of innocence, the charge cannot be said to have been established.

s) Subhas Parbat Sonvare v. State of Gujrat (2002) 5 SCC 86 to contend that prosecution has to prove that accused “obtained” valuable thing or pecuniary advantage by illegal means.

t) Standard Chartered Bank v. State of Maharashtra (2016) 6 SCC 62 to contend that there cannot be any vicarious liability unless there is prosecution against company.

u) Sunil Bharti Mittal v. Central Bureau of Investigation (2015) 4 SCC 609 to contend that when a company is accused, directors can be roped in if there is sufficient incriminating evidence against them coupled with criminal intent.

v) Pritam Singh & Ors. v. State of Punjab MANU/SC/0119/1995 to contend that a judge is not to allow his view or observation to take the place of evidence because such view or observation of his could not be tested by cross-examination and the accused would certainly not be in a position to furnish any explanation in regard to the same.

w) Dipakbhai Jagdishchandra Patel v. State of Gujarat & Anr. Crl. Appeal No. 714/2019 decided by Hon'ble Supreme Court on 24.04.2019 and Union of India v. Prafulla Kumar Samal & Anr. AIR 1979 SC 366 to contend that by and large if two views are equally possible and judge is satisfied that evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

x) Sarbans Singh & Ors. v. State of NCT of Delhi 2005 Cri.L.J. 2625 reiterates the principle laid down in UoI v. Prafull Kumar Samal (1979) 3 SCC 4.

y) State of Bihar v. Ramesh Singh AIR 1977 SC 2018 to contend that if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding further.

z) Vikram Johar v. State of UP & Anr. (2019) 4 JT 572 to stress the principle laid down in Union of India v. Prafulla Kumar Samal & Ors. (1979) 3 SCC 4.

aa) Smt. K.L.D. Nagasree v. Government of India & Ors. AIR 2007 AP 102 to contend that intercepted material/conversation cannot be taken into consideration if the order for interception has been made in violation of Sub-section (2) of Section 5 of the Telegraph Act and of Rule 419-A made thereunder.

ab)Ashok Kumar Nayyar v. The State 2007(2) JCC 1489 to contend that at stage of framing charge, Court has to sift evidence and determine whether a grave suspicion about the commission of offense exists on basis of materials.

ac) Dilawar Bahu Kurane v. State of Maharashtra AIR 2002 SC 564 to contend that if there are two versions or two inferences can be reasonably drawn, version favourable to accused has to be accepted by Court as long as it is a reasonable one.

ad)Satpal v. Sh. State of Delhi MANU/DE/0308/2016 to contend that when the public servant is not in a position to extend any undue favour to anyone, then offense under Section 7 of P.C. Act would not be made out.

ae) State v. Sri Balaji Vidyapeeth Deemed University & Ors. MANU/TN/1303/2015 to contend that filing of charge-sheet against some accused by following pick and choose formula is unknown to criminal law, and the prosecution should follow the doctrine of parity otherwise the whole proceedings are illegal and contrary to law.

af) M.C.R. Vyas & Ors v. The Inspector of Police, CBI MANU/TN/3609/2014 to contend that investigation of pick and choose manner amounts to violation of Articles 14 and 21 of the Constitution of India.

ag)Joseph v. Antony & Ors. MANU/KE/2193/2011 to contend that the records and documents produced by prosecution must contain facts from which the court can presume commission of the alleged offense or offenses. Presume means, reasonably presume on the basis of the prosecution records and not on any conjectures or surmises.

ah)Bhagwati v. State MANU/DE/1102/2001 to contend that charges cannot sustain on vague allegation.

ai) State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568 to contend that Section 227 CrPC was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial and that it was calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements.

CONTENTION OF PROSECUTION IN REBUTTAL

39. In rebuttal Sh. Pramod Singh Ld. Counsel for CBI has made this court again go through the facts, material collected during investigation, statements of the witnesses and transcripts of intercepted conversation, to contend that there was a conspiracy between Neeraj Kumar, Neeraj Walia and Director/employee of M/s Unitech Limited to make illegal payment to public servant for functioning improperly and that accused Neeraj Kumar was regularly obtaining undue advantage in the form of illegal gratification from M/s Unitech Ltd. (Seema Manga, Upma Chandra, Ajay Chandra and Ramesh Chandra) through accused Neeraj Walia for improperly and dishonestly performing public duties in the investigation of criminal cases pending in P.S. Saket against Directors/promoters of M/s Unitech Ltd.

40. He has further submitted that there are independent public eye witnesses who have seen accused Neeraj Walia coming out of his car with an envelope in his hand which he subsequently kept in his pant pocket which was partially visible and have seen him moving inside the P.S. Saket and returning after about 15 minutes with no envelope in his pant or hand meaning thereby that he had delivered the same to the accused Neeraj Kumar. Soon after delivery both accused Neeraj Kumar and Neeraj Walia was apprehended. Neeraj Walia was not found with white envelope and SHO Neeraj Kumar got it recovered from his coat and envelope was found containing Rs. 2 lacs. Both accused Neeraj Walia and Neeraj Kumar admitted before the eye witnesses delivery by accused Neeraj Walia and acceptance by accused Neeraj Kumar of envelope containing currency amounting to Rs 2 lacs. Further CCTV footage clearly shows that accused Neeraj Walia entered into police station Saket with white envelope in his pant pocket and when he returned it was not there. The statement of witnesses recorded u/s 161 Cr.P.C clearly reflects that accused persons were making illegal gratification to public servant and accused Neeraj Kumar regularly obtaining undue advantage from the Directors/promoters of Unitech.

41. Ld. PP for CBI has further contended that there were 58 criminal cases registered against promoters and directors of M/s Unitech Limited at P.S. Saket and accused Neeraj Kumar was supervising/chief investigating officer of the ongoing investigation against Directors/promoters of Unitech Limited including Ramesh Chandra, Ajay Chandra, Sanjay Chandra and others at P.S Saket. The conversation between Neeraj Walia and Seema Manga clearly shows that they were in conspiracy and making regular payments to accused Neeraj Kumar with the consent/directions of Upma Chandra, Ramesh Chandra and Ajay Chandra. The undue advantage was given to accused Neeraj Kumar through Neeraj Walia and Seema Manga. LW29 Sh. Pradeep Kumar Thakur (employee of Unitech) stated that on 30.07.2018 he delivered a packet containing illegal gratification sent by Smt. Seema Manga to Neeraj Walia. Recorded conversation proves that Seema Manga had taken approval on 30.07.2018 from Upma Chandra to send illegal gratification to PS Saket and PS Hauz Khas. The whole illegal gratification was given with the directions/consent of accused Upma Chandra, Ramesh Chandra and Ajay Chandra for improper investigation and delay in the investigation of cases pending at P.S. Saket against directors and promoters of M/s Unitech Limited.

42. He has further submitted that during the investigation, the recorded conversation of accused persons were played before witnesses. The voices were identified by the independent persons who were conversant with the voices of respective accused persons. To prove the voices of the accused persons, the investigating officer has taken the specimen voices of accused and sent the same to CFSL for examination with recorded conversation among the accused persons. The CFSL report confirms the voices of the accused persons. IO also collected CDRs of the used mobile numbers from their respective service providers to show exchange of calls, as per recorded telephonic conversations. The recorded telephonic conversation established that there were demand of illegal gratification by the accused Neeraj Kumar and was regularly obtaining undue advantage/illegal gratification from the Directors/Promoters of M/s Unitech through Neeraj Walia and Seema Manga. The incriminating calls were recorded with the necessary permission of the competent authorities, which shows complicity and meeting of mind of all the accused persons with each other in order to hatch criminal conspiracy. It is also not in dispute that the accused Neeraj Kumar was supervising/chief investigating officer of the cases registered against M/s Unitech Limited at P.S. Saket. Accused Neeraj Kumar has deliberately not taken any action on the complaints filed by home buyers against promoters/directors of M/s United Limited which clearly reflected that the accused Neeraj Kumar has performed his official duties improperly. The transcription of the recorded conversation established that accused Neeraj Kumar, Neeraj Walia, Seema Manga were in criminal conspiracy and in pursuance thereof there was regular payment of illegal gratification to accused Neeraj Kumar with the direction/permission of Upma Chandra, Ajay Chandra and Ramesh Chandra. CFSL report also proves that “critical auditory examination, wave from and spectrographic examination of audio recordings contained in exhibit DVD-1 reveal that audio recordings are continuous and no form of tampering detected in the audio recordings.”

43. Ld. PP has further contended that it is settled proposition of law that at the time of framing of charge, the Court has to consider only prima facie case against accused persons for the purpose of framing the charge and need not to go into the merits of the case. He has relied upon the observation of the Apex Court in the case titled as State of Rajasthan v. Ashok Kumar Kashyap in Criminal Appeal no. 407 of 2021 (arising from SLP (criminal) No. 3194 of 2021) wherein it has been held “we are not further entering into the merits of the case and/or merits of the transcript as the same is required to be considered at the time of trial. Defence on merits is not to be considered at the stage of framing of the charge and/or at the stage of discharge application”. He submitted that court is only required to consider the material placed by the prosecution and defense of the accused is not to be considered at the stage of framing of charge/at the stage of discharge application. He submitted that at the stage of framing of charge, the Court is not expected to go deep into the probative value of the material on record. Ld. PP for CBI has relied upon cases named hereinafter.

a) N. Sri Rama Reddy v. V. V. Giri (1971 AIR SC 1162), R.M. Malkani v. State of Maharashtra AIR 1973 SC 157 to contend that recorded conversation is admissible in evidence.

b) Umesh Kumar v. State of AP (2013 SCC) to contend that evidence even if obtained illegally will still be admissible.

c) Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehta (AIR 1975 SC 1788 ) to contend that recorded conversation if proved satisfactorily can be used as substantive evidence and its use is not restricted to corroboration only.

d) Ram Singh & Ors. v. Ram Singh AIR 1986 SC 3 to contend that recorded voice of accused persons can be identified by person who is conversant with the voice of speaker/maker.

e) K. Velusamy v. N. Palanisamy (2011) 11 SCC 275. to contend that the conduct of any party, or of any agent to any party, to any suit, in reference to such suit, or in reference to any fact in issue therein or relevant thereto, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. This submission was with specific reference to contention of defense that post offense act of the parties cannot be taken into consideration.

f) Devendra Kumar v. CBI (WP (Crl.) No. 3247/2018 Delhi High Court) to contend that prior sanction u/s 17A of the is not required in the circumstances of the present case.

g) Assistant Collector of CE v. T.K. Prasad 1991 ECR 297 Madras to contend that investigating agency cannot be compelled to say when it got any information as to the commission of any offense.

h) S. Buddan vs. State by Inspector of Police (Crl. OP No. 13215 of 2016 decided by Hon'ble Madras High Court on 24.06.2016) to contend that police are not required to disclose the source of intelligence as that would lead the accused liquidating the informant.

i) Sheoraj Singh Ahlawat and Ors. v. State of UP (Crl. Appl. No. 1803 of 2012 arising out of SLP (Crl) No. 4649/2010 decided on 9.12.2012) to contend that at the stage of framing charge roving and fishing inquiry is impermissible, that at that stage defense of the accused cannot be put forth and that probative value of the materials on record cannot be gone into as the material brought on record by the prosecution has to be accepted as true at that stage.

j) State of Karnataka v. David Razario & Ors. to contend that recovery at the instance and disclosure of the accused is admissible and said fact can be proved to that extent.

k) Dr. Nallapareddy Sridhar Reddy v. The State of Andhra Pradesh & Ors. (Crl. Appl. No. 1934 of 2019 arising out of SLP (Crl) No. 3884/2019 decided on21.01.2020) to contend that appreciation of evidence is to be done by the court only after the charges have been framed and trial has commenced and for the purpose of framing of charge the court needs to prima facie determine that there exists sufficient material for the commencement of trial.

ANALYSIS & CONCLUSION

44. Charge-sheet, materials relied upon and case laws relied upon by parties perused. Contentions of Ld. PP for CBI and Ld. Defense Counsels for accused persons considered. CCTV footages seen, intercepted calls' conversations heard and transcript thereof perused.

45. While exercising powers under Section 227 of the Code of Criminal Procedure, for considering the question of framing of charge, the Court undoubtedly has power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. If the material placed before the Court discloses grave suspicion about the commission of offense by the accused, then the Court would be fully justified in framing charge and proceeding with the trial. It was noted in the case of Union of India v. Prafull Kumar; 1979 SCC (Criminal) 609 that the Court cannot act merely as a post office or a mouth piece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, but it should not make a roving inquiry into the pros and cons of the matter and weigh the matter as if it is conducting the trial.

46. Hon'ble Supreme Court in Sajan Kumar v. CBI; (9) SCC 368 laid down the principles to be taken into consideration at the stage of charge. It observed that the test to determine the prima facie case would depend upon the facts of each case. Where the material placed before the Court discloses grave suspicion, the Court would be fully justified in framing the charge and proceeding with the trial. Before framing the charge, the court must apply its judicial mind on the material placed on record to satisfy that the commission of offence by the accused was possible. Further, if two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Court would be justified to discharge the accused. At this stage Court is not to see whether the trial would end in conviction or acquittal.

47. In the case of Govind Sakharam Ubhe v. State of Maharashtra, Crl. Appeal No.18 of 2009 decided on 11.06.2009 after considering the various judgments on the point, Hon'ble Bombay High Court summed up the law at the stage of 227 CrPC. It stated that the case has to be set aside after sifting the material collected by the prosecution that there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him. The inquiry must not be directed to find out whether the case will end in conviction. Though roving enquiry is not permissible but the court has to consider whether the material collected if accepted as it is without being subjected to cross examination would give rise to strong and grave presumption about the commission of offence by the accused. However, if the scale as to the guilt and innocence of the accused are found balanced then the court must proceed with framing of charge. There is no question of giving benefit of doubt to the accused at this stage and to discharge him. This can be done only at the conclusion of trial but if two views are possible and the court is satisfied that the evidence gives rise to some suspicion but not grave suspicion it would be well within the right to discharge the accused.

