Delhi High Court
Cbi vs Dr. As Narayan Rao on 1 July, 2019
Author: Mukta Gupta
Bench: Mukta Gupta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on:14th August, 2018
Decided on: 1st July, 2019
+ CRL.A. 382/2017
CBI ..... Appellant
Represented by: Ms. Rajdipa Behrua, SPP for
the CBI with Mr. Philomon
Kani, Ms. Kriti Handa, Ms.
Hansika Sahu, Ms. Damini
K. and Mr. Ashray Behrua,
Advocates with Inspector
H.V. Attri
versus
DR. AS NARAYAN RAO ..... Respondent
Represented by: Mr. Raj Kamal with Mr.
Benant Noor Singh Marok,
Mr.Dinesh Malik, Advocates
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. By the present appeal, CBI challenges the impugned judgment dated 11th December 2015 acquitting the respondent for the offences punishable under Section 7 & 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 (in short 'PC Act').
2. Briefly stated, prosecution case is that on 29th January 2009, V. Swaminathan, Jr. Vice President of M/s Titanium Taltalum Products Ltd, Chennai made a complaint against the respondent who was then working as Director (S&T) RAW, Cabinet Secretariat. As per the complaint, M/s Titanium Tantalum Products Ltd. was in the business of exporting a large number of items such as pressure vessels, reactors, heat exchangers, CRL.A. 382/2017 Page 1 of 16 columns and parts manufactured out of Titanium, Tantalum, Nickel, Zirconium etc. For the purpose of export of the above-mentioned items export license was required from Director General of Foreign Trade, New Delhi (in short 'DGFT'). Since number of these items are of dual use that is they can be used for military purpose apart from the civil use, the clearance of a few government agencies such as Cabinet Secretariat is also required to clear the export license from the point of view of National Security. For this purpose, an Inter-Ministerial Working Group (in short 'IMWG') was in place which had representatives from number of different agencies. Their company had applied for export license with DGFT in the month of August-September 2008 for making export worth ₹4,50,00,000/- to Qatar, UAE. The export license was not received by them even after a lapse of 4-5 months because their proposal was not cleared by the Cabinet Secretariat. On 9th January 2009 the Inter- Ministerial Working Group had a meeting at Chennai. After the meeting was over the respondent informed him that the proposal of their company for export license could be cleared if he paid him a bribe amount of ₹8,00,000/-. Since then the respondent had been threatening him over the phone and during meetings, for payment of the bribe amount as early as possible. He further demanded that part of the illegal gratification be paid at Dubai.
3. During the verification proceedings telephonic conversation was recorded by Trap Laying Officer, Rajesh Chahal on 29th January 2009 to establish the demand of bribe of ₹8,00,000/-. According to the prosecution, at about 5:40 P.M., V. Swaminathan made a call from his mobile phone to the mobile of the respondent. The said conversation was CRL.A. 382/2017 Page 2 of 16 recorded in the presence of independent witness with the help of Digital Voice Recorder and the same was heard simultaneously by the independent witness and the verifying officer. The recorded conversation revealed demand as well as the willingness to accept the illegal gratification of ₹8,00,000/- for the clearance of issuance of export license. The respondent asked V. Swaminathan to contact him the next morning to fix up the venue and time of transaction.
4. On 2nd February 2009, Vineet K Aggarwal, SP ordered registration of FIR and taking up of investigation vide Ex.PW-16/A and the same was marked to Rajesh Chahal who secured the presence of two independent witnesses namely S. Sridhar, Officer, Corporation Bank and Shiv Prasad Badola, Clerk, CPWD and called V. Swaminathan to the CBI Office with the trap money. A trap team of CBI officials consisting of Rajesh Chahal, Jitender Adlakha, A. Sathiya Moorty, Prem Nath, Vikas Pathak, Nikhil Malhotra and other subordinate staff was constituted. The CBI trap team, independent witnesses and V. Swaminathan assembled at the CBI office at 12:45 P.M. Thereafter, a trap kit containing clean glass bottles, clean glass tumblers, sodium carbonate powder, sealing material, CBI Brass seal and phenolphthalein powder were arranged. V. Swaminathan then produced the trap money of ₹1,00,000/-. The number and denominations of the currency were recorded vide handing over memo Ex.PW-10/A.
