Delhi District Court
Cc No. 21/12, Cbi vs Rakesh Mohan Etc. on 26 March, 2013
CC No. 21/12, CBI vs Rakesh Mohan etc.
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC NO. 21/2012 (Old CC No. 28/12)
arising out of
RC No. 01A/2007/ACUIX/CBI
U/s 11,12,13 (1)(d)(iii) read with Section 13(2) of PC Act,1988
Unique ID No. : 02403R0068312011
Central Bureau of Investigation
vs.
1) Rakesh Mohan S/o Sh. Rajeshwar Nath,
R/o K6C, Saket, New Delhi17.
Previously R/o CII/50, Shahjahan Road, New Delhi.
2) Vijay Kataria S/o Sh. K.L. Kataria,
R/o B14, Geetanjali Enclave, New Delhi17.
Previous Office Address:
B5, Geetanjali Enclave, New Delhi17.
3) Sushil Kumar Mehta S/o Late Sh. B.D. Mehta,
R/o A29, Shivalik, Malviya Nagar, New Delhi17.
4) Raj Kumar Dudeja S/o Sh. Arjun Das,
R/o 26, DDA Flats, Sarvpriya Vihar, New Delhi16.
5) M/s Kaveri Infrastructure Pvt Ltd
through its Chairman Vijay Kataria
RC No. 01A/2007/ACUIX/CBI 1/68
CC No. 21/12, CBI vs Rakesh Mohan etc.
S/o Sh. K.L. Kataria,
Office address:
B14, Geetanjali Enclave, New Delhi17.
Previous Office address:
B5, Geetanjali Enclave, New Delhi17.
Date of FIR : 23/04/2007
Date of filing of Chargesheet : 12/09/2011
Arguments heard on : 08/03/2013
Date of Judgment : 26/03/2013
Appearances
For prosecution : Sh Anil Tanwar, Ld. Public Prosecutor for CBI.
For accused : Sh Satish Tamta, Ld. Counsel for A1.
Sh R.K. Handoo, Ld. Counsel for remaining
accused.
JUDGMENT
Adumbrated in brief, facts of case of CBI are as follows:
(1)(i) The case RC 1(A)/2007/ACUIX was registered against Rakesh Mohan, IAS (AGMU78)(A1), the then CEO, Delhi Jal Board, New Delhi, Vijay Kumar Kataria (A2) of M/s Kaveri Infrastructure Pvt.
Ltd. (KIPL) (A5) and others in the matter of awarding contract to KIPL for Trenchless Renovation of Water Rising Mains through Spray Epoxy Resin and Rapid Setting Polymetric Lining System at an RC No. 01A/2007/ACUIX/CBI 2/68 CC No. 21/12, CBI vs Rakesh Mohan etc. exorbitant amount of Rs. 35.84 crores.
(ii) Allegedly, A1 while functioning as Chief Executive Officer, Delhi Jal Board (DJB) in the years 2004 and 2005 conspired with A2 and obtained illegal gratification by misusing his official position with dishonest intention and influencing other officers in the award of above mentioned contract.
(iii) Allegedly, the technology for this work was arbitrarily selected and tailormade and further the tender proceedings were manipulated in order to award the contract to A5. It has been alleged that the technology used for "Trenchless Renovation of Water Rising Mains through Spray Epoxy Resin and Rapid Setting Polymetric Lining System" is actually used for improving the inner surface of the pipe line to increase its water carrying capacity and not for preventing leakages. It has been alleged that inspite of the fact that, there are other technologies in vogue world over for renovation of old pipe lines, this particular technology was selected deliberately without any study to formulate tender specifications, which were tailormade to suit A5.
(iv) Allegedly, the tender proceedings for the contract were manipulated. Notice inviting tender was issued by DJB in November, 2004 which was responded by six firms out of which three firms were prequalified by DJB in December, 2004. Three firms were disqualified on questionable grounds. Two prequalified firms namely M/s Water Flow Group INC, UK and M/s CM Contracting Ltd UK were allegedly non serious firms and the bidding by these two non serious firms was RC No. 01A/2007/ACUIX/CBI 3/68 CC No. 21/12, CBI vs Rakesh Mohan etc. managed only to fulfill the requirements of the tender rules and make the process look competitive.
(v) Allegedly, the estimate prepared by DJB was unrealistic and was on a very high side. Also allegedly the scope of work was changed in the meeting of technical committee.
(vi) Allegedly, the Technical Committee recommended the award of work to the consortium of M/s KIPL (A5) and M/s Pipe Way Ltd at a total cost of Rs 35.84 Crores with mobilization advance of 10% of the contract value against bank guarantee though there was no provision for mobilization advance in the NIT or in the tender document submitted by the consortium. The work was awarded to the consortium of A5 and M/s Pipe Way Ltd after obtaining approval of Delhi Jal Board.
(vii) Allegedly, when the award of the above contract by DJB was being manipulated in favour of the consortium, A2 of A5 purchased a property in USA by taking recourse to the modus operandi of buying, mortgaging, donating and selling of the property in USA to cover up the payment of illegal consideration by him to A1 through his soninlaw for misusing his official position and influencing the award of contract in favour of A5.
(viii) Allegedly the investigation on the aspects of conceptualization of project and its finalization which included the selection of technology, floating of NIT, participation of bidders, preparation of estimates, evaluation of bids, awarding of contract etc. RC No. 01A/2007/ACUIX/CBI 4/68 CC No. 21/12, CBI vs Rakesh Mohan etc. was yet to be competed as the complete execution of LRs was still awaited.
(ix) Allegedly A1, the then CEO, DJB used to get booked various air tickets through Sh P.K Dhamija, the then OSD to CEO for domestic as well as international trips for himself and his family members. Sh P.K Dhamija had worked with A1 from September, 2004 to December, 2005 as an Officer of Special Duty (OSD) in addition to the charge of the Joint Director (Revenue).
(x) Allegedly during the relevant period, Sh Sushil Mehta (A
3) and Sh Raj Kumar Dudeja (A4) acted in the capacity of Directors of M/s Kaveri Infrastructure Pvt. Ltd. (A5) while presently A2 is the Chairman and A3 is the Managing Director of A5 company. Also allegedly A2 has been responsible for overall activities of the A5 company and has been major shareholder of the A5 company right from the beginning. Allegedly A5 was maintaining a ledger account C K068 with M/s Travel Planners Pvt Ltd (TPPL) located at A244, Mahipalpur Extension, New Delhi. A1, the then CEO, was also maintaining a ledger account CM250 with M/s TPPL in the name of Mohan and family. M/s TPPL dealt in ticketing for trains as well as for domestic and international air trips, booking of hotels, visa services, freight forwarding services and foreign exchange.
(xi) Allegedly the booking/cancellation for air tickets and other services were mainly made by A2 with M/s TPPL telephonically. Besides A2, some of the bookings/cancellations have also been made RC No. 01A/2007/ACUIX/CBI 5/68 CC No. 21/12, CBI vs Rakesh Mohan etc. by A3 of KIPL as well as other persons. Sh P.K Dhamija OSD of A1 also got booked tickets for A1 and his family. M/s TPPL was under
instructions from A2 that apart from the bookings made in the account of A5 for A1 and his family, it may also provide the travel related services to A1 and his family directly, as and when request comes through Sh P.K Dhamija.
(xii) Allegedly A1 had been enjoying of hospitality of A5 company through its Directors (accused no. 2 to 4) in several ways and so far as the present case is concerned, investigation has revealed that A1 used to book air tickets for his domestic as well as international trips for himself and his family members through Sh P.K Dhamija, the then OSD to CEO from M/s TPPL, for which an amount of Rs 5,72,529/ was spent in connection with air travel charges. As per the investigating agency, the allegations had surfaced that A1 obtained air tickets worth Rs 5,72,529/ from A5 Company, without any consideration and said air tickets were for A1 himself and his relatives.