48. Cases relied upon by the parties also more or less laid down the above principles that have to be taken into account at the stage of framing of charge. In the light of these principles, charge-sheet and the materials on record collected by Investigating Agency have to be considered to see if it gives rise to grave suspicion about the commission of offenses by accused persons as alleged against the accused persons.

49. Perusal of the charge-sheet and materials relied upon in the charge- sheet shows that prosecution is heavily relying upon 81 intercepted calls' conversations over mobile/landline phone between accused persons interse, between accused persons and others including witnesses and between others including witnesses and upon recovery of sum of Rs. 2 lacs (alleged bribe amount) from Neeraj Kumar (A-1) almost simultaneously when the said amount was allegedly delivered by Neeraj Walia (A-2) to Neeraj Kumar (A-1), to prove demand of and acceptance of bribe amount, conspiracy to pay bribe etc. Direct oral testimony on the point of conspiracy, demand of bribe, delivery of bribe, acceptance of bribe are missing as shall be noted as proceeded further in this order.

50. It is worthwhile to note that alleged delivery of amount of Rs. 2 lacs by accused Neeraj Walia (A-2) to accused Neeraj Kumar (A-1) and its recovery from accused Neeraj Kumar (A-1) almost simultaneously with delivery, has been painted as bribe amount with the help of intercepted conversations over mobile/landline phone between accused persons interse, between accused persons and others including witnesses and between others including witnesses.

51. If there had not been any intercepted conversations allegedly containing incriminating materials, then the evidence regarding delivery of amount of Rs. 2 lacs (alleged bribe) and its recovery almost soon after the delivery will not even give rise to suspicion of commission of any of the offenses allegedly committed in the present case, not to speak of giving rise to grave suspicion about the commission thereof as it is settled proposition of law that demand of bribe or its acceptance of undue advantage as bribe is sine qua non for the offense of Section 7 of P.C. Act. Mere recovery of amount, even if tainted, will be of no help to prosecution in the absence of evidence for demand or acceptance of undue advantage as bribe. Further, a three judge bench of the Hon'ble Supreme Court in P. Satyanarayan Murthy v. The Distt. Inspector of Police & Anr. (2015) 10 SCC 152 , has held that inferential deduction of demand is impressible in law.

52. None of the trap team members albeit raiding party will be able to prove on their own that alleged amount allegedly delivered by Neeraj Walia to Neeraj Kumar was bribe amount either made pursuant to any demand from Neeraj Kumar (A-1) or was accepted by him as bribe amount from Neeraj Walia (A-2) for improper discharge of his official duties or for forbearing discharge of his official duties.

53. In a sense this is a unique case as there is no complainant from whom demand of bribe was made or in whose presence demand of bribe was made from M/s Unitech Ltd./its directors or in whose presence conspiracy to bribe public servants was hatched and in furtherance thereof amount was paid to public servant or was accepted as such by public servant. No trap with currency treated with phenolaphthalein powder could be laid and as such there was no “red hand” after recovery of currency notes. Presumption of Section 20 of the P.C. Act cannot be invoked as for raising such presumption it has got be proved that public servant had accepted or obtained or attempted to obtain for himself or for any person any undue advantage from any person. Thus, it has got to be shown that amount with which public officer was allegedly found was obtained by him or accepted by him as undue advantage.

54. In the present case the trap (better call it raid) proceedings on its own is not at all sufficient to lead this court or anyone to entertain grave suspicion that amount of Rs. 2 lacs recovered from A-1 Neeraj Kumar, even if delivered by A-2 Neeraj Walia, was undue advantage obtained by him following demand/s from him or was accepted by him as bribe, if the delivery and recovery of amount is not seen in the context of intercepted conversations projected by the prosecution to be incriminating. Thus, the case of the prosecution will take off if the intercepted conversions are inculpatory or fall flat if the intercepted conversations are not exclusively inculpatory. Thus, the intercepted conversation has got to be heard or transcript thereof be read to know if the conversations therein give rise to grave suspicion about the demand of bribe or acceptance of bribe or conspiracy to pay bribe etc. by the accused persons.

55. Ld. PP for CBI while relying upon Dr. Nallapareddy (supra) has vehemently contended that court cannot analyse the transcript of intercepted conversations of the recorded calls as that would amount to appreciation of evidence on merits which is required to be done by the court only after the trial. Of course evidence has got to be appreciated after trial but in the present case if conversations of the intercepted calls is not heard or transcripts are not read, there will be nothing to know the nature of transaction that allegedly took place between accused Neeraj Walia and Neeraj Kumar as mere delivery of money or recovery of money will not give rise to grave suspicion about the commission of offense alleged in the present case. Hence, conversation of intercepted calls have got to be heard or transcript of the intercepted conversations have got to be perused to know if the conversations interse accused persons or between accused persons and cited witnesses or between other persons including witnesses, prima facie show that bribe was demanded by public servant or there was conspiracy to bribe public servant and in pursuance thereof money/bribe was got delivered through Neeraj Walia to Neeraj Kumar who accepted it knowing it be bribe amount.

56. Broadly speaking, there is consensus amongst counsels representing accused persons and Ld. PP that intercepted conversations over phones and subsequently burnt on CDs/DVDs (Mark Q-1 & Q-2) are admissible in evidence provided necessary precaution/rule regarding admissibility and proof of such electronic evidence are taken care of but there is serious disagreement among them so far as legality of source of obtaining such recorded conversation, their evidentiary value and mode of proof are concerned. Defense have argued that illegally obtained private conversations cannot be admitted in evidence whereas prosecution asserts that recorded conversations have not been obtained from tainted sources and alternatively it has been submitted that irrespective of taint in the source such evidence is admissible as courts are concerned with evidences and not with source as "end justifies means".

57. Taint in the source has been pointed out by submitting that interception of various telephonic conversations have been made against the rule laid down for intercepting calls, hence same is liable to be rejected. This Court finds that contention of the Ld. Counsels for defense is liable to be rejected outright because it has come on record that Review Committee has already approved of the order permitting interception of the calls of mobile/landline numbers involved in this case. Once that is so accused persons cannot agitate the said issue again and again. If at all they are aggrieved, they should approach higher Courts for redressal of the same.

58. Though it is true that the reason for which permission to intercept the calls was granted has not been brought on record, nevertheless this court cannot go into it howsoever justified contention may appear that expression "to prevent incitement to offense" must be interpreted ejusdem genris to the expression "for maintaining foreign relation etc." used in section 5 of the Indian Telegraph Act. This Court does not have jurisdiction to declare that approval accorded by Review Committee was against the law for any reason whatsoever.

59. Next point canvassed by all Ld. defense Counsels is to the effect that evidentiary value of recorded conversations, even if satisfactorily proved, is only corroborative and it cannot be used as substantive piece of evidence and thus the contention is that in the absence of substantive piece of evidence this corroborative piece of evidence cannot be converted into substantive evidence sufficient enough to return findings of conviction. Ld. PP for CBI has on the contrary submitted to the effect that recorded conversations are substantive piece of evidence like photographs or real time video-graphs and conviction can solely be rest on such recorded conversation if it passes the test of veracity/genuineness/originality/non-tampering etc.

60. Suffice it to say that looking for corroboration is a rule of prudence and not a rule of evidence. It cannot be laid down as a general rule that if an evidence is not corroborated by other evidence or witnesses then conviction cannot be returned. Conviction can be returned even on the basis of sole testimony of a witness provided his testimony is trustworthy, of impeccable character and unshaken. So far as evidentiary value of intercepted conversations are concerned, no doubt generally such evidence has been used for corroboration but there is no law that in appropriate cases it cannot be used as substantive piece of evidence. No doubt due to volatile character of electronic record that is to say on account of easy accessibility for manipulation or tampering, great caution are taken in acting on such evidence but if same is proved as per law and it is proved beyond doubt that there was no manipulation or tampering at all, same can be acted upon. At the cost of repetition it is asserted that looking for corroboration is a rule of prudence and not a rule of evidence. Once a evidence is admissible Court can act on it. Neither in Indian Evidence Act nor in any other law it has been laid down that such electronic evidence can only be used for corroborative purpose and not for else. This Court find support for its view in the judgement of Ziyauddin (supra) which observed with approval Hon'ble High Court of Bomaby's reliance upon N. Sri Ram Reddy (supra) for the proposition that use of recorded conversation is not confined to purposes of corroboration and contradiction only but can also be used as substantive evidence.

61. It has further been contended by all Ld. Counsels for defense that a recorded conversation can only be proved by one of the speaker participating in the conversation and in the present case all the speakers in the allegedly incriminating recorded conversation are accused persons and accused persons cannot be called as witness on behalf of prosecution to prove the allegedly incriminating recorded conversations, hence it has been contended that alleged incriminating recorded conversations cannot be converted into legally admissible evidence and in the absence of such alleged incriminating recorded conversation, nothing survives on the record to presume commission of crime by the accused persons. Ld. PP for CBI, however, has countered them by arguing that like a handwriting or signature of a person, voice of a person also has distinguishable special characteristic and therefore same can be proved by persons acquainted with the voice/sound of speakers and by the experts. He therefore contended that either of the speakers of the conversations are not required to prove the voices of the speakers of the recorded conversation. Anyone acquainted with the voice can identify the voice of the speaker in the intercepted conversations and thus intercepted recorded conversation are convertible into admissible evidence, even if speakers of the intercepted conversation are accused persons.

62. This court is in agreement with Ld. PP for CBI that intercepted recorded conversations can be proved by anyone who is acquainted with the voice of the speaker and for that purpose it need not be proved only by one of the speaker of recorded conversation. This court is supported in its view by the ruling of the Constitution bench judgment of the Hon'ble Supreme Court in the case titled as Ram Singh & Ors. (supra) wherein it has been laid down that recorded conversation can be proved either by the maker or by the person acquainted with the voice of the speaker.

63. Next contention of Ld. Counsels for defense is that even if intercepted conversations are taken into consideration as it is, it can not be said with certainty that conversation points out to the aspect of conspiracy, demand for bribe, acceptance of bribe, conspiracy to bribe a public servant etc., firstly on the ground that chats have been randomly picked up as they are neither in continuity with respect to time, space or subject nor are in proximity in time or reference nor are they admit of only one meaning and not other. It has been contended that pieces/parts of various/different statements/chats have been picked up and some time a part of the statement/chat have been picked up and has been assigned incriminating meaning either independently or in association or reference to other statement/chats or part of such statement/chat/conversation. It has been further submitted that chats of compromise initiated under the direction of the Hon'ble Supreme Court has also been picked up and part of such chat has been given the color of “given and taken talk” between accused persons. It has been argued that innocuous chat/conversation between two persons may become incriminating if different meaning is assigned or seen in different context. It has been contended that a simple statement "Use yaad dilaya nahi dilaya (did you remind him, didn't you)" or "Kya hua uska (what happened of that)" etc. are susceptible to numerous interpretation in different context. It has been argued that there is no witness either independent of or party to such conversation to give context in which certain words or expressions have been used by speakers of the intercepted conversation and therefore meaning assigned to such statements/words/conversation by the prosecution is not the only meaning applicable to those expressions/words/ statements. It has been contended that conversation of two persons held at one particular day has been connected to conversation of the said two persons or one of them with other person held after sufficiently long gap. It has been contended that prosecution cannot supply the context in which alleged intercepted conversation took place.

64. It has been further contended that intercepted conversation, bereft of context sought to be imputed by the prosecution, is innocuous and context sought to be imputed by prosecution is based on surmises and conjectures and not on the basis of evidence or material on record. It has been contended that if a public servant is heard of demanding money cannot be mistakenly believed of demanding bribe unless the person to whom he is demanding money complains of so or public servant is heard clearly demanding money for doing his official duty or for forbearing official duty in return for that money. In the absence of context merely on the basis of hearing him demand money he cannot be prosecuted. It has been contended that if the conversation either independently or in association with other conversation admits of only one meaning then only such meaning can be accepted but if such is not the case and there is no likelihood of improvement about the inference imputable to such conversation during the trial then such meaning as projected by prosecution cannot be accepted.

65. Ld. PP for CBI has contended that intercepted conversations admit of only one meaning/interpretation that public servant demanded money for improperly performing his official duty and rest other accused persons conspired to bribe the public servant for improperly performing his official duty. He has further argued that all intercepted conversations have to be taken into consideration to arrive at conclusion that such conversations points out to the demand of money and conspiracy to pay such amount and final delivery and acceptance of such bribe amount. He has submitted that perusal or hearing of intercepted conversations would reveal nothing but the demand for bribe, conspiracy to pay bribe and consequent delivery of bribe and acceptance of bribe.

66. As noted above prosecution's case rest heavily on intercepted telephonic conversations between accused persons, between accused persons and others including witnesses and between other persons including witnesses. In all there are 81 intercepted telephonic conversations. Record shows that Secretary, Ministry of Home Affairs had granted permission to intercept telephonic conversation to and from mobile No. 09654332377 (belonging to and used by LW29 Pradeep Kumar Thakur), 09810083093 (used by accused Neeraj Walia), 09818103004 (belonging to and used by accused Seema Manga), 09818420826 (belonging and used by LW8 Lakhbir Chand Sharma) and landline No. 011-28524183 (installed at Tihar Jail in the name of accused Ajay Chandra for his use by the order of Hon'ble Supreme Court to facilitate settlement with home buyers/investors of M/s Unitech Ltd.). Period of interception is from 21.05.2018 to 31.07.2018.

67. Permission to intercept telephonic message was firstly granted in respect of mobile number 09810083093 being used by accused Neeraj Walia w.e.f. 16.05.2018. Nothing has been placed on record to suggest as to what illegal activity Advocate Neeraj Walia was indulging into that necessitated tapping of his phone. Subsequently, permission to tap phones of other aforesaid phone numbers were also granted but nothing has been brought on record to suggest that such permission was granted for developing intelligence and detection of the crime involved in this case or whether they were directed towards other crime and in the process agency got to know of the present crime as well. It is important to note that neither any permission was sought nor any permission was granted to tap the phone of public servant accused Neeraj Kumar which fact strengthen the impression that agency was developing intelligence to detect some other crime and not the present one.