5. Thereafter SI Vikas Pathak treated the said trap money with phenolphthalein powder and also gave the demonstration of use. Thereafter, Shiv Prasad Badola kept the tainted bribe amount in the right side pant pocket of V. Swaminathan. He was instructed not to touch the tainted amount before handing over the same to the respondent. He was CRL.A. 382/2017 Page 3 of 16 further directed to hand over the same to the respondent on specific demand only. Thereafter, V. Swaminathan called him wherein the respondent asked him to meet at India Palace Guest House, Karol Bagh at about 7:00 P.M. S. Shridhar was asked to act as the shadow witness and to remain with V. Swaminathan in order to overhear the conversation and see the transaction of bribe. He was instructed to pass on a signal of transaction of bribe by rubbing his face with both hands. V. Swaminathan was also instructed to give a call to Rajesh Chahal immediately after the transaction of bribe in case the shadow witness could not see him or other team members.
6. On completion of the pre-trap proceedings, Rajesh Chahal along with the trap team members, both witnesses and V. Swaminathan reached Karol Bagh near the hotel where V. Swaminathan was staying at 6:15 P.M. DVR was handed over to V. Swaminathan with the direction to switch the same on before entering the room with the respondent. At about 7:20 P.M., he received a call from V. Swaminathan informing him about the transaction of the bribe. All the trap team members rushed to Room No.101 of India Palace Guest House. He took the DVR form V. Swaminathan and switched it off. When he entered the room, he found the shadow witness sitting on the sofa, V. Swaminathan on the side bed and the respondent on double bed facing them. He asked the shadow witness to narrate the conversation and transaction of bribe to which the shadow witness stated that after reaching Room 101, V. Swaminathan switched on the DVR and made a call to the respondent from his mobile phone after putting the speaker in on mode. The respondent informed V. Swaminathan that he was reaching the said hotel at about 7:00 P.M. The respondent then CRL.A. 382/2017 Page 4 of 16 entered the room who was introduced by V. Swaminathan to him as AS Narayan Rao. Then after having the conversation regarding the bribe, V. Swaminathan informed the respondent that he would only be able to give ₹1,00,000/- as the first installment and the COO of the company Ramesh Ayyer was reaching there with the remaining money. Thereafter the respondent agreed to accept the bribe amount. Accordingly, V. Swaminathan took out the tainted bribe amount of ₹1,00,000/- from his right-side pant pocket and extended the same towards the respondent who accepted it with his right hand and handled the same with his both hands and then kept the same in his right-side pant pocket. Sridhar further informed the trap team that when V. Swaminathan informed him regarding transaction of bribe, the respondent took out the tainted bribe amount of ₹1,00,000/- from his pant pocket and hid the same under the blanket on the bed.
7. Thereafter, the right-hand wash, left hand wash and right-side pant pocket wash of respondent was taken in separately prepared colorless solution of Sodium Carbonate and water in clean glass tumbler. The respective solutions turned pink and were transferred and sealed in separate clean glass bottles which were signed by the witnesses. The recovered bribe amount was tallied and the numbers and denominations of the recovered amount were found the same as mentioned in the handing over memo. Small portion of the blanket as well as of the white colour bed sheet from where the trap money was recovered were cut and washes thereof were taken separately in colorless solution of sodium carbonate and water. The solution turned pink and was transferred separately in clean glass bottles which were sealed and marked BW and BSW. The CRL.A. 382/2017 Page 5 of 16 recorded conversation was heard and then transferred in an audio cassette after ensuring its blankness. The respondent was arrested on the spot. The tainted bribe amount of ₹1,00,000/-, five bottles containing washes, pant of the respondent, piece of blanket and bed sheet, audio cassette were taken into police possession.
