K VIJAYAN Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) This revision petition under Section 397, Cr.P.C. is directed against the order dated 21.11.1998, passed by the Court of Sh. Dinesh Dayal, Special Judge, Delhi, holding that from the transcript of the conversation between the petitioner and respondent, recorded at spot and other material collected during investigations, prima facie case for framing charge under Section 8 of the Prevention of Corruption Act, 1988 (for short, "POC Act"), is made out in the case RC No. 60(A) / 1991/CBI/ADC dated 4.10.1991, and dismissing petitioner's application for discharge.

(2.) The complainant-A.K. Krishna Rao lodged a report with the CBI alleging: that his father is facing-a CBI probe in the case RC 23(A)/91-DLI; petitioner (Ex- Superintendent of Police, CBI), contacted the complainant, informing him that he had worked with CBI at senior levels and had maintained close contacts with its officers; on 2.10.1991, petitioner called the complainant to his house and demanded Rs. 1,00,000/- for helping his father. The complainant showed reluctance. Petitioner again called him at his house Vasant Kunj and asked him to pay Rs. 20,000/- by 4.10.1991, as initial payment for mobilising resources in the CBI to get the said case reach to a favourable stage. The complainant was not willing to pay the amount and informed the CBI. FIR was registered and raiding party was formed including two independent witnesses, Smt. S. Vilashini and V.S. Dhankhar and complainant was introduced to both the witnesses. Currency notes of Rs. 10,000/- were tainted with phenophthalein powder, after practical demonstration, were handed over to the complainant, to be given to the petitioner, on his specific demand. A micro-cassette recorder, containing blank micro-cassette was also given to the complainant for recording conversation at the spot. Smt. S. Vilashini, independent witness was directed to act as shadow witness and to give signal when the transaction was completed. Before proceeding to the residence of the petitioner, telephone call was v made at his residence, which was also recorded on the micro cassette. The complainant introduced to the petitioner shadow witness as his wife and tape- recorder was switched on. The conversation between the petitioner and complainant was duly recorded in the presence of Smt. S. Vilashini. After the transaction was over, Smt. S. Vilashini gave the appointed signal and petitioner was overpowered, Rs. 10,000/-, which he had kept between two pillows in his bed room, were recovered. Hand wash of petitioner and of the pillow cover, where money was kept, were taken in sodium carbonate solution, which turned pink. Micro-cassette containing conversation between the complainant and petitioner was heard and seized after all other legal formalities. Investigations revealed that the petitioner had demanded Rs. 1,00,000/- for influencing senior officers of the CBI, in the case being investigated, against the father of complainant; and petitioner accepted Rs. 10,000/- as the initial payment. After completion of investigation challan was filed on 30.6.1992. Cognizance was taken. Petitioner appeared before the Trial Court and moved an application for supply of more documents.

(3.) He simultaneously filed a petition (Cri .M.(M) No. 2765/93) for quashing of the FIR. CBI filed counter-affidavit in reply, copy of the seizure/recovery memos were also filed. On 11th December, 1992, petitioner filed rejoinder-affidavit and pleaded that he was engaged as Counsel for complainant's father Shriniwasa Rao; that on 4th October, 1991 CBI seized papers vide item No. 4 file containing notice issued by Inspector S.N. Saxena under Section 160, Cr.P.C., observations memo, papers, seizure memos, notes of the cases in RC No. 28-A/21 /DL-2 ACR containing pages at 1 to 36. Alongwith the rejoinder affidavit, photocopy of the hand-written letter dated 18.7.1991, stated to have been written by the petitioner to the complainant's father was also filed as Annexure F (hereinafter, alleged opinion letter), claiming that the letter supports his stand that Rs. 10,000/- was received by him towards the legal fee and the advice given by him to the complainant's father. On 20.4.1993, Mr. Lal, Standing Counsel for CBI raised an objection that the alleged opinion letter was not filed with the main petition and that if the document was seized, the same must have been filed alongwith the charge-sheet. Trial Court record was summoned for 21.5.1993. As per the order-sheet dated 21.5.1993, Counsel for the CBI admitted that the letter was also seized. Thereafter matter was adjourned and on 8.12.1993 considering the material on record, petition was disposed of. Petitioner was directed to approach the Trial Court and was granted liberty to produce the opinion letter dated 18.7.1991 addressed to Sri Niwasa Rao before the learned Special Judge. However, no finding was recorded whether said letter was seized by the CBI from the spot or not.