68. This impression also gets strengthen from the fact that Special Unit, DIU, CBI which was tapping the aforesaid phone numbers, is not the informant of the present FIR. There is nothing in law to prevent Head of Special Unit, DIU, CBI to be informant if Special Unit while tapping phone, even if not specifically permitted for detecting present crime, get to know about the offense being committed or being planned, prepared and attempted. In fact Section 149 and 150 CrPC jointly cast a duty upon official to report or take action to prevent crime from taking place. Admittedly, present FIR was registered on the basis of source information and from the charge-sheet and documents relied upon, there is nothing to infer that ACB, CBI or raiding party had knowledge of above phone taping any time prior to 01.08.2018. LW1 Sh. Kumar Abhishek, Dy. S.P., Special Unit, CBI, also in his statement u/s 161 CrPC had not stated that its unit was coordinating with ACB, CBI either in supplying information or in raid anytime prior to 01.08.2018. Thus, Special Unit, CBI was acting independently on the phone tapping for some other purpose and not for this case. Though agency is not required to reveal the identity of secret informer but it must disclose to whom such information was disclosed and who accepted the said information so reliable as to set the criminal law into motion.

69. Another intriguing lapse on the part of investigating agency which has not been explained on its own is the fact that upon secret information present FIR was registered and investigation was marked to LW10 Raman Shukla and a trapping/raiding team was constituted under LW10 Raman Shukla but there is nothing on record to suggest that any of the raiding team member personally knew Neeraj Walia (A-2) by his face or that he was scheduled to come in Honda City car bearing No. DL 3CAK 9507 nor is there anything to suggest that secret informer had accompanied them at the spot. There is nothing on record to suggest that raiding team member had scanned through their eyes each and every person entering P.S. Saket since 8:30 AM to 11:00 AM on 31.07.2018 and accused Neeraj Walia was the only one going inside Police Station with envelope. There is nothing on record to suggest that LW10 Raman Shukla was in touch with Special Unit, CBI keeping track on the movement of A-2 Neeraj Walia on 31.07.2018 on real time basis. How accused Neeraj Walia and his car was identified at the spot is a question which points out towards some concealment on the part of investigating agency. Though the above lapse has nothing to do with present issue under consideration but has been highlighted to bring to the notice of the agency to infuse more professionalism in the investigation otherwise in appropriate case such lapses may prove fatal for the prosecution.

70. As noted above prosecution's case rest on the 81 intercepted conversations. Although transcript of all 81 intercepted calls/conversations (D-22) has been placed on record but part or full conversations of only 30 intercepted calls/conversations have been quoted in the charge-sheet to infer demand of bribe, conspiracy to pay and acceptance of bribe, delivery and acceptance of bribe etc. These calls are File No. 1, 2, 3, 4, 5, 6, 7, 11, 15, 16, 26, 30, 44, 53, 54, 56, 60, 64, 65, 66, 67, 68, 69, 70, 72, 73, 75, 76, 78 and 80. Out of these 30 calls, four calls i.e. File No. 75, 76, 78 and 80 are of post trap/raid. For the sake of convenience the intercepted calls referred to in the charge-sheet as “File No.” has been correspondingly referred to as “Call No.” in this order.

71. From conversations in Calls No. 1, 2, and 15 between accused Neeraj Walia and accused Seema Manga, IO/prosecution has drawn inference that accused Neeraj Walia had been in touch with accused Seema Manga in the matter of “regular payment of illegal gratification to P.S. Hauz Khas and P.S. Saket”. Call No.1 is of 21.05.2018 at 13:43:24, Call No.2 is of 22.05.2018 at 15:55:50 and call No. 15 is of 25.06.2018 at 12:14:28. Thus, it is seen that third call is almost after one month. Perusal of intercepted calls show that conversations in Call No.4 and Call No.6 are also between accused Neeraj Walia and accused Seema Manga and took place on 01.06.2018 at 11:12:25 and at 17:14:05 respectively. Call No. 4 and 6 are closure in proximity in terms of time to the calls No. 1 and 2 but Call No. 15 have been taken into consideration by IO/prosecution to infer certain meaning.

72. In Call No.1 accused Seema Manga is heard saying that she would try but as errand boy Pradeep was hospitalised so she was wondering how she would send and then on suggestion from accused Neeraj Walia she had agreed to send next morning. Now if green goggle is worn, pasture on the other side would look green but if red or yellow goggle is worn, pasture on the other side would look different. In this conversation there is nothing to infer that accused Seema Manga was making effort to send money to accused Neeraj Walia. But if reliable context is provided by someone who was directly or indirectly party to the conversation then such conversation may be inferred to have taken place either with respect to money, file, documents, goods, etc. depending upon the context in which such conversation took place. So the conversation of call No.1 is susceptible to many inferences.

73. In Call No. 2 which is almost after 28 hours of the Call No.1, accused Seema Manga is heard enquiring residence of accused Neeraj Walia and is heard saying that she would be sending one Daljeet to his residence. The conversation in Call No.2 is in continuation of call No.1 which in the absence of appropriate context is susceptible to many inferences.

74. In Call No. 4 which is of 01.06.2018 at 11:12:25, accused Neeraj Kumar is heard reminding accused Seema Manga “saket wale ka iss month to reh hi gaya” (person belonging to Saket remained left for this month) to which accused Seema Manga is heard asking that he (Neeraj) should have reminded her and accused Neeraj Walia is heard saying that he had done so while reminding Hauz Khas and that (at that time) she had said that she would do Saket later and then Seema Manga is heard saying that she would be trying to get sent that day.

75. In Call No.6 which is of 01.06.2018 at 17:14:05 accused Neeraj Walia is heard asking accused Seema Manga if there was any scope to which she is heard saying that she would send next day as she was arranging and would be sending positively next day. In call No.15 which is of 25.06.2018 at 12:14:28 accused Neeraj Walia is heard saying “Madam wo iss month ka wo Hauz Khas aur Saket ka rehta hai” (Madam that's of Hauz Khas and Saket remain left for this month) on which accused Seema Manga is heard saying that she then had nothing as it was getting tough to which accused Neeraj Walia heard saying that “get it done one by one”. Accused Seema Manga then asked for sometime and assured that she would do as and when it became possible for her.

76. From the conversations of Call No. 1, 2 and 15 it cannot be said that both were in touch in connection with “irregular payments to P.S. Hauz Khas and P.S. Saket”. Though Call No. 4, 6 and 15 seems to be on same subject but even from the conversation of these calls it cannot be said both were in touch in connection with “irregular payments to P.S. Hauz Khas and P.S. Saket”. In common parlance the terms “Hauz Khas” and “Saket” do not only mean P.S. Hauz Khas and P.S. Saket. Even if it is assumed that conversation in Call No. 4, 6, and 15 are relating to payments it is difficult to connect it only to P.S. Hauz Khas and P.S. Saket. Merely because accused Neeraj Walia was by profession Advocate, therefore, terms “Hauz Khas” and “Saket” would not always mean “P.S. Hauz Khas” and “P.S. Saket”. Further, merely because accused Neeraj Walia was also in talk with accused Neeraj Kumar, the then SHO of P.S. Saket and Sanjay Sharma, Inspector of P. S. Hauz Khas, it cannot be assumed that the terms “Hauz Khas” and “Saket” meant “P.S. Hauz Khas” and “P.S. Saket” in call No. 4, 6 and 15. This is more so when all the calls/conversations to and from mobile phone of accused Neeraj Walia is not before the court. CDR of mobile phone No. 09810083093 being used by accused Neeraj Walia shows that numerous calls have been made and received between 01.06.2018 to 25.06.2018 and nothing has been brought on record to rule out the possibility that terms “Hauz Khas” or “Saket” or “alleged apparent talks of payment” in call No. 4, 6, and 15 do not relate to any of those calls/conversations so as to justify inference of the IO/prosecution.

77. Thus, it is seen that IO/prosecution on the basis of Calls No. 1, 2 and 15 have concluded that conversation shows that accused Neeraj Walia was in touch with accused Seema Manga in the matter of regular illegal payments to P.S. Hauz Khas and P.S. Saket but it is not possible to agree with such inference as it has been seen above that call No. 1 and 2 are independent of Call No. 15 both in terms of context and in proximity of time. Call No. 4, 6 and 15 do appear to be in same context but it is far fetched to independently connect with alleged “regular illegal payments to P.S. Hauz Khas and P.S. Saket”.

78. IO/prosecution has next quoted partly Call No. 26 of 27.06.2018 at 17:04:56 between accused Ramesh Chandra and accused Seema Manga to show that accused Ramesh Chandra, Director of M/s Unitech Ltd. had directed Seema Manga to deliver “undue advantage/illegal gratification of Rs 2. Lakhs to Sh. Neeraj Kumar, SHO, Saket”.

79. In Call No. 26 accused Seema Manga is heard informing accused Ramesh Chandra that Amit had come and gave 2.5 and a cheque of 10 of Service Apartment. She is further heard saying that she was filling the cheque and would get deposited. She is further heard saying that out of 2.5. she was sending two of Saket and fifty to Ma'am. She is further heard saying that they had more for their own use and she was sending them that day. Nowhere accused Ramesh Chandra is heard directing and that too “to deliver amount to SHO PS Saket”. In this call he was being informed only. Moreover, how IO/prosecution inferring “2” as “Rs. 2 lakhs” is beyond comprehension. Depending upon the scale of business such terms in the context of amount may mean “2 hundred” or “2 thousand” or “2 Lakhs” or “2 Crores”. But for restricting meaning to “hundred” or “thousand” or “lakh” or “crore” some more information is required otherwise it will remain a pure guess work only. It appears that since in the raid investigating agency had allegedly recovered Rs. 2 lakhs from SHO, Saket that they have started connecting terms in the recordings (which obviously came in their knowledge and possession after raid) “2” with “Rs. 2 lakhs” and “Saket” with SHO, Saket. But independent of context (for which there is no evidence or witness) it is unlikely to connect the term “2” with “Rs. 2 lakhs” and “Saket” to “SHO Saket”.

80. Let Call No.26 be examined in the background of call No.15 and in association with Call No. 27, 28, 29, 30, and 32 to appreciate if any of them either alone or in association with each other enable sole inference about payment of gratification to accused Neeraj Kumar, the then SHO Saket.

81. Call No. 27 and Call No. 28 are of 27.06.2018 at 17:06:27 and at 17:36:53 respectively and are between accused Seema Manga and office boy Pradeep Kumar Thakur (LW29). In call No. 27 accused Seema Manga is heard calling Pradeep immediately to office for some very important work. In Call No. 28 accused Seema Manga is heard lovingly chiding Pradeep for leaving office early.

82. Call No. 29 is of 27.06.2018 at 17:39:26 between accused Seema Manga and Pradeep Kumar (LW29) on the one hand and accused Neeraj Walia on the other. In this call Pradeep is heard asking Neeraj Walia as to where he would find him (Neeraj Walia) then, to which accused Neeraj Walia informed him that he was in Patiala House and would meet him there but then he (Neeraj) suggested him to give it at his residence or leave in his residence. Then, Pradeep is heard saying to Neeraj that if he (Neeraj) would become free then he (Pradeep) would discuss a call as there was some problem to which Neeraj agreed.

83. Call No. 30 is of 27.06.2018 at 19:27:39 between accused Neeraj Walia and accused Seema Manga. In this conversation accused Seema Manga is heard saying that she had fulfilled her promise and then she was inquiring if he had received full news. Accused Neeraj appears to be wondering about news then she is heard saying that she had sent Pradeep that day whose visit accused Neeraj confirms while asking how much was there in the envelope to which she said two. Accused Neeraj is then heard sinking with “2” and accused Seema Manga is heard saying that she had sent first concerning two and if she had sent for another one then she would not have had sufficient to make '2' whereas accused Neeraj on the other side was listening her in agreement. Then accused Seema Manga is heard saying that she decided firstly to do the two and then she would do for the other and would do the other to which accused Neeraj agrees. Accused Seema Manga then is heard saying that she had fulfilled her promise while asking accused Neeraj Walia to look after it and how much time he would give her for other and further promising that she would do the other in a day or two.

84. Call No. 32 is of 28.06.2018 at 18:29:15 between accused Neeraj Walia and accused Neeraj Kumar. In this conversation there is general conversation in which accused Neeraj Kumar is asking Neeraj Walia about his illness to which he responded that he had joined then Neeraj Walia is heard asking Neeraj Kumar if he was out of Delhi to which he informed that he was in Gangtok and would be returning on 30 and would be joining his duties on 2nd July and then Neeraj Walia is heard saying that he would meet him on 2nd then they talk about Gangtok, its climate etc.

85. From Call No. 32 it appears that accused Neeraj Walia knew that accused Neeraj Kumar was out of Delhi but was assuming that he would have returned by then. This call was made by accused Neeraj Kumar to Neeraj Walia. If the conversations in calls No. 26, 27, 28, 29 and 30 jointly constitute conversation regarding delivery of amount of two lakhs for SHO Saket, then upon receipt of amount from Seema Manga through Pradeep, accused Neeraj Walia would have given call to accused Neeraj Kumar confirming about his having received money or at least asking Neeraj Kumar about his availability next day so that amount could be delivered. But here accused Neeraj Walia did not give call either on 27.06.2018 or on 28.06.2018. If at all said money was meant for accused Neeraj Kumar and if there was delay in payment (as is sought to be inferred so from the conversations) and if Neeraj Kumar was after Neeraj Walia for the payments, then there was nothing which prevented Neeraj Walia from making call to Neeraj Kumar if not on 27.06.2018 then at least on 28.06.2018 and directly/indirectly informing him about the receipt of bribe money from M/s Unitech Ltd. or its directors or Seema Manga.