Allegedly, said amount was paid from account of accused company A5 at the behest of A2 to A4, Directors of A5 Company. Details of the aforesaid sum of Rs 5,72,529/ are as per Annexure1 of the charge sheet which are as follows:
RC No. 01A/2007/ACUIX/CBI 6/68
CC No. 21/12, CBI vs Rakesh Mohan etc.
INTERNATIONAL JOURNEYS
S.No. Name Air Line Sector Bill No. & Net Status of Status of Date of
Ticket No. date Amount (in Journey payment Journey
Rs.)
1. Rakesh Air India, Lon/Del I4502876 2,86,401/ Travelled Payment 28.10.04
Mohan 5022887630 dtd. Expenses received
and 28.10.04 of Rs
Chandra 1,43,200/
Mohan was borne
by KIPL
2. Rakesh Air India, Lon/Del I4502902 2,000/ Cancelled Cr. note
Mohan 5022887629 dtd. against no. C
01.11.04 4,06,322/ 4502754
3. Rakesh British Del/Lon I5601279 300/ Cancelled Cr. note
Mohan Airways, /Nyc/Ph dtd. against no. C
5144110440/ x/Nyc/L 15.07.05 3,74,041/ 5600938
41 on/Del
4. Rakesh British Del/Lhr/ I5601293 1200/ Cancelled Cr. note
Mohan Airways, Ewr/Ord dtd. against no. C
5144110435, /Lhr/Del 15.07.04 30,651/ 5600937
2247047506/ ,
7/8/9/10(6 Phx/Lax
tickets) /Chi/Wa
s,
Ewr/Phx
,
Del/Lhr/
Ewr/Ord
/Lhr/Del
5. Mrs Air India, Lax/Del I5604070 168074/ Travelled Payment 01.04.06
Priyanka 5197447236/ /Lax dtd. received &
Mohan 4426646458 21.02.06 24.04.06
(tickets
issued by
AI)
6. Mohit Air India, Lax/Del I5604071 1,68,073/ Travelled Payment 01.04.06
Mehra 5197447237/ /Lax dtd. received &
4426646457 21.02.06 24.04.06
(tickets
reissued by
AI )
Total4,82,847/=
RC No. 01A/2007/ACUIX/CBI 7/68
CC No. 21/12, CBI vs Rakesh Mohan etc.
NATIONAL JOURNEYS
S.No. Name Air Line & Sector Bill No. & Net Status of Status of Date of
Ticket No. date Amount Journey payment journey
(in Rs.)
7. Mrs. Air India, Lax/Bom/ I4503429 10,930/ Cancelled Cr. Note
Priyanka 5022924391 Del/Bom/ dtd. against No. C
Mohan Lax 20.12.04 200771/ 4503899
8. Mrs. Jet Airways, Del/Bom/ D 48,968/ Travelled Payment 26.01.05
Priyanka 9635717 Del 4505162 received &
Mohan & dtd. 04.02.05
Medha 10.01.05
Mohan
9. Mrs Jet Airways, Del/Bom/ D 24,484/ Travelled Payment 26.01.05
Chandra 3958690 Del 4505418 received &
Mohan dtd. 30.01.05
24.01.05
10. Mohit Air Del/Bom/ I4503794 300/ Cancelled Cr. Note
Mehra India,32520 Lax dtd. against No. C
58602 24.01.05 93,758/ 4503226
11. Priyanka Air Del/Bom/ I4504002 5,000/ Cancelled Cr. Note
Mohan India,32523 Lax against No. C
20778 99,001/ 4503893
TOTAL89,682/=
2. On completion of the investigation, chargesheet was filed by the investigating agency on 12/09/2011. The cognizance of the case was taken by my Ld. Predecessor on 26/09/2011 and accused were summoned. On appearance accused were enlarged on bail.
3. Requirements under Section 207 Cr.P.C were complied with.
CHARGES
4. In terms of order of charge dated 25/08/2012, charges for RC No. 01A/2007/ACUIX/CBI 8/68 CC No. 21/12, CBI vs Rakesh Mohan etc. offences under Sections 11 and 13 (1)(d)(ii)&(iii) punishable under Section 13 (2) of Prevention of Corruption Act, 1988 were framed against A1. Also charge for offence under Section 12 of Prevention of Corruption Act, 1988 for abetment of offence under Section 11 of Prevention of Corruption Act, 1988, was framed against A2, A3, A4 and A5 through A2, A3 and A4 Directors on 25/08/2012, to which they pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
5. To connect the accused with the offences charged, prosecution has examined in all 19 witnesses namely Sh S.G. Mulchandaney (PW1); Sh Rajesh Bhagvati Chopra (PW2); Sh M.C. Saxena (PW3); Mrs Asha Saluja (PW4); Sh Vipin Kumar (PW5); Sh Soban Singh Negi (PW6); Sh Ramesh Kumar Gupta (PW7); Sh. Vinod Kumar Sikka (PW8); Sh Prem Kumar Dhamija (PW9); Sh Pankaj Rao (PW10); Sh Abhay Singh Chauhan (PW11); Sh Anil Sikka (PW12); Sh B.S. Gothwal (PW13); Sh Tarun Minocha (PW14); Sh Ramnish (PW15); Sh Harish Arora (PW16); Sh S.K. Bali (PW17); Sh Suraj Prakash Lamba (PW18) and Inspector M.C.R. Mukund (PW19).
STATEMENTS OF ACCUSED
6. Thereafter accused persons were examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused persons. Accused persons pleaded innocence and false RC No. 01A/2007/ACUIX/CBI 9/68 CC No. 21/12, CBI vs Rakesh Mohan etc. implication.
7. Accused Rakesh Mohan (A1) stated that accounts of TPPL were fudged; the documents were false and fabricated; he had taken the two international journeys to London and Washington, which were official; the official journey to London was part of the contractual obligation in a contract taken by M/s KIPL and the other journey to Washington was official journey with approval of the competent authority in Government of NCTD and Government of India; none of the journeys undertaken by his family members were booked vide account of M/s KIPL; the journey to London was the matter of record; the second international journey to Washington was official and not booked through the account of M/s KIPL; only the payment of journey to London and back had come from M/s KIPL as part of the contractual agreement; irrelevant documents which were not part of the final report of CBI were forwarded to obtain sanction; the sanction was wrongly given; Mr. Dhamija was working in DJB as OSD to CEO, DJB and used to make bookings for official travels only; the invoices, ledger accounts of TPPL were false, forged and fabricated documents; no special meetings were arranged by Mr. Dhamija with the contractors; Sh. P.K. Dhamija only booked the official travels of CEO DJB; there was a designated time between 12.00 Noon to 01.00 pm everyday when the CEO used to meet people coming to his office with their problems; no contract agreement was put up to the CEO at any stage; prequalification documents were RC No. 01A/2007/ACUIX/CBI 10/68 CC No. 21/12, CBI vs Rakesh Mohan etc. never put up before CEO; the contract was awarded by the Board of DJB consisting of Minister Incharge Water of Government of NCTD as Chairperson; the entries were incorrect. Accused Rakesh Mohan further stated that this case had been made out by interested parties to hurt his promotional avenues; had the chargesheet not been filed he would had been promoted as Secretary, Government of India for which clearance for consideration had been received from CVC; the witnesses had deposed falsely because they were interested persons with designs and motives, at the behest of CBI; he joined as CEO Delhi Jal Board in the first week of August 2004 and relinquished charge in the first week of December 2005 and moved on to his next assignment; the tours to London and Washington were official tours taken after prior approval of the competent authority of Delhi Jal Board, Government of National Capital Territory of Delhi and the Government of India; in an ongoing contract, awarded before he assumed charge as CEO, KIPL had to take a team of DJB to London and back as part of contractual obligation; with prior intimation to the competent authority in the Government of NCTD his wife Chandra Mohan had accompanied him on a companion ticket of Air India; the applicable taxes for his wife's ticket were paid to DTTDC by him; the personal travel journeys of his family members were paid by him and his family members.