8. Vide order dated 2nd April 2014, charge was framed against the respondent for offences punishable under Section 13(1)(d) punishable under Section 13(2) PC Act and vide the impugned judgment learned Trial Court acquitted the respondent.
9. Respondent was acquitted by the Trial Court on the ground that there was nothing on record and no explanation to show why Vineet Aggarwal, SP CBI visited DGFT office to meet Dr. Shyam Aggarwal even before the complaint was filed by V. Swaminathan. First complaint which was actually the first information given by V. Swaminathan to DGFT was not placed on record by the Investigative Agency. No explanation was furnished by the prosecution with respect to the original complaint not being placed on record and why the said complaint was not made the basis of FIR. The evidence on record indicated that some preliminary inquiry was conducted by Vineet Aggarwal, SP on receipt of information/complaint but it has neither been registered nor its result/inquiry report has been placed on record.
10. In his cross-examination V. Swaminathan deposed that he might have come to Delhi on 14th January 2009. Vijay Bisht, receptionist of Hotel India Guest House, Delhi produced the record of the hotel and testified that V. Swaminathan had made an entry in the hotel register at about 8:30 P.M. on 14th January 2009 and he stayed in their hotel up to 2nd CRL.A. 382/2017 Page 6 of 16 February 2009 in room number 01 and thereafter shifted to room number 101 on 3rd February 2009. It is clear that he was in Delhi from 14 th January 2009 but there is nothing on record to show what necessitated him to wait for 15 days till 29th January 2009 to file the complaint. The Investigative Agency has also not offered any explanation to show the delay of twenty days in lodging the FIR.
11. Furthermore, the recorded conversation of the respondent and V. Swaminathan with respect to the demand of bribe was also not proved. On being questioned in court, Rajesh Chahal, TLO was not able to point out the specific portion of the recording that showed the demand for bribe. He further admitted that the portion containing the demand and agreement to accept the illegal gratification, in the conversation recorded in the cassette Q1 as contained in the two pages of the transcript were missing in the recorded conversation. The original DVR in which the conversation was allegedly recorded by the CBI was also not produced in the Court.
12. Moreover, the demand of bribe of ₹8,00,000/- on or before 9th January 2009 was also not established. In the complaint dated 29th January 2009 it was alleged by V. Swaminathan that after the meeting of IMWG was over, the respondent told him that the proposal of his company would be cleared if he paid him a bribe amount of ₹8,00,000/-. Since then the respondent had been constantly asking on the telephone as well as during meetings that the said bribe amount of ₹8,00,000/- should be paid at the earliest. In his testimony V. Swaminathan stated that the respondent started contacting him prior to the meeting of IMWG in January 2009 and that he was approaching him by misrepresenting himself as a representative of the respondent and he came to know about his identity CRL.A. 382/2017 Page 7 of 16 only when he attended the meeting of IMWG at Chennai in January 2009. Thereafter, he stated that he had met him earlier also but at that time he represented himself as on 'Mr. Sachdev'. These facts have not been mentioned in the complaint filed by V. Swaminathan and have only been stated for the first time in his deposition before the court.
13. A perusal of the testimonies of V. Swaminathan, the shadow witness and TLO Inspector Rajesh Chahal does not establish specific demand of bribe by the respondent on 2nd February 2009 during the trap proceedings. The voluntary acceptance and recovery of tainted money from the possession of the respondent also remains doubtful.