86. Thus, even after taking holistic view of the conversation in Calls No. 4, 6, 15, 26, 27, 28, 29, 30 and 32 and even if it is taken that conversations in Calls No. 4, 6, 15, 26, 27, 28, 29 and 30 were about payment of money, it is far fetched to prima facie conclude that said talks about payment meant “payment to SHO, Saket”. Calls No. 32 completely stands alone from the Calls No. 4, 6, 15, 26, 27, 28, 29 and 30. Call No. 32 also shows that there was old and long relationship between accused Neeraj Kumar and Neeraj Walia because accused Neeraj Kumar is heard calling Neeraj Walia as he was getting bore because other members of his family were sleeping after returning from visit to Nathula Pass. In time of boredom one often likes to talk to his close one.

87. IO/prosecution has further relied upon Call No. 44 to show that accused Ajay Chandra had advised his wife Upma Chandra to talk to SHO. Call No. 44 is of 03.07.2018 at 17:46:45 between accused Ajay Chandra and accused Upma Chandra. In this conversation accused Upma Chandra is heard saying Dad had phoned her informing that Jaiswal had sent message to him that next day there were 6 or 7 case and had called him for investigation. On this accused Ajay Chandra is heard asking his wife to talk to Jaiswal informing him that they would get done over the weekend and if it so urgent then he would come to Gurgaon. Then accused Upma Chandra is heard saying that she would tell him to come that side and that he had told him that he would on his own go to his office for seven days. Accused Ajay Chandra is then heard okaying and accused Upma Chandra is heard saying how he (Jaiswal) told that, to which Ajay is heard okaying to talk to him and if she knew then she must talk to SHO as well and if he did not agree then same was okay. Then phone gets disconnected but accused Upma Chandra is still heard venting out her frustration/anger like “isse bhi baat kar lo usse bhi baat kar lo (talk to him talk to that)”.

88. Context of this conversation has to be understood in the light of what LW17 Rakesh Kumar Jaiswal (Inspector) has to say in his statement under Section 161 CrPC. In his statement LW17 Rakesh Kumar Jaiswal interalia had stated that he was entrusted with investigation of 29 case and enquiry of about 85 complaints registered against M/s Unitech Ltd. and its Directors/promoters. He had stated that he used to speak to officials of M/s Unitech Ltd. regarding the documents required during investigation and regarding the service of summons and joining investigation in the case by the accused persons. He further stated that one employee of Unitech namely Lakhbir Chand Sharma (LW8) mostly used to coordinate with him as also reflected in the recorded conversation in the cases investigated by him. He further stated that since he could not take any coercive action against the Directors of M/s Unitech Ltd. due to the orders of Hon'ble Supreme Court even though they were named accused in different cases so he had to repeatedly request the Directors/Promoters through Lakhbir Chand Sharma to join investigation.

89. Thus, on account of restrain order of the Hon'ble Supreme Court LW17 Sh. Jaiswal was finding it difficult to take coercive action against the Directors/Promoters of Unitech and as such he was requesting them to join investigation and it was in this background it can be seen that Ajay Chandra or his wife Upma Chandra were heard to be discussing that Mr. Jaiswal be known that they would make Ramesh Chandra join investigation over the weekend or that he would come to Gurgaon or Upma Chandra should talk to SHO regarding time and place of joining investigation by Ramesh Chandra. Thus, it is difficult to agree with IO/prosecution about the inference drawn by them from Call No.44. Even if it is not so but conversation of Call No. 44 certainly does not admit of only one meaning that accused Upma Chandra was advised to manage SHO because if inference of IO/prosecution from Call No. 4, 6, 15, 26, 27, 28, 29, 30 and 32 are accepted then SHO Saket was already managed then where was the need for accused Ajay Chandra to advise accused Upma Chandra on 03.07.2018 to talk to SHO. Further, talking to SHO of itself is not an offense nor is there any legal bar that relative of accused persons cannot talk to SHO of the area where FIR against the relative has been registered.

90. IO/prosecution has further relied upon conversation in Call No. 56 of 28.07.201 at 13:50:11 between accused Seema Manga and accused Neeraj Walia to show that accused Seema Manga had promised to send money/illegal gratification on 30.07.2018 to accused Neeraj Walia. In this conversation accused Seema Manga is heard saying to Neeraj Walia that she would be sending on Monday and Neeraj Walia is heard saying they were after his life to which accused Seema Manga is heard saying that she knew it and that she would be getting it sent on Monday, she did not have and she would get sent on Monday. It cannot be said with certainty that she was talking about money but even if it is accepted that she was talking about money there is nothing to conclude that she was talking about “illegal gratification”, particularly when accused Neeraj Walia was getting Rs. 3 lacs per month (on an average) from M/s Unitech Ltd. for his professional and consultancy charges which was being paid from M/s QNS Facility Management Pvt. Ltd., a subsidiary of M/s Unitech Ltd.

91. IO/prosecution has further relied upon part conversation in Call No. 60 of 28.07.2018 at 15:58:10 between accused Ajay Chandra and accused Upma Chandra to show that in pursuance of criminal conspiracy they had agreed to make transaction of illegal gratification. This call is of almost 3 min 27 sec. In this conversation Ajay Chandra is heard asking number of someone so that he would co-ordinate with him directly. A little later than half of the conversation Upma Chandra gives him a mobile number which is 999977XX74 (to conceal identity full number has not been revealed here). It is not the case of the prosecution that this number 999977XX74 belong to accused Neeraj Kumar or was being used by Neeraj Kumar or of any of the person who in his turn was in touch with accused Neeraj Kumar.

92. In response to asking of a number by accused Ajay Chandra, accused Upma Chandra is heard saying that she would give the number and she informed that he (probably whose number was being asked) wanted ...(not clearly audible) together on Monday and to which she had said yes. On this Ajay Chandra asked if he would close, to which Upma Chandra is heard saying that that man had said that Deepak Bajaj had already offered.......(not clearly audible) focus to that ground. Then there is exchange of words wherein Upma Chandra is heard informing Ajay Chandra that he (that man) would not close until he (that man) would get something and he (that man) wanted more money whereas Ajay Chandra is heard saying that no money would be given to him till he closes. Upma Chandra is also heard saying that he had conveyed to Chhabra about double the money to which Ajay Chandra conveyed let them but he had to close, upon which Upma Chandra asked if he (Ajay) could talk to him. Ajay Chandra responded by asking her to ask him to talk to him (Ajay). Upma Chandra informed that he would not be having his (Ajay) number and asked him (Ajay) to call him. Ajay Chandra agreed to call him right then but also expressed his (Ajay) intent that he (Ajay) would not give him anything till he did not close it or agreed to close. Then Ajay continued that he had to close it otherwise what he was paying for. Upma Chandra then stated to him if he (Ajay) wanted to close without giving any “land” to him to which he said why would he.. because it was an equity fund. Upma Chandra then asked why did Deepak offer to which Ajay Chandra explained that that was separate and that he did not offer. Then after further discussion Upma Chandra gave him aforesaid number to him. Ajay Chandra is further heard demanding that he had to close that. He is further heard saying that he would not be giving any money without closing and that he was not running a charity to which accused Upma Chandra is heard asking him to send at least half on Monday. He said in affirmative and then went on to say that he would say him that through Mohit on Monday or Tuesday. Ajay Chandra is again heard saying that if he (Mohit) could not come on Monday then he would come on Tuesday. He is further heard saying that let him write the letter first that he had to close it. Then he is heard saying “whether he offers doesn't offer, settle, doesn't settle with that”. He is further heard saying that he had to send a letter and then they would reply. Upma Chandra informed him that he had said that he would give it to Mohit on Monday and talks end with accused Ajay Chandra saying that he would speak to him then.

93. In this conversation name of Deepak Bajaj has appeared twice. Deepak Bajaj has been cited as LW13 by prosecution. He was HR Head and Chief Financial Officer in M/s Unitech Ltd. He in his statement under Section 161 CrPC interalia stated that he had gone through the transcription of the conversations containing the voice of Ramesh Chandra, Ajay Chandra, Upma Chandra, Mrs Seema Manga, Mr. Neeraj Walia, Mr. Lakhbir Chand Sharma, Pradeep Kumar Thakur and other persons. He had listened to said conversations played on official computer. On being asked about the contents and the matter in the conversations heard by him that day he stated that it was pertaining to the regular payments of settlement amount to the flat owners and other complainants.

94. From the conversation in Call No. 60 it is clear that Ajay Chandra had been insisting that he (that other man) had to close before he (Ajay) would give him any money. Then there is reference of one Chhabra to whom that other had been conveyed double the money. Upma Chandra sought clarification if he (Ajay Chandra) wanted to close it without giving him any land. Then there is use of term equity fund. Then in the last Ajay Chandra want him write a letter first that he had to close it, then he would reply. Then he wonders whether he would offer, would not offer, would settle or wouldn't settle. If this conversation between husband and wife was not about settlement with home buyers or investor then term “land” or “Equity Fund” or “Write letter first” or “offer, doesn't offer” or “settle, doesn't settle” would not have occurred. Ajay Chandra was insisting for giving in writing that he would close the case. For illegal gratification a police officer will never give in writing that he would close the case and thus, prima facie it seems that both husband and wife were talking about something else and not about illegal gratification as was understood by the IO/prosecution.

95. Further CDR (D-29) of landline phone of Ajay Chandra bearing No. 011-28524183 shows that he had called at mobile No. 999977XX74 at 16.08.56 on 28.07.2018 immediately after his talk with his wife Upma Chandra and had conversed with said person for about 128 seconds. There is nothing on record to suggest that Neeraj Kumar or Rakesh Jaiswal was connected with mobile phone number 999977XX74 which obviously was the mobile number of the person about whom accused Ajay Chandra and Upma Chandra were discussing with each other. Further landline telephone of accused Ajay Chandra bearing No. 011-28524183 was also under tapping and there was nothing which prevented the agency or Special Unit to place the said conversation on record to rule out any possibility of this talk (call No. 60) not being the talk for illegal gratification. In any case aforesaid conversation prima facie does not show to be an agreement between Ajay Chandra and Upma Chandra in pursuance to criminal conspiracy to make transaction of gratification/undue advantage. Various terms/words like “land”, “equity” “settlement” etc. used in the conversation as well as statement of LW13 Deepak Bajaj about the context of conversation open up way for inferring more meaning of the conversation than the one sought to be put forth by IO/prosecution.

96. IO/prosecution then has relied upon conversation in calls No. 3, 4, 5, 6, 7, 11, 53, 54 and 64 to show that accused Neeraj Kumar, Neeraj Walia and Ms. Seema Manga were in criminal conspiracy and in pursuance thereof there was regular payment of illegal gratification to accused Neeraj Kumar, SHO PS Saket. It is worthwhile to note that call No. 4 and 6 have already been analysed with reference to and in association with other calls such as Call No. 15, 26, 27, 28, 29, 30 and 32. Although call No. 4 and 6 should not be analyzed again with other calls once that has been done with Call No. 15, 26, 27, 28, 29, 30 and 32 nevertheless they will be examined here along with Calls No. 3, 5, 7, 11, 53, 54 and 64 to find out if there were criminal conspiracy and if in pursuance whereof there were illegal payments.

97. Call No. 3 is of 28.05.2018 at 20:35:52 between accused Neeraj Walia and accused Neeraj Kumar wherein apart from other usual talk between them as known person, accused Neeraj Kumar is heard asking Neeraj Walia if he had reminded him/her to which accused Neeraj Walia responded affirmatively adding further that that other had said for that evening. Accused Neeraj Walia then is heard saying that he too had said and he had had a talk that very morning and that other would get it sent by that evening. Accused Neeraj Walia further stated that he had not received phone again and he would be calling again. Accused Neeraj Walia then added that his minion who lived in Sangam Vihar and who is from account, if coming that way would be delivering in the night.

98. Call No. 4 which is of 01.06.2018 at 11:12:25, has already been discussed above wherein accused Neeraj Walia is heard reminding accused Seema Manga about “person belonging to Saket remained left for this month”. Call No. 6 which is of 01.06.2018 at 17:14:05 has also been discussed above wherein accused Seema Manga is heard saying on asking of accused Neeraj Walia that she would be sending next day as she was arranging and she would get sent next day.

99. Call No. 7 is of 02.06.2018 at 11:05:19 between accused Neeraj Walia and accused Neeraj Kumar where after usual chat accused Neeraj Kumar is heard asking as to what happened to that, to which accused Neeraj Walia is heard saying that he had had a talk in the evening of the day before and that other had said for that day. He is again heard saying that he had a talk in the evening and that other had said for that day. The accused Neeraj Walia is heard explaining that that other had said for next day evening and that he had called him/her and Madam had started saying/informing that she would be sending that day and that she could not talk the day before and would send next day. Then accused Neeraj Kumar is heard saying that he was on medical rest due to twisting of his leg and therefore he would talk and would ask him to take medical rest or something. Then accused Neeraj Walia is heard saying that he (Kumar) need not worry he (Walia) would do on his own.

100. Call No.11 is of 13:06.2018 at 13:17:13 between Neeraj Walia and Neeraj Kumar wherein apart from usual talk accused Neeraj Kumar is heard saying that he would go out of Delhi from 23 to 30, to which accused Neeraj Walia is heard saying “lets do it before that”. Then accused Neeraj Kumar is heard saying that he would leave on 22 and he (other person) be asked do it early, to which accused Neeraj Walia is heard saying that he also meant the same and he would be on this work since that day only. Accused Neeraj Kumar is then heard agreeing to that while requesting that he (Neeraj Walia) should talk to him (other person) once.

101. Call No. 53 is of 25.07.2018 at 11:12:42 between accused Seema Manga and accused Neeraj Walia wherein accused Neeraj Walia is heard conveying that those two others were angry and further clarified by saying Saket and Hauz Khas, to which accused Seema Manga is heard saying that she would return to office next day and would do something to get the same done and explained her inability to pick up phone.