8. Accused Vijay Kataria (A2) stated that accounts of TPPL were fudged; the account statement received from TPPL was false and RC No. 01A/2007/ACUIX/CBI 11/68 CC No. 21/12, CBI vs Rakesh Mohan etc. fudged; the facts regarding journey to London were correct; Articles of Association and Annual Report of their company were correct; the company had never ever made any payment by cash to TPPL. Accused Vijay Kataria further stated that he did not know what documents were delivered by PW6 Sh Soban Singh from their office record to CBI Officials; he (A2) was knowing that Prem Kumar Dhamija was OSD to CEO but he (A2) had never gone there for payment and for release of payment they used to meet Director Member Finance; only for problems on the site they used to meet CEO and for that they used to send their visiting cards through Peon in the office; the documents of TPPL were false and fudged and had not been maintained in the normal course of business. A2 also stated that he did not know any Pankaj and company and no cash payment was given by their company KIPL to TPPL; a conspiracy was hatched by CBI and officers of DJB to falsely implicate him (A2) as he had got trapped red handed a technical member of DJB while accepting the bribe; this is a false case against him (A2) to pressurize him (A2) to make false statement in said case.
9. Accused Sushil Kumar Mehta (A3) stated that nothing was paid by KIPL for the bookings of Rakesh Mohan and family except under the contract with DJB; the account statement received from TPPL was false and fudged; KIPL only paid for one international journey as per the contract and not for any other journey of Rakesh Mohan as stated; the fact regarding journey to London was correct as it was as per RC No. 01A/2007/ACUIX/CBI 12/68 CC No. 21/12, CBI vs Rakesh Mohan etc. contract; the company had never made any payment in Cash to TPPL; he (A3) did not know any Pankaj and company; no cash payment was given by KIPL to TPPL ever; the documents of TPPL were false and entries were fudged. A3 also stated that this is a false case against him (A3) on account of animosity of DJB officials against them, who in league with CBI foisted this false case on him.
10. Accused Raj Kumar Dudeja (A4) stated that he was earlier an employee of M/s Kaveri Infrastructure Private Limited and became Director in 2004 till 2006 and thereafter he left the company; the documents Ex PW6/B (colly) appeared to be false documents; the company (KIPL) never pays by cash for anything to anyone; no cash payment was made by the company; it is a false case foisted upon him (A4) because DJB wanted to exact vengeance against Vijay Kataria (A2) and his company (A5) with which he (A4) was associated. A4 further stated that he was only the salaried employee of the company and was neither a shareholder nor beneficiary nor had done anything contrary to law.
11. M/s Kaveri Infrastructure Pvt Ltd (A5) through its Chairman Vijay Kataria stated that the bookings of Rakesh Mohan (A1) and his family had been wrongly reflected in the account of the company and there was no question of such bookings for Rakesh Mohan (A1) and his family being paid by KIPL (A5); the response received by RC No. 01A/2007/ACUIX/CBI 13/68 CC No. 21/12, CBI vs Rakesh Mohan etc. PW15 from travel agency showing large number of tickets booked in the name of A1 and his family members reflected in the account of A5 and majority by them being paid by A5, was false and fabricated and he did not know regarding maintenance of separate account for Rakesh Mohan (A1); the account statement Ex PW6/K received from TPPL was false and fabricated; the collected documents were false and fudged; there was no verification made by PW19 Inspector Mukund; no inquiries were made by PW19 Inspector Mukund or by CBI with the company (A5); for journey to London as the condition of contract, the facts were correct; the cheques Ex PW4/A and Ex PW4/B issued by the company (A5) were not for the tickets of Rakesh Mohan (A1) and his family but for the liabilities of the company (A5) towards TPPL; as TPPL was doing various jobs for the company (A5) including custom clearances, the company (A5) was paying on account and part payments in lump sum amounts like Rs 5 lacs, Rs 3 lacs etc; the company (A5) had written to TPPL by various letters that the accounts had not been properly rendered but there was no response from TPPL; this had already been brought to the notice of CBI; it was correct that the company (A5) was one of the client of TPPL providing various services and also custom clearance services, however, payments were made only by cheques and never ever by cash; the accounts maintained by TPPL for the company (A5) were false and fudged; unfortunately the CBI never ever in the course of investigation asked for accounts from them (A5) nor made any inquiries with them to foist a false case against them; the records of RC No. 01A/2007/ACUIX/CBI 14/68 CC No. 21/12, CBI vs Rakesh Mohan etc. bookings as to the officials of A5 as shown to have been written on the invoices by TPPL were false and all documents provided by TPPL were false and fudged; the company (A5) had never ever booked such tickets and the tickets in question were false documents; the company had not paid any amount in cash nor ever booked such tickets; award of contract was a matter of record, however, he (PW5) did not know who in DJB processed the award of tender and who was the CEO of DJB then; the entries in the books of account of TPPL were forged and fudged; the company (A5) had no dealing whatsoever with any Pankaj and company and he (A2 for A5) did not know about any such company; no cash payments had been made ever by the company. A2 for A5 further stated that it is a false case made against the company (A5) on account of animosity of some DJB officials in league with CBI officials; no inquires ever were made with the company (A5) in regard to the issues for which the chargesheet was filed; the company (A5) had been embroiled in a false case.
DEFENCE EVIDENCE
12. Accused persons entered into their defence and examined Sh. Arvind Kumar as DW1; Sh. Ashok Kumar Batra as DW2; Sh. Ashish Kumar Mishra as DW3; Ms. Puneet Sandhu as DW4; Sh. Amit Kumar Jain as DW5; Sh. S.K. Garg as DW6; Sh. Rajesh Juneja as DW7; Sh. Deshraj Singh as DW8; Sh. Aditya Pathak as DW9; Sh. Ravinder Goel as DW10 and Sh. Prashant Kumar Vivek as DW11.
RC No. 01A/2007/ACUIX/CBI 15/68
CC No. 21/12, CBI vs Rakesh Mohan etc.
ARGUMENTS
13. I have heard the arguments of Sh Anil Tanwar, Ld. Public Prosecutor for CBI, Sh Satish Tamta and Sh R.K Handoo, Ld. Defence Counsels for the accused and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
14. Ld. PP for CBI argued that by the documentary evidence and the deposition of prosecution witnesses, the prosecution has been able to prove that (1) public servant A1, for himself and his relatives had accepted/obtained air tickets from TPPL inter alia through his OSD PW9 P.K Dhamija for the eleven journeys, international and national, on some of which A1 and/or his relatives travelled and some were cancelled, with the aid and abetment of A2 to A4, Directors of A5 company, for which payments were made by A5 company to TPPL by cheques and cash, in terms of the charge framed; (2) fares of air tickets/cancellation sums of aforesaid journeys were so accepted/obtained by A1 without consideration from A5 company with the aid of its Directors A2, A3 and A4; (3) by abusing, holding office as public servant, A1 so obtained for himself and his relatives aforesaid air tickets worth Rs 5,72,529/, whose sum was paid by A5 with the aid of its Directors A2, A3 and A4 without any public interest and (4) A2, A3, A4 and A5 through A2, A3 and A4 intentionally aided A1 by booking/cancellation of aforesaid air tickets worth Rs 5,72,529/ from TPPL for A1 and his relatives by spending said sum from accounts and RC No. 01A/2007/ACUIX/CBI 16/68 CC No. 21/12, CBI vs Rakesh Mohan etc. funds of A5. Ld. PP for CBI prayed for conviction of the arraigned accused for the charges framed.