14. The motive for demand of illegal gratification has not been established. As per the charge-sheet, application of V. Swaminathan was approved by the IMWG subject to NOC from the Cabinet Secretariat and it was alleged that NOC was pending in the office of the respondent. It was further the case of the prosecution that the documents pertaining to the license of M/s Titanium Tentalum Products Ltd. Chennai, for export to Qatar were received in the office of the respondent on 25th September 2008 and the file was issued to him for his comment/views and was allegedly pending with him till the date of the search that is 3rd February 2009 and the respondent as the head of the Department of Science & Technology, Cabinet Secretariat was supposed to give NOC for the said application, which had been approved by IMWG in its meeting on 9 th January 2009. Testimony of DW-2 and minutes dated 29th January 2009 of IMWG dated 9th January 2009 coupled with the deposition of PW-18 shows that approval had been granted unconditionally as regards two cases of the complainant's company whereas as regards Qatar, it was CRL.A. 382/2017 Page 8 of 16 subject to NOC of the Cabinet Secretariat and as regards other cases of UAE and New Caladonia the matter had been postponed by the IMWG itself. Moreover, the evidence on record showed that the respondent was not the final authority for grant of NOC and the note dated 12th January 2009 prepared by the respondent had been put up before the Superior Officers that is Additional Secretary and Special Secretary, Cabinet Secretariat.
15. Challenging the acquittal, Ld. Counsel for the CBI contends that the Trial Court has ignored the CFSL report that besides hand even pant pocket of respondent turned pink. V.Swaminathan admitted that when he went to give the first complaint in DGFT against respondent, he met Vineet Agarwal and Dr. Shyam Aggarwal but they did not accept the letter. There is no evidence on record to show why Dr. Shyam Aggarwal would implicate the respondent. It is contended that the fact of acceptance of bribe was proved by the Shadow Witness who stated that V. Swaminathan told the respondent that he could arrange only ₹1,00,000/- and gave the same to the respondent and the respondent accepted the same and kept the amount in his pant pocket. The fact of the acceptance of bribe has also been proved by V. Swaminathan who stated that he told the respondent that he could only arrange for ₹1,00,000/- and the rest would be paid later and handed over the money. He also stated that the money was accepted by the respondent and kept in his pant pocket.
16. Learned counsel for the CBI further submits that the hand wash, pant pocket wash and the wash of the bed sheet which turned pink proves the fact that the bribe amount was indeed accepted by the respondent. It is also submitted that the respondent had the requisite motive to demand and CRL.A. 382/2017 Page 9 of 16 accept the bribe since the file with respect to grant of NOC for export of SCOMET items to Qatar by M/s Titanium Tantalum Products limited was pending with the respondent. This fact was proved by the testimony of Ignaci Arulanandu who has stated that documents relating to export license of M/s Titanium Tantalum Products Ltd. was recovered from the room of the respondent and NOC was pending on the day of the search.
17. Ld. Counsel for the respondent contends that no motive on behalf of the respondent for acceptance of bribe has been established. The respondent was not the final authority as his proposal and note for NOC had to be approved by his senior officials namely Additional/ Special Secretary, Cabinet Secretary. He further submits that on the date of the incident that is 2nd February 2009 the respondent went to meet V. Swaminathan at Hotel India Palace Guest House, Karol Bagh as he had contacted him that his CEO Mr. Ramesh Aiyar wanted to meet him to seek advice on Dr. Shyam Aggarwal, Chairman demanding bribe from V. Swaminathan. Bhagirath Jha (DW-2), Under Secretary (Legal), Cabinet Secretariat produced the official records in his deposition before the trial court which showed that the Respondent had cleared the file on 12 th January 2009 itself. He further submits that the respondent had filed an application under Section 156 (3) Cr.P.C. with respect to conspiracy between Dr. Shyam Aggarwal, Chairman and V. Swaminathan on 26th August 2010 for corruption and falsely implicating the respondent in the present case. He further submitted that the respondent was a whistle blower who sought to expose his superior officers demanding bribe but was entangled into false criminal prosecution by the SP, CBI in conspiracy and connivance with V. Swaminathan.