102. Call No. 54 is of 25.07.2018 at 11:59:40 between accused Neeraj Walia and Neeraj Kumar wherein after usual greeting accused Neeraj Kumar is heard complaining that he had given call to him (Neeraj Walia) but he had not picked up the call, to which accused Neeraj Walia is heard denying any call having come from him. Upon hearing denial from Neeraj Walia, accused Neeraj Kumar expressed surprise saying that else he did not need (to call him), to which accused Neeraj Walia admitted non-obligation of Neeraj Kumar to call him (Walia) but stressed that he did not receive any call from him (Kumar). Then after few usual talk accused Neeraj Kumar is heard asking about that other and if he (Walia) had told him (other person), to which accused Neeraj Walia is heard saying that he had had a talk that morning and that other had told for day after that day. He further added that he had had a talk with Madam just 30-45 minutes before that call.

103. Call No. 64 is of 28.07.2018 at 17:31:16 between Neeraj Walia and Neeraj Kumar where he is heard asking Neeraj Walia if he was coming to him (Kumar), to which Neeraj Walia is heard saying that he had to come but there had been delay and was now for Monday and that he would come on Monday.

104. Call No. 3 is of 28.05.2018, call No.4, 5 and 6 is of 01.06.2018, call No. 7 is of 02.06.2018 whereas call No. 11 is of 13.06.2018. Even if these calls on account of proximity is considered as part of conversation on the same subject between three persons but it is difficult to connect these parts of conversation with the subject of conversation held after 45 days of the last talk as call No. 53 and 54 are of 25.07.2018 and Call No. 64 is of 28.07.2018. It would have been possible to prima facie conclude that conversations of all the above 9 calls were on same subject only if conversations of all the calls held between 28.05.2018 to 28.07.2018 to and from the mobile numbers used by accused Seema Manga and accused Neeraj Walia had been provided and analysis thereof would not have admitted of any relation or reference to any other subject other than the one sought to be inferred. CDR of mobile phone numbers of accused Seema Manga and Neeraj Walia shows hundreds of call to and from each of these mobile numbers between 28.05.2018 to 28.07.2018 but conversations of those calls have not been provided.

105. It is accepted that culprits often talk in guarded language or sometime use code language, nevertheless a particular meaning cannot be assigned to a conversation on the basis of assumption or surmises or conjectures. Some material is required to understand the guarded language. In the present case, the conversation between accused Seema Manga and accused Neeraj Walia on the one hand and conversation between accused Neeraj Walia and Neeraj Kumar on the other cannot be simply connected to each other only because accused Neeraj Walia was handling cases of M/s Unitech Ltd. and accused Neeraj Kumar was the SHO of Saket Police Station where number of complaints against M/s Unitech Ltd. and its directors were pending investigation. Though this fact gives ground for suspicion (only if one's mind is fed with a inculpatory context) but to have firm view one needs material to rule out the possibility of these conversations (between accused Seema Manga and accused Neeraj Walia on the one hand and between accused Neeraj Kumar and Neeraj Walia on the other) being independent of each other. This rule out could have been possible if all the conversations to and from mobile phone numbers of accused Seema Manga and accused Neeraj Walia had been placed on record. It has to be kept in mind that initial burden is upon prosecution to convince the court that such conversations were part of same subject and indicate conclusively about payment of illegal gratification, turn of the accused persons will come much later.

106. It has been contended by Ld. PP for CBI that in Call No. 54 there was reference to a Madam in voice of accused Neeraj Walia and said Madam was none other than Seema Manga of Call No. 53 with whom accused Neeraj Walia had talked on the same day in the morning as in call No. 54 he had also stated that he had had a talk with Madam just 30-45 minutes before the said call. It has to be borne in mind that in criminal law charge has got be proved beyond reasonable doubt. Contention of Ld PP for CBI would have had weight if it had been shown that in the morning of that day accused Neeraj Walia had had a talk with only one lady i.e. Seema Manga. Perusal of CDR of mobile number 9810083093 of accused Neeraj Walia of 25.07.2018 shows that he had made first call on 11:23:14 (which is call No. 53), then had made call at 11:29:14 to another number, then had received call at 11:31:20 from another number, then had made call at 11:33:16 to another number, then had received call at 11:36:13, again at 11:45:02, again at 11:49:22 from different numbers and then received the call No. 54 from accused Neeraj Kumar. There is nothing on record to suggest that the persons on other side in the all the calls to and from mobile number of Neeraj Walia, between the calls at 11:23:14 and 12:01:13 were not of a lady or were only males. Accused Neeraj Walia had made a call at 11:29:14 i.e. six minutes after the call No. 53 but there is nothing on record to suggest that the person on opposite side was not the lady. Hence, the call No. 53 and 54 could have been connected to each other on the basis of use of expression “had had talked with Madam just 30-45 minutes before the said call” in call No. 54, if and only if there had been something to rule out the possibility that the speaker on other side of the calls to and from mobile number of accused between the call No. 53 and 54 had not been of a lady.

107. IO/prosecution then has relied upon part conversation of call No. 65 to show that accused Seema Manga in her turn had contacted Smt. Upma Chandra @ Munmun w/o Ajay Chandra, Director of M/s Unitech Ltd. about the aforesaid demand (concluded by IO from calls No. 3, 4, 5, 6, 7, 11, 53, 54 and 64) made by public servant for the payment of undue advantage/illegal gratification through accused Neeraj Walia and obtained her permission in this regard and in response accused Upma Chandra directed her for making the payment of such undue advantage/illegal gratification as revealed from the conversation.

108. Call No. 65 is of 30.07.2018 at 13:05:23 between accused Upma Chandra and accused Seema Manga. Hearing of this conversation does show that talk of payment to some person from Saket and Hauz Khas, were being made and there appears confusion among them with respect to payment for the month having been made to person from Hauz Khas and there seems to be agreement that Neeraj would be able to tell about that. How do terms “Saket” and “Hauz Khas” be co- related/connected with terms “P.S. Saket” and “P.S Hauz Khas” respectively Simply because Neeraj Walia had been in touch with the then SHO of P.S Saket and Inspector Sanjay Sharma from P.S. Hauz Khas, would then terms “Hauz Khas” and “Saket” used in conversation in Call No. 65 mean “P.S. Saket” or “P.S. Hauz Khas” only This Court prima facie finds it difficult to accept this meaning only of the said terms.

109. IO/prosecution has further relied upon part/full conversation in Call No. 66, 67, 68, 69 and 70 to show that on 30.07.2018 accused Seema Manga in connivance with other accused person sent the bribe amount for accused Neeraj Kumar through an employee of M/s Unitech Ltd. namely Pradeep Kumar.

110. Call No. 66 which is of 30.07.2018 at 13:10:06 between accused Seema Manga and Pradeep Kumar wherein accused Seema Manga is heard ensuring attending of office by Pradeep Kumar next day and that she would be telling him some work for that day hence he would meet her before leaving the office that day.

111. Call No. 67 is of 30.07.2018 at about 13:34:06 between accused Seema Manga and accused Neeraj Walia wherein accused Seema Manga is heard informing Neeraj Walia that she would be sending Pradeep that day whereafter accused Neeraj Walia is heard requesting her to get done both as both were after him. Then accused Seema Manga is heard saying - “Dono ke to abhi, Ek baat bataana ye dusre wala jo chhota wala tha jo jiska seventy five jata hai, ye avi humne starting time diya hi nahi tha” (Both now, just tell one thing - the other one which is small one whose goes seventy five, have not we given him/her at starting time). Accused Neeraj Walia is then heard explaining – “wo pichhle ka hisaab delay chal raha tha” (that last account was going delay), to which accused Seema Manga asked him to check once. Accused Neeraj Walia responded that he had done and had already checked, to which accused Seema Manga asked if both had to be given that month. Accused Neeraj confirmed and then said that last time also it had happened on 30 or 31 to which she is heard asking if she should send of both and upon being requested so she is heard saying that she would be sending that day.

112. Call No. 68 is of 30:07:2018 at 15:25:24 between accused Seema Manga and accused Upma Chandra wherein Upma Chandra is heard looking for one Paul as she had to urgently have talk with him. Then discussed some network issue in connecting to Paul. Then Upma Chandra is heard saying that one Rajeshwari was constantly after her and had been nagging her and is further heard confirming that they give one or something to Rajeshwari and that her was pending. Accused Seema Manga seemingly confirmed but said that Ajay Chandra would be knowing. Then accused Upma Chandra is heard saying that she had asked Ajay and he had said he would see and would see but she had been haunting her too much and then she suggested that she (Rajeshwari) be given one on account instead and finish it off. Then accused Seema Manga is heard saying that she had recently given her fifty and she had also given her before that, to which Upma Chandra asked about her account and how much she (Rajeshwari) was entitled to. Upon this accused Seema Manga is heard saying that about said account/entitlement only Ajay Chandra would tell and added further that she (Rajeshwari) was telling about approximately 7.5, though that was 8 but since she (Seema) gave her (Rajeshwari) fifty so 7.5 was left. Upma Chandra sought to confirm fifty more given on that day to which accused Seema Manga explained that fifty was given past week. Upma Chandra then is heard saying- “Ok, it was given last week only and she is after me saying she has to go somewhere, requesting me to give her two or one and she has been after me every day. She has been demanding separately from you and separately from me.” Accused Seema Manga is then heard explaining that she (Rajeshwari) had been asking about the same thing and she (Seema) was unable to pick/attend more calls there in the office but she (Seema) gave her after long time and hence she would be hurt. Then Upma is heard saying that she (Rajeshwari) had to go somewhere and she needed one or two. Accused Seema Manga is then heard saying that she would talk to Mr. Chandra who would tell as to what would have to be done of her account. Upma Chandra is then heard directing Seema to ask Ajay Chandra about her dues and how same was to be cleared, to which Seema is heard saying that she had to do that in small or big and had to finish and that whenever she would have time she would regularly do something to finish/clear. Further talk continues on the number which seemingly due and needed for getting it over it by fixing a number.

113. From their talks it appears that one Rajeshwari had done some work for sample flat and then accused Seema is heard asking Upma if she was going to meet to which she denied saying that she was about factory.... and cutting her in the middle accused Seema Manga is then heard - “Ok, I'll see for today and if find appropriate time I will talk or else you talk and then let me know and tell me about this”. Upma Chandra okayed it whereafter accused Seema Manga is then heard saying - “Well, one about which I was asking in the morning, she was calling me, about whom Saket was taken”. Upma Chandra then directed her (Seema) to send two pastries to one Seema was talking about. Seema then acquiesces saying two had to go. Then Seema is heard saying cutting Upma in the start of the sentence that they were telling her that they (Unitech) were going/running in the month end., to which Upma Chandra is heard confirming that she (Seema) had been giving first pastry at the beginning of the month, to which Seema is heard saying that he was saying that it was of last due and asked her to check. Upma Chandra is then heard saying that Hauz Khas was always on track, then accused Seema Manga is heard saying that she had asked them to check but he denied saying it were of both. On this accused Upma Chandra is heard saying - “Mai aise bataa rahi hun Hauz Khas humesha right track par tha, baaki thik hai but aage se fir humko thoda iska dekhna hi padega. Aapko to pataa hai ek bari issase bhi wapis to pure nahi aaye the, yaad hai na aapko, hume to ye pataa nahi ki kya le jaye” (well I was telling, Hauz Khas was always on right track, rest alright but henceforth we will have to see it, you know that once even he did not return completely, you remember, don't you. We, well, don't know what he will take). To this accused Seema Okayed and then accused Upma Chandra said that she (Upma) would talk to Ajay but asked her also to ask him from her own end and she (Upma) was forwarding him message. Then Seema opined that it would appear that every one was after him for one thing which would not go well. Then Upma Chandra is heard saying that she already asked him once and it would be better if she (Seema) would ask him again. On this accused Seema Manga said that she had already asked him. Then accused Upma is heard saying - “you had already asked but she needs it and she is really haunting me with weird messages”. Then Seema Manga agreed to ask him and then there are two-three more sentences which is not relevant here.

114. This whole conversation starts with dues of and demands from one Rajeshwari and ends with it. There is abrupt discussion about pastry and Hauz Khas but they are certainly not with respect to regular illegal payments to P.S Hauz Khas or P.S. Saket become clear from a sentence from accused Upma Chandra wherein she is heard saying - “... ek bari issase bhi wapis to pure nahi aaye the,...”. Certainly, this sentence goes against the case of the prosecution because if it was meant to be a regular illegal payments to “P.S. Hauz Khas” or “P.S. Saket” as claimed by prosecution then there would be no occasion for return of the same. Said sentence of Upma Chandra has introduced serious element of doubts in the projected meaning to the conversation Hence, even suspiciously it cannot be said that terms “pastry” and direction for its delivery meant to be conversation for confirming illegal payments to P.S. Saket and P.S. Hauz Khas..

115. Call No. 69 is of 30.07.2018 at 17:36:08 between accused Neeraj Walia and Pradeep and call No. 70 is of 30.07.2018 at 17:43:53 between Deepak Mishra and Pradeep Kumar. Joint analysis of conversation in these two calls shows that Pradeep had gone to the house of accused Neeraj Walia to deliver a packet containing money. Pradeep has been cited as LW29 and he in his statement did state that he used to be sent for delivering documents, file, money etc. to accused Neeraj Walia by his office Unitech Ltd. But he did not know for what purpose money used to be got delivered by him to Neeraj Walia nor was he aware about the value of amount delivered by him in the packet/envelope to accused Neeraj Kumar on 30.07.2018. During investigation he was not confronted with envelop which was allegedly recovered from accused Neeraj Kumar on 31.07.2018 so as to find out if he could identify the said envelope to establish that said very envelop which he delivered stately with currency at the residence of the accused Neeraj Walia was in fact delivered by accused Neeraj Walia to accused Neeraj Kumar allegedly with same or different currency.

116. Thus, it can be seen that one sentence in the conversation in Call No. 68 coming from the mouth of accused Upma Chandra as noted above seriously militates against the propounded meaning attached by IO/prosecution to the conversations of call No. 66, 67, 68, 69 and 70.