15. Ld. Counsel for A1 argued that (1) it was primary duty of prosecution to establish when was the NIT issued, processed and there upon the link of A1 and other arraigned accused was to be established by the prosecution, which it failed to do so; (2) the first information report incorporated the allegations of awarding of contract by DJB to KIPL for Trenchless Renovation of Water Rising Mains through Spray Epoxy Resin and Rapid Setting Polymetric Lining System at an exorbitant amount of Rs. 35.84 crores by manipulations in favour of consortium of A5 by active participation of A1, CEO of DJB; for which allegations the investigation was yet allegedly incomplete as complete execution of letter of rogatories was still awaited, the allegations against A1 incorporated in the framed charge were not mentioned in the lodged FIR, it was the foremost duty of the investigating agency to have vouched the genuineness of the computer generated electronic records of the travel agent TPPL, which was not done; (3) persons who made bookings of air tickets in question with TPPL and/or persons/employees of TPPL who received bookings of air tickets in question were neither examined in the course of investigation nor cited nor examined in the course of trial; (4) the computer prints out of ledger, invoices, bills, credit notes of TPPL were false, fudged and fabricated documents and were not accompanied by any requisite certificate under Section 65 B of Evidence Act, so RC No. 01A/2007/ACUIX/CBI 17/68 CC No. 21/12, CBI vs Rakesh Mohan etc. merited rejection per se; (5) the hard disk of the computers of TPPL, the travel agent were neither seized nor retrieved to vouch for the authenticity of the accounts of TPPL, whose copies have been brought in the prosecution evidence, which are unreliable, their various entries do not match with instructions, even some of them are devoid of necessary details including that of the booking person of KIPL and the booking receiving person of TPPL; (6) for international journey number one, A1 had utilized the companion scheme of Air India, regarding which DW7 in defence evidence proved on record that taxes were paid for the companion ticket utilized by wife of A1; (7) the investigating agency had not brought on record any Flight Manifest to prove whether the journeys were performed, as alleged in the prosecution case; (8) cheque no. 386758 of Rs 2,21,663/ issued from saving account of A1 and his wife in Central Bank of India, Khan Market, New Delhi was debited to said account on 28/05/2005 as per Ex DW6/C brought on record by DW6 but yet the travel agency TPPL had wrongly adjusted said sum of Rs 2,21,663/ towards journeys performed by A2 and others, which journeys in no manner were concerned with A1 or his family and nor the persons who so travelled, were in any manner concerned with A1 in respect of said journeys, which infact depicted as a consequence that KIPL (A5) was not paying for A1 and his family but rather A1 was paying for KIPL; (9) Rs 1,54,700/ were paid by Sh Mohit Mehra (son inlaw of A1) vide cheque no. 031510, copy Ex DW4/C, dated 05/04/2006 drawn on Citi Bank towards air fare for himself and his wife RC No. 01A/2007/ACUIX/CBI 18/68 CC No. 21/12, CBI vs Rakesh Mohan etc. namely Priyanka Mohan (daughter of A1) to TPPL but appropriate credit was not given to such payment; (10) even the investigating agency deceived sanctioning authority to obtain sanction; (11) A1 was treated in partisan manner as on similar type of allegations, closure report was filed by CBI against the accused D.K Barik, the Dy. SP of CBI which was accepted in terms of order Ex DX2 and Ex DX1; (12) this case had been made out by interested parties to hurt promotional avenues of A1, had the chargesheet not been filed A1 would had been promoted as Secretary, Government of India for which clearance for consideration had been received from CVC; (13) the witnesses had deposed falsely because they were interested persons with designs and motives, at the behest of CBI; (14) A1 joined as CEO Delhi Jal Board in the first week of August 2004 and relinquished charge in the first week of December 2005 and moved on to his next assignment; (15) the tours to London and Washington were official tours taken by A1 after prior approval of the competent authority of Delhi Jal Board, Government of National Capital Territory of Delhi and the Government of India; (16) in an ongoing contract, awarded before A1 assumed charge as CEO, A5 had to take a team of DJB to London and back as part of contractual obligation; (17) with prior intimation to the competent authority in the Government of NCTD wife of A1 had accompanied him on a companion ticket of Air India; (18) the applicable taxes for the ticket of wife of A1 were paid to DTTDC by A1 and (19) the personal travel journeys of family members of A1were paid by A1 and his family members. Ld Counsel for A1 has RC No. 01A/2007/ACUIX/CBI 19/68 CC No. 21/12, CBI vs Rakesh Mohan etc. prayed for acquittal of A1 as prosecution has failed to prove its case beyond reasonable doubt.
16. Ld. Counsel for A2 to A5 argued that (1) the accounts of TPPL were fudged; (2) the account statement received from TPPL was false and fudged; (3) A5 had never ever made any payment by cash to TPPL; (4) A2 to A5 were not knowing any Pankaj and company; (5) a conspiracy was hatched by CBI and officers of DJB to falsely implicate A2 to A5 as A2 had got trapped red handed a technical member of DJB while accepting the bribe so as to pressurize A2 to make false statement in said other case; (6) the bookings of A1 and his family had been wrongly reflected in the account of the A5 maintained by TPPL and there was no question of such bookings for A1 and his family being paid by A5; (7) the account statement Ex PW6/K received from TPPL was false and fabricated and the revised statement Ex PW12/DA was having two more entries in it than they were in Ex PW6/K for which there was no plausible explanation; (8) collected documents of TPPL were false and fudged; (9) there was no verification made by PW19 Inspector Mukund or first IO PW15 the then Inspector Ramnish; (10) no inquiries were made by PW19 Inspector Mukund or by CBI with A5; (11) the cheques Ex PW4/A and Ex PW4/B issued by A5 were not for the tickets of A1 and his family but for the liabilities of A5 towards TPPL, as TPPL was doing various jobs for A5 including custom clearances; (12) A5 was paying on account and part payments in lump sum amounts like Rs 5 RC No. 01A/2007/ACUIX/CBI 20/68 CC No. 21/12, CBI vs Rakesh Mohan etc. lacs, Rs 3 lacs etc; (13) the records of bookings as to the officials of A5 as shown to have been written on the invoices by TPPL were false and all documents provided by TPPL were false and fudged; (14) A5 had never ever booked such tickets and the tickets in question were false documents and (15) A5 had no dealing whatsoever with any Pankaj and company. Ld. Counsel for A2 to A5 also argued that no preliminary enquiry was conducted against public servant A1 and no prior sanction as envisaged under Section 6A of DSPE Act was obtained by investigating agency making the proceedings void abinitio. Ld. Counsel for A2 to A5 has prayed for acquittal of A2 to A5 as prosecution has failed to prove its case beyond reasonable doubt.
APPRECIATION OF EVIDENCE
17. PW1 Sh S.G. Mulchandaney, Under Secretary to the Government of India in the Department of Personnel and Training deposed that the entire set of documents provided by CBI was forwarded on file to the Prime Minister's office (PMO) for the purpose of consideration and decision; after the said file was received back on approval from the PMO, PW1 signed the sanction order no. 107/6/2010 AVD.I, dated 29.08.11, Ex. PW 1/A; by order and in the name of the President, as the sanction of Central Government under Section 19 of the Prevention of Corruption Act, 1988 for prosecuting A1 for offences punishable under Section 11 and Section 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988.
RC No. 01A/2007/ACUIX/CBI 21/68 CC No. 21/12, CBI vs Rakesh Mohan etc.
18. It is the admitted case of prosecution that no preliminary inquiry was conducted before the registration of the FIR in the case in hand. In the course of arguments the investigating officer PW19 Inspector M.C.R Mukund had shown from secret file no. 03/Temp/SIR/06/ACUVIII dated 07/12/2006, a letter dated 13/04/2007 of Ministry of Home Affairs of Government of India, addressed to Director CBI by an Under Secretary of Government of India conveying the approval under Section 6A of The Delhi Special Police Establishment Act of the competent authority for registration of case under Section 120B IPC, 420B IPC; Section 13(2) read with Section 13 (1)(d) and Section 11 of Prevention of Corruption Act against A1. Accordingly, I find no force in the arguments of Ld. Counsel for A2 to A5 that no prior sanction as envisaged under Section 6A of DSPE Act was obtained by investigating agency making the proceedings void abinitio. Even said plea was raised by Ld. Counsel for A2 to A5 for the first time at the stage of Final Arguments and not before.