CRL.A. 382/2017 Page 10 of 1618. Learned counsel for the respondent further contends that the demand or acceptance of illegal gratification by the respondent has also not been established by the prosecution. To establish the demand, the prosecution had examined two trap witnesses being S. Sridhar and Shiv Prasad Badola but in neither of their testimonies the explicit demand for illegal gratification has been noticed. To further substantiate the allegation of demand the prosecution relied upon three audio cassettes Q1, Q2 and Q3 copied from DVR but none of the original DVRs were either produced or seized by the prosecution and neither the certificate under Section 65B of the Evidence Act was produced thereof. In the absence of the certificate the document which constitutes electronic record, cannot be deemed to be a valid evidence and has to be ignored from consideration. Since the audio tapes could not be admitted in evidence for want of a certificate under Section 65B Evidence Act, they ought to have been completely ignored and could not be relied upon. He also submits that audio cassette Q1 was doctored, manipulated and recorded in two parts. One part was exhibited as Ex.PW-2/3 and the second part was exhibited as D-3. In entirety, Q1 was supposed to establish demand, however when the alleged cassette was played in court, the portion D-3 consisting of 2 pages and which allegedly established 'demand' was found to be missing and were not there in the alleged recorded conversation. There was nothing in the first part of Q1 which would constitute demand and that to illegally entangle the respondent into false case, V. Swaminathan gave some suggestions indicating demand to which the respondent had no knowledge and responded by saying 'what'. Thereafter to complete the chain and concoct demand two-page transcript in form of D-3 was planted by the CRL.A. 382/2017 Page 11 of 16 prosecution to establish demand, the contents of which were found to be missing when the audio tape was played in court. Audio cassette Q2 had no incriminating evidence in it and audio cassette Q3 could not be played in court due to the heavy background noise in it.
19. Learned counsel also submitted that recovery of tainted money was not made from Respondent by Trap Team leading to doubt on voluntary acceptance and factum of demand. Reliance is placed upon the decisions of the Supreme Court reported as (2017) 8 SCC 136 Mukhtiar Singh v. State of Punjab, (2016) 12 SCC 150 V. Sejappa v. State, 2009 (3) SCC 779 C.M. Girish Babu v. CBI and (2013) 14 SCC 153 State of Punjab v. Madan Mohan Lal Verma. The phenolphthalein test coming positive cannot be given undue weightage in the present case as the powdered currency notes were went in the hands of multiple people. That as such even if the respondent shook hands with any of these witnesses the alleged powder is bound to be transmitted to the hands of the respondent. Reliance is placed upon the decision of the Supreme Court reported as (2015) 11 SCC 314 C Sukumaran v. State of Kerala.
20. Learned counsel submitted that from the bare perusal of the evidence on record it is crystal clear that the investigation and prosecution did not only fail to prove the case beyond reasonable doubt but also doctored and manipulated incriminating evidence and thus failed in their duty to conduct impartial investigation without any bias. Reliance is placed upon the decisions of the Supreme Court reported as (1974) 3 SCC 774 Jamuna Chaudhary v. State of Bihar and (2011) 10 SCC 192 Mohd. Imran Khan v. State. He further prays that the failure of the investigating officer and the prosecutor in discharging their duty entitles the respondent CRL.A. 382/2017 Page 12 of 16 to pray for adverse inference to be drawn against the investigation and prosecution under Section 114 of the Indian Evidence Act and entitles the respondent to acquittal. Reliance is placed upon the decisions of the Supreme Court reported as 2015 (1) SCALE 498 Tomaso Bruno v. State of UP and (2009) 14 SCC 541 Mussauddin Ahmed v. State.
21. Heard learned counsel for the parties. Learned Spl. PP for the CBI has vehemently contended that since the FSL revealed that the hand-wash, pant pocket wash and wash of the bed-sheet turned pink, it proves beyond reasonable doubt that the bribe amount was indeed accepted by the respondent and the said evidence in itself is sufficient to prove the case of the prosecution beyond reasonable doubt against the respondent.