117. IO/prosecution has further put reliance upon Call No. 72 and 73 between accused Neeraj Walia and accused Neeraj Kumar to show that it revealed that accused Neeraj Walia and accused Neeraj Kumar were caught after transaction of bribe amount of Rs. 2 lakhs on 31.07.2018 in the manner recorded in the recovery memo and in the charge-sheet.

118. Call No. 72 and Call No. 73 are of 31.07.2018 at 10:36:00 and at 11:30:27 respectively between accused Neeraj Walia and Neeraj Kumar. In call No. 72 accused Neeraj Walia is heard asking from Neeraj Kumar if he was available in his chamber at police station and upon being confirmed about availability accused Neeraj Walia informed him the he was coming to P.S. Saket in next 15/20 minutes to meet him. In call No. 73 accused Neeraj Kumar is heard asking accused Neeraj Walia about the time by which he would come to P.S. as he had to go to attend a meeting with joint CP at Kamla Nehru and accused Neeraj Walia is heard responding that he had already arrived. Conversation in call No. 72 and 73 only shows that both accused Neeraj Walia and accused Neeraj Kumar met each other in the chamber of accused Neeraj Kumar at P.S. Saket.

119. IO/prosecution has further relied upon part/full conversation in calls No. 75, 76, 78, and 80 to show that the information of arrest of accused Neeraj Kumar and Neeraj Walia, reached other accused persons namely Ramesh Chandra, Ajay Chandra, Seema Manga and others, they discussed the issue over phone and their conversation got recorded which shows that accused persons namely Seema Manga, Ramesh Chandra, after coming to know about the FIR and the name of Unitech in the said FIR conspired to hide Mr. Pradeep Kumar Thakur, their employee, who had delivered the bribe amount to accused Neeraj Walia, Advocate and instructed him to switch off his phone number and disappear and thus their subsequent acts revealed their involvement in the matter of delivery of illegal gratification to the accused Neeraj Kumar, the SHO P.S. Saket.

120. Call No. 75 is of 31.07.2018 at 15:49:34 between one Mohit (LW4) and Seema Manga wherein accused Seema Manga is heard frenetically asking Mohit to send Pradip quickly as “iska koi na badi bhashad hone wali hai” (His some big mess up is to take place.) to which Mohit is heard confirming about sending Pradeep immediately.

121. Call No. 76 is 31.07.2018 at 16:17:50 between accused Ramesh Chandra and Seema Manga wherein accused Seema Manga is heard asking Ramesh Chandra if he had become free from meeting and upon being informed in negative and upon being asked, she is further heard informing Ramesh Chandra that something important had come and that (her) Sir would probably call him through Skype call and then she asked if talk had already taken place. Ramesh Chandra is then heard saying that he had done from jail and that she should do one thing. To which Seema Manga is heard saying that she had already done that and that she had been doing that. Then Ramesh Chandra is heard asking Seema Manga as to who had gone to deliver. Seema Manga is then heard replying that she had sent him and that she had been removing this/him from there. Then Ramesh Chandra is heard saying that the one who had been done, the one who had been sent be asked to disappear completely.

122. Call No. 78 is of 31.07.2018 at 17:37:33 between accused Seema Manga and LW23 Renu Gupta where Renu Gupta is heard asking Seema Manga if she had moved out of office to which Seema replied in negative and then Renu is heard saying that 18 had come, to which Seema Manga responded that she (Renu) had already informed that earlier and asked her (Renu) to check as there was some difference in currency of small/large denomination in one. On this Renu replied that she had checked whole and that there was a pack of 2 lakh, to which Seema Manga agreed in affirmative. Then Renu is heard saying that there was pack of 2 lakhs meant 5 lakhs of two thousand denomination. On this Seema Manga is heard saying that talk be not continued on phone and that whatever was there she would understand later on, to which Renu is heard saying that 18 had come and if she asked her she could send her confirmation as to what all that had. On this Seema Manga pleaded that she be not sent anything and then Renu is heard saying that there was 18 then because three people were sending at that time.

123. Call No. 80 of 31.07.2018 at 18:27:17 between one Pawan, accused Seema Manga and LW29 Pradeep wherein accused Seema Manga is heard asking Pawan if Pradeep had reached there and then Pradeep talked to accused Seema Manga. Accused Seema Manga is heard asking him that he should stay there and there only he be told what he had to do and that he should not go to his house and that he should go to house of his friend or something. He is further told that next morning he should come to office directly, keep his phone switched off and should keep his phone elsewhere. Pradeep is heard asking if had to come to office or had to go elsewhere to which Seema Manga informed that he had to come to him and sit with him in his office next morning and he had not to go anywhere and if he went then there would be trouble for him. He consented in affirmative and then Seema Manga is heard telling him that they were in trouble but he should not worry as they all were in trouble.

124. Sr. Advocate Ms. Rebecca M. John relying upon Leo Roy Frey (supra) had contended that conversation in post trap calls cannot be taken into consideration for the offense of conspiracy as offense of conspiracy precedes the offense conspired, hence post trap acts of the accused are not admissible evidence whereas Ld. PP for CBI had contended that such conversations are admissible and relevant under Section 10 of the Evidence Act. Without going into the question whether such conversation would be admissible and relevant or not, it will be worthwhile to appreciate if the conversations in the calls give prima facie impression that persons in conversation were indulging in putting their crimes under carpet. Before proceeding further, it must be kept in mind that none of the accused persons have been alleged to have committed offense under Section 201 IPC. Moot question then is - do the conversation in above calls either alone or in association with conversation in other calls show that their act as reflected from the conversation in calls No. 75, 76, 78 and 80 were exclusively in consonance and in line with their alleged act of conspiring to bribe the public servant and of bribing the public servants or fulfilling the demand of bribery having been made by a public servant

125. It has already been noted above that conversations in other calls relied upon by IO/prosecution for the incrimination of the accused persons, are susceptible to various interpretation that is to say they do not admit of exclusive inference sought to be drawn by IO/prosecution and if seen in that context then acts reflected from the conversation in calls No. 75, 76, 78 and 80 is not of much help to the prosecution. Further, conversation in call No. 78 between Seema Manga and Ms. Renu (LW23) about Rs. 18 lacs and other, does not appear to be relevant as it is not the case of the prosecution that Rs. 18 lakh which was sent to Ms. Renu, an employee of H.B. Leasing & Finance, was meant for the purpose of delivering the same to the public servant as part of bribe amount nor is the case of the prosecution that said amount was obtained from Ms. Renu (LW23) or Sh. Lalit Bhasin (PW22) the Chairman of H. B. Leasing & Finance for paying the bribe money nor statement of Renu and her employer Sh. Lalit Bhasin incriminate the accused persons for the purpose of crime alleged in the present case. Thus, there is nothing incriminating in conversation in Call No. 78 between Ms. Seema Manga and Ms. Renu.

126. No doubt conversation in calls No. 76 and 80 do show that an attempt was made on the part of the Ms. Seema Manga and Ramesh Chandra to get Pradeep underground for some time but in the statement of Pradeep under Section 161 CrPC, he interalia stated that on 31.07.2018 at about 5:45 PM while he was in the office, he received a message that Ms Seema Manga had called him and asked to leave the office immediately informing him that a case had been registered against him and officials of Unitech Ltd. He further stated that she asked him to visit office of Sh. Vishal Gosain, Advocate located at Defense Colony, New Delhi and when he was in the office of Vishal Gosain, she called him again and asked him not to visit office, to switch off his phone and to hide himself till further direction. Thereafter, he left Delhi and went to Haridwar where he lost his mobile phone and returned on 09.08.2018 on foot with “Kanwad”. He had not contacted anyone due to fear and visited office only on 09.08.2018 and enquired about the case whereupon he came to know that he had been summoned by CBI and he joined investigation and gave his specimen sample voice.

127. Admittedly, nothing was found against Pradeep (LW29) to show that he was involved in the crime. IO has cited him as witness. It is not the case of IO/prosecution that substantial evidence or information got lost on account of he having been hidden from CBI for a month. Admittedly and he and Ms. Seema Manga are an employee of Unitech Ltd. None of them had any personal interest in protecting its director or involving themselves in crime for their masters. It is not the case of IO/prosecution that Ms. Seema Manga was having a share in bribe money that is to say while acting as middleman she used to take more money from Unitech/Chandra's in the name of public servant and used to pass on less amount to Public Servant after retaining a cut for herself. So, obviously when they had no personal interest it was quite natural for them to panic upon having come to know that a case has been registered where they have also been made accused that too when they were not aware of the allegation till then. Further, why only Pradeep was asked to hide and leave. There is no attempt on the part of Ms. Seema Manga to hide herself nor has anything been brought on record to suggest that Ramesh Chandra or Ms Upma Chandra were making any attempt to hide. Ajay Chandra was already in custody.

128. Attention of this Court has gone to Call No. 74 which is of 31.07.2018 at 15:46:03 between accused Seema Manga and Vishal Gosain, Advocate who is representing accused Ramesh Chandra and Ajay Chandra in the present case. This call was made by Vishal Gosain to Seema Manga and this call was way before Calls No. 75, 76, 78 and 80. In this Call Vishal Gosain is heard asking about Chandra Saheb to which Seema Manga informed him that Chandra Saheb had gone in meeting and was not in office and then she asked if Chandra Saheb was not picking up the call. Then Mr Gosain is heard asking her to stay alert as some unfortunate incident had happened and staying alert was advisable and further advised her not to talk with anyone on phone, to which she okayed. Then Mr Gosain is further heard asking her if she had come to know about one SHO at Saket, to which she sounded very ignorant and then she sought to know what happened. Mr Gosain is then heard informing her that SHO of the Police Station had been arrested by CBI to which she reacted very calmly by saying only “O” and then he informed that the one who had been arrested along with him is one Neeraj Walia and then both sounded about which Neeraj Walia he had talked about and she had understood. In any case her reaction about his arrest was also very calm saying “Oh”. Then Mr Gosain informed that in the said case name of Unitech had surfaced and allegedly some cash was recovered from there and upon which she said she got it and then talks end with Mr Gosain saying that he would be talking to Chandra Saheb.

129. Thus, the conversation in this call shows that Chandra and other were put on alert as a case was registered by CBI and a SHO along with Neeraj Walia had been arrested and name of Unitech was surfacing. Though it is not clear whether Mr Gosain himself was aware of the nature of offense allegedly committed by SHO and Neeraj Walia which led to their arrest but he put Seema Manga and Chandra Saheb on alert as name of Unitech was surfacing and some cash was allegedly recovered. Certainly, it is not the case of prosecution that Mr. Gosain knew about Unitech and its official were indulging in illegal payment to public servant and therefore he informed them to be on alert. Admittedly, number of complaints/FIR against Unitech and its Directors were pending and therefore another case with CBI against them would have made him (Mr. Gosain) to alert them, particularly with directors Ajay Chandra and Sanjay Chandra already in custody.

130. Therefore, they appear to be making frantic enquiry about the payments till then made to Neeraj Walia (Walia Associates) as apparent from Call No. 77 of 31.07.2018 at 17:02:48 between unknown and accused Seema Manga. Further, conversation in call No. 79 which is of 31.07.2018 at 18:12:48 between accused Seema Manga and Vishal Gosain shows that Seema Manga was making enquiry if Pradeep had reached him to which he showed ignorance about Pradeep and then she asked him if everything was alright and if there would be any trouble in the said matter. Mr Gosain is heard informing her that he had been reading news in Twitter where something about the same was coming but he would be in a position to tell about it and how to proceed further, only after complete news. Then he informed that first he would see the FIR and then only he would be able to advise as to how to proceed and in any case that would be in accordance with law. Then she asked if her name was also involved to which Mr Gosain is heard saying that he did not know much till then and he did not have anything and once he received documents he would be able to tell.

131. How one behaves, when advised by his Counsel to be on alert following registration of a case involving his/her name but not knowing the actual allegation, depends upon the nature of the person. There is nothing on record to suggest that other accused persons namely Ramesh Chandra, Seema Manga and others had become aware of entire facts leading to raid and arrest of Neeraj Kumar and Neeraj Walia. No newspaper cutting or Twitter or media coverage has been collected to show that other accused persons by 3:45 PM or by evening of 31.07.2018 had become aware of the circumstances leading to raid and arrest of accused Neeraj Kumar and Neeraj Walia. Seen in this context post trap acts of other accused persons cannot completely connect itself to the offense. There is no evidence to the effect that Chandra's or official of Unitech Ltd. instigated Pradeep not to admit before CBI about the delivery of money at the residence of Neeraj Walia in the evening of 30.07.2018. They only asked him to remain away for sometime but they did not ask him to misguide the investigation or tell lie. In any case their post trap conduct will not necessarily leads to only one conclusion that they were involved in the present crime alleged against them. The post trap acts are relevant but only for corroborating the enactment of crime, if otherwise enactment of crime by the accused has been prima facie stands established. If two persons happen to be first persons to land at a crime scene unaware of crime and upon noticing theft/murder or other said sort of crime, one shouts at other to run away and both start running out of the crime scene and are caught or seen by others running away, said fact may make them suspect but said fact alone will not be sufficient to hold that they were perpetrators of the crime. Thus, the post rap acts of accused do raise suspicion about some involvement nevertheless they are not grave enough particularly when conversations in other calls as discussed above are susceptible to various meanings.