19. PW2 Sh. Rajesh Bhagvati Chopra, Vice President, Air India Singapore Air Terminal Services (AISATS) deposed that he had issued letter Ex PW2/A (D13), dated 11.09.2009 to CBI in reply to letter of CBI. As per Ex PW2/A, the flight manifest records were not kept by Air India for more than six months and these files were destroyed from time to time so these could not be provided to the IO PW19. Ex PW2/A also finds mention that with great difficulty the information was salvaged RC No. 01A/2007/ACUIX/CBI 22/68 CC No. 21/12, CBI vs Rakesh Mohan etc. from the computer confirming Ms. Priyanka Mohan (daughter of A1) and Mr. Mohit Mehra (soninlaw of A1) having travelled on AI137 on 24/04/2006 Delhi to Los Angeles in business class having seat numbers 12JK. Ticket numbers on which said journey was undertaken were not provided in Ex PW2/A.
20. PW3 Sh. M.C. Saxena, the then Assistant Registrar of Companies deposed that as per certificate of incorporation, Ex. PW 3/A and record, M/s Kaveri Borewells Private Limited was incorporated on 14.01.1994 and the name of the said company was subsequently changed to M/s Kaveri Infrastructure Private Limited; fresh certificate of incorporation was issued on 13.03.2001; the name was again changed to M/s Water Flow Infrastructure Private Ltd. w.e.f. 27.02.2012. PW3 also deposed that as per copy of Memorandum of Association of A5, Ex. PW 3/B, the Directors of the aforesaid company mentioned were accused A2, A3, Ms. Asha Kataria and Karam Devi. PW3 also proved (1) Ex PW3/C, Articles of Association of A5; (2) Ex. PW 3/D, copy of Annual Report of A5 for the year 2004, received in the office of ROC on 29.09.2004, running into eleven sheets and as per the same, the Directors of said company were A4, A3 (later on appointed as Managing Director on 12/03/2004) and A2. PW3 also proved Ex PW3/E, copy of Form 20B along with Annual Return of A5 for the year 2006 as on 30/09/2006, and as per the same, the Directors of said company were A3, A4 and Anurag Grover; details of shareholders as per annual return dated RC No. 01A/2007/ACUIX/CBI 23/68 CC No. 21/12, CBI vs Rakesh Mohan etc. 30.09.2006 were A2, A3, Asha Kataria, Anil Kumar, Tarun Kumar and Madan Mohan Vasdev. PW3 also proved Ex. PW 3/F, copy of annual return of A5 as on 30.09.2007; Directors and Shareholders of said company mentioned were same as they were in Ex. PW 3/E. PW3 also proved Ex. PW 3/G, the copy of Form 32 dated 04.06.2007 (part of D
14) relating to the appointment of A2 as Additional Director of A5; also as per records of Registrar of Companies, A2 was Director of A5 from 14/01/94 till 12/03/2004 and from 04/06/2007 till date though the name of M/s KIPL (A5) was again changed to M/s Water Flow Infrastructure Private Ltd. w.e.f. 27.02.2012.
21. PW4 Mrs. Asha Saluja had delivered Ex.PW4/C (D22) i.e certified statement of accounts of A5 for the period of 01.12.2004 to 06.06.2009 to the branch manager PW17 after taking the print out from the computer, to be given to the CBI Officials. PW 17 Sh. S.K. Bali, the then Senior Manager, Punjab National bank, Chandan Hola branch gave statement of account Ex. PW 4/C, part of D22, to IO. PW 17 proved the certified copy of statement of account no. 3078008700000685 of A5 for period 05.12.2004 to 18.08.2008 and certificate, which are collectively Ex. PW 17/A (colly). PW 17 also gave letter (D12) dated 25.08.09, Ex. PW 17/B with two cheques Ex. PW 4/A and Ex. PW 4/B and statement of account of A5 Ex. PW 4/C to CBI.
22. PW5 Sh Vipin Kumar, Customer Care Officer, PNB, Sheikh RC No. 01A/2007/ACUIX/CBI 24/68 CC No. 21/12, CBI vs Rakesh Mohan etc. Sarai, Delhi gave from bank record the cheque no. 155609 of Rs 3 lacs dated 09/03/2006 issued by A5 in favour of TPPL to IO, which cheque (D24) was seized vide memo (D23) dated 05/06/2009; D23 and D24 are collectively Ex PW5/A (colly). As per PW5, cheque part of Ex PW5/A (colly) and Ex PW18/A the computer generated statement of account no. 1504008700001853 of period 10.03.06 to 15.03.06 attested by PW18 Sh S.P Lamba was delivered to IO with letter Ex PW16/A of PW16 Sh Harish Arora, Chief Manager, PNB, Chirag Delhi Branch. PW16 placed on record the certified copy of the said statement of account of A5 with certificate of present Chief Manager as Ex PW16/B(colly).
23. PW9 Sh Prem Kumar Dhamija, the then Officer on Special Duty (OSD) to A1 deposed that he had inter alia booked tickets for official tours of A1 from DTTDC and TPPL on telephone; bills of the said booked tickets for official tours were sent to Accounts Section of their Department. PW9 also deposed that Mr. Sikka was Director of TPPL and he (PW9) knew said Mr. Sikka (PW8) as once he had come to his office and told him (PW9) that he (PW8) booked tickets for other Government Agencies and if PW9 wanted, he (PW9) can also book tickets from them; Mr. Sikka (PW8) told PW9 that in case tickets were booked from him then he will give some discount also; PW9 contacted A1 and told aforesaid facts told to PW9 by Mr. Sikka; A1 told PW9 that A1 can get the tickets so booked through Mr. Sikka of TPPL;
RC No. 01A/2007/ACUIX/CBI 25/68 CC No. 21/12, CBI vs Rakesh Mohan etc. simultaneously, A1 also directed PW9 that sometimes, if need be, then the personal tickets of A1 and his family can be booked from DTTDC or Mr. Sikka of TPPL; PW9 had no knowledge how the payments of the tickets of personal visits of A1 and his family were made. PW9 had also given statement under Section 164 Cr.P.C, Ex PW9/A, dated 11/02/2010 to the Ld. Magistrate. In his entire deposition, PW9 did not whisper of having done any bookings of tickets of journeys, National or International, as detailed in the table in the end of para 1 of this judgment.
24. PW10 Sh Pankaj Rao, Accountant of A5 inter alia deposed that he could only identify the signatures of Directors of A5 which were done in his presence on the balance sheets and other documents.
25. PW 11 Sh. Abhay Singh Chauhan, Assistant Engineer in DJB deposed that the process of tender of Trenchless Renovation of Water Rising Mains through Spray Epoxy Resin and Rapid Setting Polymetric Lining system was floated in year 2004 and the tender was awarded in June 2005 to A5 and M/s Pipe Way Limited jointly; which process and award of tender was done by division of PW 11 and during said period the CEO of DJB was A1; the said file for award of tender goes from bottom to the Board through CEO, DJB.
