Demand & acceptance must be proved beyond doubt: Armed Forces Tribunal

Pune: The Mumbai bench of the Armed Forces Tribunal (AFT) has set aside a couple of orders of July 25 and 26, 2023, in a general court-martial proceeding that sentenced an Army subedar in Pune to four years' rigorous jail and dismissed him from service in an alleged bribery case.
"It would be appropriate to make a remark that the plausibility of the accused demanding money from the complainant, though, could not be ruled out.However, to prove demand and acceptance, the prosecution should prove its case beyond a reasonable doubt," the bench said, citing "too many gaps" in the prosecution's case against the subedar.
The gaps impede the prosecution story from being proven to the hilt, the bench noted.
The tribunal discussed in detail the evidence and witness deposition on record and noted that there was no audio recording of the demand nor any video of the appellant (subedar) accepting money.
No phenolphthalein powder treatment was done on the currencies purportedly handed over to the subedar to establish that he was caught ‘red-handed'.
Similarly, there was no separate list of currency notes before and after the trap, and the recovery memo was done the next day. Finally, the prosecution could not prove that the bag containing the money seized from the office room during the trap belonged to the subedar.
The Military Intelligence (MI) had arrested the subedar in Jan 2022 from his office at the Commander Works Engineer (CWE), Air Force, Lohegaon, after an ex-serviceman had lodged a complaint that the subedar demanded Rs2 lakh bribe, which was subsequently raised to Rs2.5 lakh, to get him a canteen contract at an Army establishment.
The complainant reported the matter to the second in command of the Southern Command Provost Unit. The complainant had played a voice recording before him. Thereafter, the board of officers was convened to trap the accused and catch him red-handed. The Provost Unit got in touch with the Intelligence Corps, who provided the complainant with a shirt with cameras to watch and record conversations.
The complainant wore the shirt and arranged for Rs 1 lakh to be handed over to the accused at his office at 7 pm. The complainant proceeded on a motorcycle while the trap team followed him on a four-wheeler. He handed over the amount. He gave a signal to the trap team through a pre-decided mobile number. The members of the trap team rushed into the office and recovered the amount contained in a bag.
The bench said that apart from the oral evidence, the voice recording of the demand could also have been shown as an evidence. However, the mobile of the applicant could not be seized. Also, the complainant in his examination stated that his mobile phone was not functional. He tried to switch it on, but it did not turn on. He said that he deposited his mobile in the same condition to the 61 Sub Area.
"During his cross-examination, the officers conducting the court martial enquired about the mobile phone of the complainant. However, he failed to secure production of the phone and hand it over to the board of officers," stated the order.
"Thus, it is clear that the complainant is not speaking the truth regarding depositing the mobile phone with 61 Sub Area. This shows that he was not inclined to get the contents of his mobile to be probed. There is substance in the written submission of the subedar that the complainant had prevented the truth from being revealed, if at all there was some recording in the phone. There is also substance in the submission of the subedar that the mobile was not recovered from the complainant after the summary of evidence procedure had been concluded," stated the order.
"Also, the dysfunctionality of the mobile has to be certified by a forensic expert before whom the complainant did not produce his mobile phone. Further, the prosecution has not taken any steps to obtain a voice sample of the applicant (subedar) for matching the same with the voice in the recordings. No call records have been obtained to prove calls made between the subedar and the complainant. Call detail records (CDR) could have been obtained from the concerned mobile network operator but that has also not been produced," stated the order.
"The shirts fitted with cameras and wristwatch were provided to the complainant by the Intelligence Unit. However, these gadgets were not seized by the board of officers. No recordings were obtained to be produced as evidence," the order stated.
Arguments for the appellant were led by Lt Col M Anand (retd), advocate and assisted by Brigadier Jayesh Khera (retd).