132. Attention of this court has also gone to conversation in Call No. 61 which is of 28.07.2018 at 16:04:45 between accused Ajay Chandra and Inspector Rakesh Kumar Jaiswal wherein accused Ajay Chandra is heard asking Mr Jaiswal as to what was the matter of Jagmohan to which Insp. Jaiswal said he had two villas which was repeated by Ajay Chandra. Then Insp Jaiswal confirmed the same by saying yes and further stated that he (Jagmohan) had two flats (also). He further informed him that all four were complete and out of 600 villas in his (Ajay) project Nirvana Country 50, people were living in 598 villas, only two villa which belong to (Jagmohan) were not occupied. He further informed that work of renovation of small degree were pending in these two villas, interrupting Ajay Chandra sought clarification if he (Jagmohan) had four properties with him which was confirmed by Insp. Jaiswal. Then accused Ajay Chandra asked him what then was dispute about. Insp. Jaiswal then informed that renovation was not being undertaken and therefore Jagmohan had got a case registered and said case was going to Monitoring Committee. Insp. Jaiswal then said that he (Jaiswal) had informed him (Jagmohan) that he (Jaiswal) would get him possession because only renovation was left. Accused Ajay Chandra then said that he would get inquired as he (Jagmohan) may not be making the payment or there would be some balance, to which Insp. Jaiswal informed him that all payments had been made and as per him there might be balance of 2 or 3 lakhs which was required to be paid at the time of delivery of possession. Then Ajay Chandra informed him that he had spoken to Mohit and Mohit would meet him (Jaiswal). He then further added that there was no need for Mohit to meet him for Jagmohan as he (Mohit) had otherwise also understood that and he (Jaiswal) could inform him (Mohit) after talking with Jagmohan. Insp. Jaiswal then said that he had already informed Mohit and had also talked to Deepak Bajaj, to which Ajay Chandra said that Deepak Bajaj did not look after said matter. Ajay Chandra then asked Jaiswal if Mohit should talk to Jagmohan, then Insp Jaiswal suggested that Mohit could come to him and he would make both Jagmohan and Mohit talk to each other face to face. On this Ajay Chandra said that first they had to understood about identification of the two flats, to which Insp. Jaiswal said that's what he meant. Then Ajay Chandra said that Mohit would come after that. On this Insp. Jaiswal said that he would get them meet then to which Ajay Chandra said first he (Mohit) would understand and then would come after doing homework, Insp. Jaiswal agreed and then suggested that alternatively Mohit should come to him and he would show him the entire file lying with him and if need arose he would talk to him (Jagmohan) that a person from company had come to him and make him (Jagmohan) talk to man from company or otherwise as he (Ajay) would wish and if he (Ajay) would like to talk directly he (Jaiswal) would send him phone number, to which Ajay said that talk would be through him (Jaiswal) only. Similarly, conversations in Calls No.57, 58, 62 and 63 also relates to effort regarding understanding issue involved, settlement with flat buyers/owners/complainants etc.

133. Prosecution has relied upon intercepted conversations between accused persons, between accused persons and witnesses and between other persons and from those conversations it has been sought to be proved that there was demand for illegal gratification, conspiracy to pay bribe, acceptance of bribe etc. From the hearing of conversations it is clear that there is neither any clear cut demand for money nor is there clear cut acceptance of bribe nor is there clear cut conspiracy to bribe a public servant or fulfill the demand of public servants. The intercepted conversations have sought to be interpreted in a particular way so as to suit the case of the prosecution or investigation agency but such interpretation can be accepted only if those conversations prima facie admit of only one interpretation and none other. The time period of the intercepted conversations is from 21.05.2018 to 31.07.2018 and involves thousands of calls to and from the mobiles/landline phones under interception and involves different speakers including accused persons, witnesses and others but only part and/or full conversations of 81 calls have been used to form incriminating conversations (which otherwise prima facie do not admit of various interpretation) without laying before the court all the conversations to enable court to agree or disagree with incriminating conclusion drawn by IO/prosecution. Meaning of a conversation depends upon the context particularly when word or expression susceptible to various interpretation is used. There is no witness or evidence which could supply context in which such intercepted conversations were taking place.

134. It is worthwhile to note that public servant accused Neeraj Kumar has never talked to accused Seema Manga, Ramesh Chandra, Ajay Chandra and Ajay Chandra. He was only in conversation with accused Neeraj Walia. Neeraj Walia was not in conversation (at least on phone) with accused Ramesh Chandra, Upma Chandra and Ajay Chandra. He was only in touch with accused Seema Manga and sometime with Pradeep (LW29). Ajay Chandra was in custody with landline facility as provided following the order of the Hon'ble Supreme Court already noted above. Out of 30 calls' conversations quoted in the charge-sheet, some conversations as noted above are not at all inculpatory, some conversations admits of various meaning/interpretation and some do give show dubious meaning favouring prosecution but looked from the perspective of a neutral and prudent person, the conversations do not prima facie make out that conversations were with respect to demand of bribe, conspiracy to bribe and acceptance of bribe etc. Hence, intercepted conversations of 81 Calls prima facie do not give rise to grave suspicion about demand for gratification or acceptance of gratification by public servants or conspiracy to pay gratification to public servant by private persons and payment in pursuance thereof.

135. It is made clear that conversations in intercepted calls are in Hindi and transcripts thereof is also in Hindi, this Court, however, noted the concerned conversations in English mostly in indirect speech translating them in English as nearly as possible in apparent meaning of the words/sentences used therein.

136. Prosecution case next rests upon alleged recovery of bribe amount from accused Neeraj Kumar. There is direct evidence regarding a envelope containing Rs. 2 lakhs having been recovered from blazer/coat of accused Neeraj Kumar at his instance but the fact that this envelope containing Rs. 2 lacs was delivered by accused Neeraj Walia and that the envelope containing Rs 2 lacs had originated from M/s Unitech Ltd., are sought to be proved by circumstantial evidences. Hence, it has got to be seen if the chain of events are so complete as to prima facie draw no other probability other than that envelope containing Rs 2 lacs originated from Seema Manga on behalf of Unitech and its directors and reached accused Neeraj Walia who in his turn delivered the said envelope containing Rs. 2 lacs to accused Neeraj Kumar.

137. From the conversations in Call No. 69 & 70 and from the statement of LW29 Pradeep Kumar Thakur, there is evidence that Pradeep delivered a packet containing money at the residence of accused Neeraj Walia but there is no evidence to whom it was delivered at his residence and whether that person at the residence of the Neeraj Walia delivered the packet to accused Neeraj Walia before the alleged delivery by him to accused Neeraj Kumar on 31.07.2018. Further, there is no evidence as to how much money was there in the envelope as Pradeep (LW29) did not know the volume of money in the envelope.

138. There is eye witnesses (trap team members) to the effect that they had seen accused Neeraj Walia coming out of his car with white envelope in his hand which he subsequently kept in his pocket and moved inside P.S. Saket. There is eye witness to the effect that after about 15 minutes accused Neeraj Walia came out of the P.S. Saket and there was no envelope with him which fact prima facie does show that he left the envelope inside the P.S. Saket. CCTV footages show that accused Neeraj Walia entered the P.S. Saket and went straight to chamber of SHO and through chamber of SHO to retiring room attached to chamber of SHO. Accused Neeraj Kumar had moved into the retiring room a few minutes before accused Neeraj Walia came in. After about 13/14 minutes, accused Neeraj Walia along with Neeraj Kumar is seen coming out of the retiring room and then goes out of the chamber of SHO. After about one minutes or so accused Neeraj Kumar is also seen going out of his chamber. Thus CCTV footage corroborates that accused Neeraj Walia with envelope in his pant pocket went straightway into the retiring room of the SHO attached with his chamber.

139. There is prima facie evidence to the effect that accused Neeraj Kumar got recovered an envelope containing Rs. 2 lakhs from his coat/blazer lying in the Almirah in the retiring room of the SHO. But there is no evidence that retiring room was searched thoroughly and only one envelope was found from the retiring room of the SHO. Had only one envelope been found in the retiring room of the SHO, then certainly it would have led the court to prima facie conclude that accused Neeraj Walia had delivered the envelope containing Rs. 2 lacs as accused Neeraj Walia was seen going inside the retiring room with envelope in pant pocket and coming out without envelope. With no other envelope having been found in the retiring room of the SHO, certainly it could have been said that the envelope which was recovered from the blazer/coat of SHO was delivered by accused Neeraj Walia. But once there is no evidence that retiring room was searched thoroughly, prima facie it cannot be held that the white envelope containing Rs. 2 lacs recovered from the blazer of the accused was delivered by accused Neeraj Walia and was accepted by accused Neeraj Kumar.

140. Thus, two important linking facts are missing to complete the chain of events so as to draw no other inference than that the said envelope containing Rs. 2 lacs had originated from Seema Manga in the manner as alleged by IO/prosecution and accused Neeraj Walia had delivered the said envelope to accused Neeraj Kumar. Although by way of further investigation it can be found out to whom envelope was delivered at the residence of accused Neeraj Walia and whether or not said person had delivered the same to Neeraj Walia anytime before the alleged trap but the possibility of non-availability of another envelope in the retiring room of the SHO cannot be ruled out even by directing further investigation. Therefore, even recovery of Rs 2 lacs from accused Neeraj Kumar does not prima facie give rise to grave suspicion about the commission of offense because of lack of evidence as discussed above. Though prima facie there are sufficient material to show that an envelope containing an amount of Rs 2 lacs was recovered from the blazer/coat of accused Neeraj Kumar at his instance but there is no evidence that said envelope containing Rs. 2 lacs was delivered by none other than accused Neeraj Walia.

141. Next important evidence is the statements of the witnesses recorded by IO under Section 161 CrPC. It has got to be perused to find out if their statements prima facie give rise to grave suspicion about the commission of offense by the accused persons. In all IO/Prosecution has cited 43 witnesses but statements of only 29 witnesses have been recorded under 161 CrPC.

142. LW1 Sh. Kumar Abhishek in his statement seeks to prove the recording of conversations of 81 intercepted calls, transferring of those conversations on CD mark Q1 and preparing of copy CD mark Q-2 and that there was no tampering or that there was no possibility of tampering. He had also issued necessary certificate under Section 65B of the Evidence Act. From his statement it is revealed that he was not listening to the conversations of 81 intercepted calls simultaneously when they were taking place nor is he the one who segregated/chosen/selected the conversations of the 81 calls out of hundreds (as apparent from CDRs) of calls to and from the mobile/landline phone numbers under interception. Thus, evidence is missing as to the person who heard these conversations simultaneously on real time basis or heard the recorded conversation subsequently and selected/segregated the relevant ones from hundreds of recorded conversations.

143. LW2 Sh. Ashok Kumar, LW3 Sh. Harender Singh Malik and LW 10 Sh. Raman Shukla TLO seek to prove the trap/raid following which recovery of Rs 2 lakhs from the blazer/coat of accused Neeraj Kumar at his instance, was made followed by arrest of accused Neeraj Walia and Neeraj Kumar. LW4 Mohit Pahwa identified the voice of accused Ramesh Chandra, Ajay Chandra, Upma Chandra, Seema Manga, Pradeep Kumar Thakur (LW29), his own voice and that of Vishal Gosain, Advocate (representing accused Ramesh Chandra and Ajay Chandra in the present case) in the relevant recorded conversations.

144. LW5 Sh. Rishi Dev, DGM- Secretarial and Company Secretary of M/s Unitech Ltd. in his statement seeks to prove Memorandum of Association, Article of Association, Certificate of Registrar of Companies, name of directors of Unitech Ltd., documents relating to QNS Facility Management Pvt. Ltd., a subsidiary of Unitech Ltd. and from which payments were being made to Walia Associates of accused Neeraj Walia as he was on the panel of Unitech Ltd. He seeks to prove the profile of Ajay Chandra to prove that Ajay Chandra was looking after the work of construction, settlements with flat buyer and police cases and administration work. He also identified voices of Seema Manga, Ramesh Chandra and Ajay Chandra in recorded conversations.

145. LW6 Sunil Kumar in his statement seek to prove the orders of Secretary/Joint Secretary of Union Home Ministry, Government of India, regarding tapping of mobile/landline of phone numbers of accused Neeraj Walia, Seema Manga, Pradeep Thakur, Lakhbir Singh and Ajay Chandra.

146. LW7 Saurabh Agarwal, LW18 Wasim Mohammad, PW19 Surender Kumar, LW25 Kamal Kumar and LW26 Pawan Singh are Nodal Officers of various Telecom Service providers and they will prove the Consumer Application Forms (CAF), Call Details Record (CDR), documents furnished for KYC purpose, of various mobile phone numbers including that of accused persons and others.

147. LW8 Sh. Lakhbir Chand Sharma Manager of Unitech Ltd. in his statement seeks to prove that he was in regular discussions, conversations and used to take orders/approvals/instructions in the matter of cases registered against M/s Unitech and its directors/promoters for which he was co-coordinating with Investigating Officers. He also identified the voices of accused Ramesh Chandra, Ajay Chandra, Upma Chandra, Seema Manga, Neeraj Walia, Pradeep Kumar, of himself and other officials of Unitech Ltd. in the recorded conversation. About the content and matter of conversation heard by him from the recorded conversation he stated that same were pertaining to the regular payments of about Rs. 2.5 lacs being made to Sh. Neeraj Kumar, SHO, P.S. Saket and Sh. Sanjay Sharma, Inspector, P.S. Hauz Khas for going slow and not investigating the cases properly. He further stated that as far as he knew payments were made to them through Seema Manga who was very close to the directors/owners of M/s Unitech Ltd. His version of the context of the conversation heard by him is his opinion and not based on his personal knowledge of the category of witness who is required to have first hand knowledge from his own senses.

148. LW9 Sh. Deepak Mishra, a friend of Pradeep Kumar Thakur (LW29) in his statement admits of his conversation with Pradeep Kumar Thakur on 30.07.2018 wherein Pradeep informs him that he was coming to him soon after delivering money. He had identified his voice and that of Pradeep in his conversation with him recorded in Call No. 70.