26. PW 13 Sh. B.S. Gothwal, Assistant Director, FRRO sent a RC No. 01A/2007/ACUIX/CBI 26/68 CC No. 21/12, CBI vs Rakesh Mohan etc. letter (D15) dated 03.11.2009 with four sheets enclosures collectively Ex. PW 13/A (Colly) to SP of CBI containing the details of arrival and departure of passengers, A1, his daughter Priyanka Mohan and his son inlaw Mohit Mehra from IGI Airport, Delhi. PW 13 also sent letter (D
16) dated 30.03.2010 with 11 sheets enclosures collectively Ex. PW 13/B (Colly) to SP of CBI with regard to details of arrival and departure records in the name of A1, his wife Mrs. Chandra Mohan, his daughter Priyanka Mohan and his soninlaw Mohit Mehra, maintained at IGI Airport, New Delhi for the period from 01.04.2004 to 31.12.2007. PW13 further deposed that the stated departure dates and flight numbers mentioned in the portion encircled X at page 4 of the list in Ex PW13/A(colly) were the likely departure dates. Also PW13 deposed that the list in Ex PW13/A (colly) was not the extract of flight manifest and was only computer generated record maintained by several staff members of FRRO at IGI Airport. PW13 was unable to tell which of the staff members had made the entries so depicted in the enclosures of Ex PW13/A (colly) and Ex PW13/B (colly). In the documents brought on record aforesaid by PW13, there is no mention of any ticket number of the person in the arrival / departure details. Since as per PW13, the information given in aforesaid documents contained only the likely departure dates, it is also not proved on record that on such given dates, the named persons therein had undertaken the journeys named. Besides that, flight manifest of the aircraft by which journeys were undertaken has not been seized nor produced nor proved for stated journeys RC No. 01A/2007/ACUIX/CBI 27/68 CC No. 21/12, CBI vs Rakesh Mohan etc. undertaken.
27. PW 14 Sh. Tarun Minocha, Trade Sales Manager in British Airways deposed that Ms. Judy Jarvis, the then Regional Commercial Manager was his senior and he had worked with her and presently Ms. Judy Jarvis was based in London since December 2011 or January 2012; PW 14 also deposed that a letter (D11) dated 01.10.2009, Ex. PW 14/A was issued by said Ms. Judy Jarvis and was given to IO and said letter contained the details of journeys of A1 of DelhiLahore dated 28/02/2005 and LahoreDelhi dated 10/03/2005.
28. PW 12 Sh. Anil Sikka deposed that he had joined M/s Travel Planners Pvt Ltd (TPPL) in year 1992 as an Accountant; which company inter alia dealt in ticketing for air tickets for international as well as domestic journeys. As an accountant the work profile of PW12 was to maintain the books of account including ledger, to look after the payments to be made and to be received. PW12 deposed that staff of TPPL who issues tickets, gives the tickets after issuance to billing staff in the office; billing staff in the offices makes entry in the computer system and automatically in the ledger in the computer, the entry is reflected in the account of the party concerned. In terms thereof, by necessary implication, there must have been a software installed in the computer systems of TPPL by operation of which upon making of any entry in the computer system, the effect of said entry is reflected automatically in the RC No. 01A/2007/ACUIX/CBI 28/68 CC No. 21/12, CBI vs Rakesh Mohan etc. account of the party concerned in the ledger in the computer.
29. PW12 deposed that he had taken the print outs of documents (1) D2, Ex. PW 6/A (colly) i.e., computerized copies of account of A5 in ledger pertaining to year 200405 (w.e.f. 01/04/2004 to 31/03/2005), invoices, bills, credit notes of books of TPPL; (2) D3, Ex. PW 6/C (colly) i.e., computerized copies of account of A5 in ledger pertaining to year 200304 (w.e.f. 01/04/2003 to 31/03/2004), invoices, bills, credit notes of books of TPPL; (3) D4, Ex. PW 6/B (colly) i.e., computerized copies of account of A5 in ledger pertaining to year 200506 (w.e.f. 01/04/2005 to 31/03/2006), invoices, bills, credit notes of books of TPPL; (4) D5, Ex. PW 6/D (colly) i.e., computerized copies of account of A5 in ledger pertaining to year 200607 (w.e.f. 01/04/2006 to 31/03/2007), invoices, bills, credit notes of books of TPPL; (5) D6, Ex. PW 6/E (colly) i.e., copies of ledger account no. CM250 of Mohan and Family, invoices, credit notes of TPPL; (6) D7, Ex. PW 6/F (colly) i.e., copies of ledger account no. CK068 pertaining to period 01/04/2007 to 27/06/2007, invoices, credit notes of A5 in books of TPPL from computer system of office of TPPL and had given them to PW6 S.S. Negi; which all documents were maintained in office of TPPL in the normal course of business and whenever any of these documents were demanded it was given to the relevant person on demand. PW6 Soban Singh Negi, the Manager Administration in TPPL handed over documents Ex PW6/A (colly) to Ex PW6/F (colly) aforesaid and also two RC No. 01A/2007/ACUIX/CBI 29/68 CC No. 21/12, CBI vs Rakesh Mohan etc. cash receipt books Ex PW6/J (D8) and Ex PW6/H (D9) with letter D 17, Ex PW8/B, signed by PW8 to IO of CBI. Ex PW6/H and Ex PW6/J were seized vide memo Ex PW6/G by PW19 IO Inspector M.C.R Mukund. PW8 Vinod Kumar Sikka, Director of TPPL deposed that (1) documents Ex PW6/A (colly) to Ex PW6/D (colly) were given to CBI officials vide letter Ex PW8/A (D28); (2) documents Ex PW6/E (colly) and Ex PW6/F (colly) were given to CBI officials vide letter Ex PW8/C (D20), through PW6. PW6 also deposed that the computerized statement Ex PW6/K (D21) was prepared by their Accounts Department and was of tickets booked / cancelled on behalf of A5 for financial years 200405/200506 where at portion encircled X was the summary of total billing amount and details of the payment receipts against the bills detailed therein, which were verified by PW6 and then PW6 signed it. Ex PW6/K was given by PW8 with letter Ex PW8/D (D21), dated 17/08/2007 to Additional SP, CBI. PW8 deposed that he had no personal knowledge with regards to information in Ex PW8/B nor he had seen the referred cash receipts in Ex PW8/B. Also PW8 deposed that the documents Ex PW8/A to Ex PW8/D were put up before him by PW6 after taking it out from the records and the computer and he (PW8) had only signed them.
30. PW6 also deposed that names of the requesting officials of A5 were written on the invoices which were raised on A5 for the services provided by TPPL and Ms. Sweety and Mr. Dhamija were some of those RC No. 01A/2007/ACUIX/CBI 30/68 CC No. 21/12, CBI vs Rakesh Mohan etc. persons, who used to make such request for issuance of air tickets and rail tickets. Also PW6 deposed that he was not knowing A2 nor had ever met him but had heard his name and seen his name in their records while from the office of A2 they used to receive bookings for air tickets and rail tickets. PW6 also deposed that the staff at the counter of TPPL used to attend the phone calls coming from the office of A5 company. PW6 deposed that he had no personal knowledge in respect of documents Ex PW6/A (colly) to Ex PW6/K. PW6 stated that from A5 company, their company TPPL had instruction to provide air tickets for international as well as domestic journeys to Mohan and Family which included A1, Priyanka Mohan, Medha Mohan and Mohit Mehra but PW6 was unable to tell which official of A5 company had given such instructions, which instructions as per PW6 were oral. PW6 also clarified that he was not given aforesaid instructions by any official of A5 nor in his presence any such instructions were given to any official of TPPL nor he had heard such instructions being given by any official of A5 to any official of his company TPPL. PW6 was not knowing whose employees said Dhamija and Anurag Grover were.
31. PW12 also deposed that there were five accountants in TPPL amongst which two accountants did the job of billing and three accountants looked after the payments received from the parties and the payments made/to be made to the vendors while he as an accountant of TPPL used to look after the accounts including such entries after the RC No. 01A/2007/ACUIX/CBI 31/68 CC No. 21/12, CBI vs Rakesh Mohan etc. entries were made in the computer system in his office. As per PW12, billing entries were only made by the staff looking after the billing while remaining entries were done by the other three accountants including him (PW12). PW12 deposed that in case of a corporate client, private or government, an agreement was made between M/s TPPL and such client for service of air tickets on the specific request on day to day basis. PW12 had no knowledge of any agreement between A5 and TPPL for such air tickets. As per PW12, there was no such agreement of TPPL with Delhi Jal Board (DJB). In the course of investigation, no document pertaining to any agreement inter se (1) TPPL and A5 or (2) TPPL and DJB for providing of service of air tickets to clients i.e., A5 or DJB was unearthed, seized, relied, produced or proved.