22. As noted above, V. Swaminathan the complainant deposed that the respondent was representing himself as one Mr. Sachdev and did not disclose his identity which he came to know when he attended the meeting of IMWG at Chennai in January 2009 to make out a case of initial demand. However, these facts were deposed by the complainant for the first time in his testimony before the Court only and thus the learned Trial Court rightly rejected the same being material improvements. Further, the testimony of V. Swaminathan, shadow witness and the TLO Insp. Rajesh Chahal does not establish specific demand of bribe by the respondent during the trap proceedings. The tape recorded conversations exhibited by the prosecution purportedly of the recording of the conversations at the time of trap does not reveal a demand of bribe. The investigating officer in his testimony before the Court admitted that the version in the purported transcript for demand of bribe was admittedly not there when the actual cassette was played in Court. Thus, there is no evidence to CRL.A. 382/2017 Page 13 of 16 establish demand of bribe at the time of raid.
23. Though it is the case of the prosecution that the file for approval of the case of V. Swaminathan was pending before the respondent, however the respondent produced DW-2 who brought the minutes dated 29th January, 2009 of IMWG and also the deposition of PW-18 shows that approval for two cases of the complainant company had been granted unconditionally on 9th January, 2009 wherein the respondent had no role to play and as regards third file relating to Qatar it was subject to NOC of the Cabinet Secretariat in which decision making process the respondent was not the final authority. It also assured that the Note dated 12 th January, 2009 prepared by the respondent had already been put up before the senior officers i.e. Additional Secretary and the Special Secretary.
24. Case of the respondent in his statement under Section 313 Cr.P.C. was that he was innocent and falsely implicated at the instance of Dr. Shyam Aggarwal, Chairman of IMWG who was known to Vineet Aggarwal S.P. CBI and in conspiracy with the complainant, this corruption case was foisted on the respondent. The respondent had strongly objected to conducting of confidential IMWG Meeting in Chennai in the presence of complainant whose 5 applications were pending. The respondent had witnessed bribe given to Dr. Shyam Aggarwal by the complainant for conspiring to conduct IMWG Meeting in complainant's hotel and permitting him to try to influence members to give NOC to all his pending applications. Though the DGFT officers informed the IMWG members that arrangements will be made by local DGFT Office at Chennai, however the meeting was sponsored by the complainant. As a matter of fact the testimony of DW-2 who brought the CRL.A. 382/2017 Page 14 of 16 original files from the Cabinet Secretariat reveal that it was decided in the meeting held on 9th January, 2009 itself that "the case of M/s. Titanium company's export to Qatar is also to be cleared as there is a plea by the company to Commerce Secretary for obtaining export license" and such a Note was already put up for approval on 12 th January, 2009 by the respondent. Further, DW-2 in his cross-examination admitted that on 8th April, 2009 the Cabinet Secretariat granted NOC for applying for the export license by M/s. Titanium Taltalum Products Ltd. The documents produced in defence evidence prima facie fortify the claim of the respondent in his statement under Section 313 Cr.P.C.
25. It is trite law that in an appeal against acquittal High Court can interfere only if the impugned judgment is perverse or illegal. If two views are possible and the view expressed by the learned Trial Court is one of the plausible views based on the appreciation of evidence led before it, then the High Court will not ordinarily interfere in the judgment of acquittal by reversing the same. [See. (1975) 3 SCC 167 State of U.P. Vs. Harihar Bux Singh; (1995) 2 SCC 486 State of Punjab Vs. Ajaib Singh; (2002) 1 SCC 71 Kashiram Vs. State of M.P.; (2004) 9 SCC 193 Kunju Muhammed Vs. State of Kerala and (2008) 11 SCC 153 State of Uttar Pradesh Vs. Punni and Ors.]
26. Considering the fact that the view expressed by the learned Trial Court based on the evidence adduced is a plausible view, this Court finds no ground to interfere in the impugned judgment of acquittal.
27. Appeal is dismissed.
CRL.A. 382/2017 Page 15 of 1628. TCR be sent back.
(MUKTA GUPTA) JUDGE JULY 01, 2019 'vj/ga' CRL.A. 382/2017 Page 16 of 16