149. LW11 Sh. Amit Sharma had identified the voices of Ramesh Chandra, Seema Manga. LW12 Sh. Navin Jain had stated that he was working with M/s Unitech Ltd. as Company Secretary and identified his own signature on the authorisation letter to Mohit Pahwa (LW4) for submitting documents to CBI and that such documents bore his signatures. Such documents relates to M/s QNS Facility Management, a 100% subsidiary company of M/s Unitech Ltd., He further stated that consultancy and professional charges to M/s Walia Associates to the tune of Rs 16 lacs as per Ledger Accounts for the period 01.04.2017 to 30.09.2018 enclosed with the letter of authorisation but he was not able to tell why or for what purpose the said payments were made to M/s Walia Associates. He did not know Neeraj Walia nor has the knowledge of the person who had signed the said Ledger Account. It is worthwhile to note here only that investigation revealed that accused Neeraj Walia, an advocate by profession, was a consultant with M/s Unitech Ltd. and was getting regular payments in his firm M/s Walia Associates from M/s QNS Facility Management, subsidiary of M/s Unitech Ltd., on an average of Rs. 3 Lakhs per month. It was further revealed that accused Neeraj Walia was looking after the complaints and cases registered in P.S. Saket and P.S. Hauz Khas and other trial cases (against M/s Unitech Ltd.) in the District Courts. Accused Neeraj Walia's alleged incriminating conversation with accused Seema Manga gets diluted with the fact that he was getting regular payment on an average of Rs. 3 lakhs per month. It calls for more material from prosecution to make from exculpatory to incriminatory his alleged talk about the payment or remaining balance with Seema Manga.

150. LW 13 Sh. Deepak Bajaj, HR Head & the Chief Financial Officer of the M/s Unitech Ltd. identified the signature of Sh. Deepak Kumar Tyagi, CFO on the documents pertaining to Ledger Account maintained at M/s QNS Facility Management Pvt. Ltd., payment of consultancy and professional charges/fees for litigation, advisory and services to M/s Walia Associates and Memo of Fees dt. 16.06.2017 of Rs. 24 lacs, having been forwarded to CBI through Mohit Pahwa (LW4) vide authorisation letter dt 13.09.2018. He also identified the ID card of accused Neeraj Walia and stated that he (Neeraj) was not regular employee of M/s Unitech Ltd. He also identified the signature of Ramesh Chandra on aforesaid documents. He also identified his own signature on the letter of appointment of accused Seema Manga and Pradeep Kumar Thakur. He also identified the voices of Sh. Ramesh Chandra, Sh. Ajay Chandra, Sh. Sanjay Chandra, Deepak Bajaj, Smt. Seema Manga and other officials of M/s Unitech Ltd. in the recorded conversations. About the context of conversations involved in this case he stated that it were pertaining to the regular payments of settlement amount to the flat owners and other complainants. He further stated that as far as he knew payments were made to them through Seema Manga who was very active in the entire matter of managing/settling the cases/complaints in consultation with Sh. Ajay Chandra and Sh. Ramesh Chandra. Thus, his testimony about the context of conversation is contrary to what LW8 Lakhbir Chand Sharma had stated about the context of conversations. Both are prosecution witness and their conflicting stands gives further dent to the case of the prosecution.

151. LW14 Sh. Deepak Kumar Tyagi, the Chief Financial Officer w.e.f 29.04.2017 of M/s Unitech Ltd. stated on the lines of what LW13 Deepak Bajaj had stated and identified his own signature on the relevant documents and about payments/salary being given to accused Seema Manga and Pradeep Kumar Thakur. He also stated that documents on which he identified his documents clearly show that accused Neeraj Walia of Walia Associates was associated with M/s Unitech Ltd. as consultant and was getting regular remuneration on account of his consultancy and professional charges/fees from M/s Unitech Ltd. through 100% subsidiary company namely M/s QNS Facility Management Pvt. Ltd. About the conversation involved in this case he stated that it were pertaining to the regular payments of settlement amount to the flat owners and other complainants. He further stated that as far as he knew payments were made to them through Seema Manga who was very active in the entire matter of managing/settling the cases/complaints in consultation with Sh. Ajay Chandra and Sh. Ramesh Chandra. Thus, even his testimony about the context of conversation is contrary to what LW8 Lakhbir Chand Sharma had stated about the context of conversation. Both are prosecution witness and their conflicting stands gives further dent to the case of the prosecution.

152. LW15 Sh. Satish Sharma, the SHO of P.S. Hauz Khas stated that Insp. Sanjay Sharma was his junior and was posted as Inspector, ATO/Bravo at P.S. Hauz Khas till 01.08.208 when he was relived to report to district lines and then stand suspended w.e.f. 10.08.2018. He further stated that as per information already provided by letter dt 16.08.2018 there were no registered cases against M/s Unitech Ltd. in P.S. Hauz Khas during the year 2016-18 (upto 31.08.2018) and that he had provided list of 12 complaints against Unitech and its promoters received in P.S. Hauz Khas. He clarified that most of the complaints were regarding none-execution of bailable warrants issued against Sh. Ramesh Chandra, Sh, Ajay Chandra by Saket Court which could not be served as they evaded the execution of BWs. Enquiry of Sanjay Sharma revealed that the alleged bailable warrants were not received at P.S. Hauz Khas and on receipt they would be executed. He further sated that he know Mr. Neeraj Walia, Advocate and had met him in the matter of different case/complaints against his clients registered at different places during his carrier in Delhi Police and also since his father was earlier posted in Delhi Police. He identified the voice of Neeraj Walia, Neeraj Kumar and Sanjay Sharma.

153. LW15 Sh. Ashish Sharma, Inspector (Investigation) posted at P.S. Saket, identified the voice of accused Neeraj Kumar and deposed about the duties and responsibility of SHO and about circular/standing order regarding this. He had also submitted list of pending cases at P.S. Saket against M/s Unitech Ltd. and its directors/promoters. He further stated that there were 104 pending complaints and 92 of them were being inquired by SI Rakesh Jaiswal (LW17).

154. LW17 Rakesh Kumar Jaiswal, Inspector at P.S. Saket, identified the voice of accused Neeraj Kumar as having worked with him and having talked to him face to face and over phone, he could identify his voice. He was able to identify voices of Sh. Ajay Chandra, Upma Chandra, Lakhbir Chand Sharma (LW8) and Mohit Pahwa (LW4) as he had spoken to them during the investigation of cases and enquiry of complaints against M/s Unitech Ltd. and its Directors/promoters. He also stated about the duties and responsibilities of SHO of a Police Station and about circular and standing orders in this regard. He further stated he was entrusted with investigation of 29 cases and enquiry of about 85 complaints registered against M/s Unitech Ltd. and its Directors/Promoters. He further stated that whenever he required he discussed his cases with the SHO Neeraj Kumar to seek his guidance/instruction and even the SHO also used to call him for knowing the progress of investigation in the cases registered against M/s Unitech Ltd. and its Directors/Promoters which were being investigated by him. He further stated that there was no practice of giving instruction/guidance in writing except in case which is monitored by Court or by the Supervisory Officers. He further stated that he used to speak to M/s Unitech Ltd. officials regarding documents required during the investigation and regarding the service of summons and joining investigation in the case by the accused persons. He further stated that since he could no take coercive action against the Directors of M/s Unitech Ltd. due to the orders of Hon'ble Supreme Court, even though they were named accused in different cases so he had to repeatedly request the Directors/Promoters through Mr. Lakhbir Sharma to join investigation. With respect to question as to why he was entrusted with investigation of so many cases (29 out of 58) against M/s Unitech Ltd., he stated that it was the prerogative of the SHO to assign cases for investigation and further stated that since the registered office of Unitech Ltd. fell under his division most of the case were entrusted to him for investigation. He further stated that he had never demanded any kind of bribe from Unitech in the matter of cases being investigated by him. Thus, there is no inculpatory in his statement against any of the accused persons. He did not say that accused Neeraj Kumar ever asked him to go slow in the cases against M/s Unitech Ltd. and its directors or ever misguided him in the investigation of cases against M/s Unitech Ltd. and its directors/promoters. Testimony of this witness also gives dent to the case of the prosecution.

155. LW20 Ms. Madhu Rani and LW21 Sh. Satjit Singh in their respective statement seek to prove that a landline phone in the name of Sh. Ajay Chandra was installed in Tihar Jail for a period of 6 months in the request of Jail Superintendent following direction of the Hon'ble Supreme Court.

156. LW22 Sh. Lalit Bhasin, Chairman of H.B. Leasing and Finance Company Ltd., H.B. Portfolio, H.B. Stock Holding Ltd. & few other companies, stated that he had old family relation with Directors/Promoters of Unitech Ltd. namely Chandras since childhood. He further stated that mobile No. 9811827778 and Landline No. 23328626 was given by the company to Mrs Renu Gupta (LW23) who looked after secretarial jobs assigned to her. He further stated that he had mobile No. 9810077778 and had once given to Upma Chandra while talking to Ajay Chandra over phone. He further stated that he or his company never gave any money or financed the company Unitech Ltd. or its Directors/promoters. He further stated that on 30.07.2018 in the night he left Delhi to visit Baglamukhi Temple in Datia, MP and on 31.07.0218 Mrs. Renu Gupta (LW23) called him at 6 pm to inform that Seema Manga from Unitech Ltd. had sent Rs. 18 lakhs in cash to his office and upon asking as to why Seema had sent and why she (Renu) had kept in his office, she (Renu) replied that she had no knowledge and assumed that he was aware of the cash being sent to his office and as she could not connect to his phone she received the money and kept in the office. He further stated that he met Ajay Chandra in Jail in this regard and he said that he would get it picked up and cash amount was later collected from Mrs. Renu Gupta by some person from M/s Unitech Ltd. About the alleged bribe money, he stated that his company had never given any money to M/s Unitech Ltd. and any of its official. He further stated that he had no role to play in the cases registered against the Unitech Ltd. He identified the voice of Mrs. Renu Gupta in conversation with Seema Manga. Nothing inculpatory against any of the accused persons is found in his statement. LW23 Mrs. Renu Gupta seek to corroborate what was stated by LW22 Lalit Bhasin and seek to confirm the conversation of Call No. 78. In her statement also there is nothing incriminatory against the accused persons.

157. LW24 Sh. Udai Veer Singh Rathi, a retired ACP of Delhi Police, seeks to prove that car bearing Regd. No. DL 1 CAK 9507 was sold by his daughter Smt. Bharti Rathi some 8-9 years ago to accused Neeraj Walia who had till date not got the name transferred in his name.

158. LW27 Ms. Deepti Vashista, Asst. Programmer of TAFSU, seeks to prove seizure and sealing of Network Video Recorded (NVR) with Power Cable from P.S. Saket on 31.07.2018.

159. LW28 Sh. Jhabboo Ram Meena, Sr. Technical Assistant with Registrar of Company, Delhi & Haryana, seeks to prove with record from ROC the Certificate of Registration of M/s Unitech Ltd. and M/s QNS Facility Management Pvt. Ltd. and other documents relating both companies.

160. LW29 Sh. Pradeep Kumar Thakur stated in his statement about having delivered a packet containing money on 30.07.2018 at the residence of accused Neeraj Walia following his talk with him upon the direction of Seema Manga. He identified his conversation with his friend Deepak Mishra (LW9) of call No. 70. He further stated how he was asked to visit the office of a lawyer and remain underground for some time and to keep his phone switched off and how he had gone to Haridwar as already noted above.

161. 14 more witnesses have been cited but their statements under Section 161 CrPC have not been recorded. They are mostly of formal nature like LW30 Ms. Sikha Garg, Asst. Registrar of Companies (she would prove records relating to Company), LW31 Sh. Devesh Chandra Srivastava, Joint Commissioner of Police (he will prove Sanction for prosecution granted against the Public Servants), LW32 Sh. Ramesh Kumar Biyan, Superintendent Central Jail No.1 (to prove the telephone facility provided to Ajay Chandra and his visitors in Tihar Jail) and so on.

162. Thus, it is seen that oral testimonies of the witnesses, except that of LW2, LW3 and LW10 who were member of trap team, recorded under Section 161 CrPC do not contain any inculpatory materials to give rise to grave suspicion about the commission of offense by accused persons. Testimonies of LW2, LW3 and LW10 at best would prove only recovery of Rs 2 lacs contained in envelope found in the coat/blazer of the accused Neeraj Kumar allegedly at the instance of accused Neeraj Kumar. Their testimonies of admission by accused Neeraj Walia (about having delivered bribe money) or of Neeraj Kumar (about having accepted Rs 2 lacs from Neeraj Walia) would be hit by Section 25 of the Evidence Act and as such not admissible in evidence.

163. From above it can be said that oral testimonies of witnesses are not directed towards bringing evidence on record regarding demand of bribe by public servant or acceptance of bribe by public servant or conspiracy to pay bribe. Thus, neither the intercepted conversations nor recovery of Rs. 2 lacs in an envelope at the instance of accused Neeraj Kumar from his blazer/coat coupled with CCTV footage nor the testimonies of the witnesses either alone or in association with each other prima facie give to rise to grave suspicion about the commission of offense by the accused persons.

164. Consequently, keeping entire things in mind as discussed above, the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court this court does not find that there are sufficient ground to proceed against accused persons. In other words materials collected by the Investigating Agency on consideration do not give rise to grave suspicion about the commission of offense by the accused persons. Hence, all the accused persons namely Sh. Neeraj Kumar, Sh. Neeraj Walia, Sh. Ramesh Chandra, Sh. Ajay Chandra, Ms. Upma Chandra, Ms. Seema Manga and M/s Unitech Ltd. are hereby discharged of all allegations made in the present charge-sheet.

165. Bail bond of respective accused persons and respective surety bonds of the Sureties stands discharged. Original document of respective Sureties, if any, be returned to them as per rules.

166. In terms of Section 437A, all discharged accused persons except accused Ajay Chandra and Ramesh Chandra, are required to furnish bond of Rs. 50,000/- each with one surety of like amount. Needless to say that such bond and surety shall remain valid for a period of six months from the date of acceptance.

167. Since Ajay Chandra and Ramesh Chandra are already in JC in different cases, they need not furnish bond with one surety in terms of Section 437A, however, in the event of their release from custody anytime before next 6 months from today, they shall respectively furnish such bond and with one surety within three days of their respective release and such bond shall remain valid for unexpired period of six months from today.

168. File be consigned to Record Room after necessary compliance.