32. PW6 deposed that the invoice for the cost of the ticket booked in the name of A1 and his wife was at page 38 of Ex. PW 6/A (colly); the said ticket was booked by A5 through PTA. Perusal of said invoice reveals it to be bearing no. I4502876, dated 28/10/2004 in respect of the International Journey at serial no. 1 in the table given at the end of para 1. PW6 deposed that he was not knowing what PTA means. Total fare against ticket of A1 mentioned therein is Rs 2,86,401/ while against fare of ticket of wife of A1 there is mention of "0". In the column of Airline in said invoice there is mention of "098". PW12 deposed that since the said invoice was a single document, so the fare of both the passengers was mentioned collectively against the name of the RC No. 01A/2007/ACUIX/CBI 32/68 CC No. 21/12, CBI vs Rakesh Mohan etc. first passenger and against second passenger Zero Fare was mentioned as only one airline document is issued for both passengers. PW12 also added that the fare of the second passenger was not complementary in this matter and the fare Rs 2,86,401/ was for two passengers. Aforesaid invoice is unsigned. None of the prosecution witnesses have deposed as to what PTA stands for or means. Apparently PTA does not appear to be name of any individual nor the initials of A5 are PTA nor A1 nor his OSD PW9 had initials PTA. None amongst the prosecution witnesses including PW6, PW8 and PW12 had themselves received the booking of the tickets in the aforesaid invoice at page 38 of Ex PW6/A (colly). PW12 deposed that only their ticketing staff knew better about charge of such high fare by the Airline since the invoice at page 39 of Ex PW6/A (colly), which was for the International Journey described at the serial no. 2 of the table at the end of the para 1, was for Rs 4,06,322/ purportedly for A1 alone for the journey from London to Delhi. The invoice at page 38 of Ex PW6/A (colly) was also for the journey from London to Delhi. None of the said ticketing staff of TPPL which booked tickets described in the aforesaid invoices at pages 38 and 39 of Ex PW6/A (colly) was examined during the course of investigation, cited or examined as prosecution witness to elicit inter alia as to who had booked the said tickets or under whose instructions said tickets were so booked. Even credit note no. C4502754 at page 45 of Ex PW6/A (colly) purportedly for cancellation of the ticket detailed in invoice at page 39 of Ex PW6/A (colly) is unsigned nor finds mention as to under whose RC No. 01A/2007/ACUIX/CBI 33/68 CC No. 21/12, CBI vs Rakesh Mohan etc. instructions the cancellation was done. None amongst PWs 6,8 and 12 gave any description as to under whose instructions the tickets detailed in invoices at pages 38, 39 of Ex PW6/A (colly) and the credit note at page 45 of Ex PW6/A (colly) were so booked/cancelled. Even PWs 6,8 and 12 had not done the booking/cancellation of said tickets themselves. So the version of PWs 6,8 and 12 regarding such tickets detailed in invoices at pages 38, 39 of Ex PW6/A (colly) and the credit note at page 45 of Ex PW6/A (colly) is their interpretation of these documents or the hearsay evidence which per se is inadmissible being hit by Section 60 of Evidence Act. As per PW6, these aforesaid invoices at pages no. 38, 39 of Ex PW6/A (colly) and the credit note at page 45 of Ex PW6/A (colly) besides other documents were generated from the computer by PW12 and PW12 had given them to PW6 who in turn had given them to IO. These invoices at pages 38, 39 of Ex PW6/A (colly) and the credit note at page 45 of Ex PW6/A (colly) do not find mention on them the date when they were generated nor a certificate by the person generating them or any certificate in terms of the prerequisites of Section 65B(4) of the Evidence Act. It is the case of prosecution that for the International Journey at serial no. 1 in the table at the end of para no. 1 of the judgment, out of the ticket expenses of Rs 2,86,401/; sum of Rs 1,43,200/ was borne by A5. In the extracts of the ledger part of D2 Ex PW6/A (colly) at page no. 2 there is debit entry of Rs 2,86,401/, dated 28/10/2004 in the account of A5. Ticket no. 5022887630 is alleged to be issued for the aforesaid International Journey detailed in serial no. 1 in RC No. 01A/2007/ACUIX/CBI 34/68 CC No. 21/12, CBI vs Rakesh Mohan etc. the table at the end of para no. 1 of the judgment. There is no credit entry of Rs 1,43,201/ in the extracts of the ledger part of D2 Ex PW6/A (colly) from the account of A5 so as to correspondingly reflect that sum of Rs 1,43,200/ was borne by A5. It is the own case of prosecution that in terms of the contract agreement dated 10.06.05, copy Ex. PW 10/B (part of D19), between Delhi Jal Board (DJB) and A5, the expenses of journey of A1 to London were to be borne by A5. For said journey detailed in the International Journey at serial no. 1 in the table at the end of para no. 1 of the judgment, the approval was accorded by Hon'ble Lt. Governor, Delhi as is borne out of office order, copy Ex DW5/B, dated 09/11/2004 of Director (Admn. & Personnel) DJB, given to A1 with Ex DW5/A under RTI Act 2005. DW8 Sh Deshraj Singh, Head Clerk from Delhi Secretariat proved on record in Ex DW8/A (colly), the copy of fax copy from Sh Satish Bhushan, Section Officer (EM) Delhi Secretariat, dated 24/02/2005 intimating the approval of Government of India for the official travel of A1 to USA and UK. DW5 Amit Kumar Jain, Assistant Commissioner (Land & Estate) DJB also proved on record as Ex DW5/C, the request of A1 dated 11/10/2004 to Secretary (Services), GNCTD, copy to Member (Administration) for taking on record the proposal of A1 to take along his wife Mrs. Chandra Mohan to UK, etc., with the mention that they will travel by Air India, to avail the non revenue companion ticket of Air India under their ongoing scheme while all other expenses of wife of A1 were to be borne and discharged by A1 out of his savings and to ensure transparency, all ticketing would be RC No. 01A/2007/ACUIX/CBI 35/68 CC No. 21/12, CBI vs Rakesh Mohan etc. done through DTDC; such request was to be taken on record, in terms of CCS (Conduct) Rules and at the bottom of it various purported signatures of Secretary (Services) GNCTD, Member (Administration) etc. with stamp impressions of Delhi Jal Board are apparent. In terms thereof, A1 had given prior intimation for taking along his wife inter alia to the trip of London. PW2, the Vice President in Air India Singapore Air Terminal Services (AISATS) inter alia deposed that Air India also had a scheme of non revenue companion tickets against revenue tickets with certain preconditions. PW19 IO Inspector M.C.R Mukund also deposed that various airlines issued complementary companion tickets for booked tickets. DW7 Sh Rajesh Juneja, Manager Travel of DTTDC proved letter Ex DW7/A, dated 04/05/2007 and deposed that after issuance of Ex DW7/A they had received sum of Rs 39,200/ in cash on 07/05/2007 from Mrs. Chandra Mohan, wife of A1 against receipt Ex DW7/B, dated 07/05/2007, which sum included Rs 5,188/, the charges for the taxes on the companion ticket issued on, "Nil fare" basis by Air India, which companion ticket was with the main ticket of international journey of A1 by Air India. DW7 also proved on record the document Ex DW7/C, copy of ticket for travel between DelhiMumbai ParisLondon Delhi for journey dated 17/10/2004 of A1 and Mrs Chandra Mohan, wife of A1 starting from Delhi having there a stamp impression, "C/S Utilized"
meaning companion scheme was utilized by the ticket holder. As per DW7, for the said companion ticket only the taxes were to be paid and it was Zero fare ticket and for the such tax Rs 5,188/ of said companion RC No. 01A/2007/ACUIX/CBI 36/68 CC No. 21/12, CBI vs Rakesh Mohan etc. ticket, the demand was raised in letter Ex DW7/A for which payment was received vide receipt Ex DW7/B of sum of Rs 39,200/ inclusive of said tax of Rs 5,188/. It is proved on record that for the aforestated International Journey number one, A1 had utilized the companion scheme of Air India, regarding which DW7 in defence evidence proved on record that taxes were paid by wife of A1 for the companion ticket utilized by her for said journey.
33. PW6 deposed that the invoices at pages 86, 87 and 88 of Ex. PW 6/B (colly) were for the cost of the tickets booked in the name of A1; the said referred tickets were booked by A5. The referred invoices pertained to the purported International Journeys detailed in serial no. 3 and 4 of the table at the end of para 1 which were later on allegedly cancelled. The said invoices are unsigned and do not find mention of the name of the person(s) who had made the bookings of the said air tickets. The credit notes at page 85 and 84 respectively of Ex PW6/B (colly) are purportedly of cancellation of the tickets detailed in the invoices aforesaid at page 86, 87 and 88 of Ex PW6/B (colly). Even the said credit notes are unsigned. Neither from these documents nor from deposition of any of the prosecution witness it has been elicited or proved as to which official of TPPL received the instructions for booking or cancellation of the tickets mentioned in the invoices and the credit notes herein above said in this para. Even there is no oral or documentary evidence on record as to which amongst the arraigned accused had made RC No. 01A/2007/ACUIX/CBI 37/68 CC No. 21/12, CBI vs Rakesh Mohan etc. the bookings or cancellation of the aforesaid tickets detailed in the aforesaid invoices and credit notes in this para.
34. PW6 deposed that the invoices at pages 142 and 143 of Ex. PW 6/B (colly) were for the cost of the tickets booked in the name of daughter and son in law respectively of A1; the said referred tickets were booked by A5. The referred invoices pertained to the purported International Journeys detailed in serial no. 5 and 6 of the table at the end of para 1. The said invoices are unsigned and do not find mention of the name of the person(s) who had made the bookings of the said air tickets. Neither from these documents nor from deposition of any of the prosecution witness it has been elicited or proved as to which official of TPPL received the instructions for booking of the tickets mentioned in the invoices herein above said in this para. Even there is no oral or documentary evidence on record as to which amongst the arraigned accused had made the bookings of the aforesaid tickets detailed in the aforesaid invoices in this para.
35. PW6 deposed that the invoice at page 44 of Ex. PW 6/A (colly) was for the cost of the ticket booked in the name of Mrs. Priyanka Mohan, daughter of A1; the said referred ticket was booked by A5 through PTA; subsequently said ticket was canceled. The referred invoice pertains to the purported National Journey detailed in serial no. 7 of the table at the end of para 1. The said invoice is unsigned and finds RC No. 01A/2007/ACUIX/CBI 38/68 CC No. 21/12, CBI vs Rakesh Mohan etc. mention of reference number as "P.T.A" while there is no mention of the name of the person who had made the booking of the said air ticket. The credit note at page 59 of Ex PW6/A (colly) is purportedly of cancellation of the ticket detailed in the invoice aforesaid at page 44 of Ex PW6/A (colly). Even the said credit note is unsigned. Neither from these documents nor from deposition of any of the prosecution witness it has been elicited or proved as to which official of TPPL received the instructions for booking or cancellation of the ticket mentioned in the invoice and the credit note herein above said in this para. Even there is no oral or documentary evidence on record as to which amongst the arraigned accused had made the booking or cancellation of the aforesaid ticket detailed in the aforesaid invoice and credit note in this para.
36. PW6 deposed that the invoice at page 46 of Ex. PW 6/A (colly) was for the cost of the ticket booked in the name of Ms. Priyanka Mohan and Ms. Medha Mohan, daughters of A1; the said referred tickets were booked by A5 through Mr. Sikka. PW6 could not specify who was said Mr. Sikka through whom said tickets were booked. The referred invoice pertains to the purported National Journey detailed in serial no. 8 of the table at the end of para 1. The invoice aforesaid is unsigned.
Neither from said document nor from deposition of any of the prosecution witness it has been elicited or proved as to which official of TPPL received the instructions for booking of the ticket mentioned in the invoice herein above said in this para. Even there is no oral or RC No. 01A/2007/ACUIX/CBI 39/68 CC No. 21/12, CBI vs Rakesh Mohan etc. documentary evidence on record as to which amongst the arraigned accused had made the booking of the aforesaid ticket detailed in the aforesaid invoice in this para.
37. PW6 deposed that the invoice at page 47 of Ex. PW 6/A (colly) was for the cost of the ticket booked in the name of Mrs. Chandra Mohan, wife of A1; the said referred ticket was booked by A5 through Mr. Sikka. PW6 could not specify who was said Mr. Sikka through whom said ticket was booked. The referred invoice pertains to the purported National Journey detailed in serial no. 9 of the table at the end of para 1. The invoice aforesaid is unsigned. Neither from said document nor from deposition of any of the prosecution witness it has been elicited or proved as to which official of TPPL received the instructions for booking of the ticket mentioned in the invoice herein above said in this para. Even there is no oral or documentary evidence on record as to which amongst the arraigned accused had made the booking of the aforesaid ticket detailed in the aforesaid invoice in this para.
38. PW6 deposed that the invoice at page 49 of Ex. PW 6/A (colly) was for the cost of the ticket booked in the name of Mr. Mohit Mehra (son in law of A1); subsequently said ticket was canceled. The referred invoice pertains to the purported National Journey detailed in serial no. 10 of the table at the end of para 1.The said invoice is unsigned while there is no mention of the name of the person who had RC No. 01A/2007/ACUIX/CBI 40/68 CC No. 21/12, CBI vs Rakesh Mohan etc. made the booking of the said air ticket. The credit note at page 52 of Ex PW6/A (colly) is purportedly of cancellation of the ticket detailed in the invoice aforesaid at page 49 of Ex PW6/A (colly). Even the said credit note is unsigned. Neither from these documents nor from deposition of any of the prosecution witness it has been elicited or proved as to which official of TPPL received the instructions for booking or cancellation of the ticket mentioned in the invoice and the credit note herein above said in this para. Even there is no oral or documentary evidence on record as to which amongst the arraigned accused had made the booking or cancellation of the aforesaid ticket detailed in the aforesaid invoice and credit note in this para.
39. PW6 deposed that the invoice at page 53 of Ex. PW 6/A (colly) was for the cost of the ticket booked in the name of Ms. Priyanka Mohan (daughter of A1); subsequently said ticket was canceled. The referred invoice pertains to the purported National Journey detailed in serial no. 11 of the table at the end of para 1.The said invoice is unsigned while there is no mention of the name of the person who had made the booking of the said air ticket. The credit note at page 58 of Ex PW6/A (colly) is purportedly of cancellation of the ticket detailed in the invoice aforesaid at page 53 of Ex PW6/A (colly). Even the said credit note is unsigned. Neither from these documents nor from deposition of any of the prosecution witness it has been elicited or proved as to which official of TPPL received the instructions for booking or cancellation of RC No. 01A/2007/ACUIX/CBI 41/68 CC No. 21/12, CBI vs Rakesh Mohan etc. the ticket mentioned in the invoice and the credit note herein above said in this para. Even there is no oral or documentary evidence on record as to which amongst the arraigned accused had made the booking or cancellation of the aforesaid ticket detailed in the aforesaid invoice and credit note in this para.
40. PW12 was candid and vivid in his deposition saying there were five Accountants in their concern TPPL and amongst them two were doing the job of billing. Also PW12 stated that bills were raised immediately by those accountants in Billing Department for the transactions, to be given to the parties and the same were sent along with the tickets; whenever tickets were cancelled, the credit notes were generated by the Accountants and sent to the parties while in their computer systems a copy remained of the bills and the credit notes sent to the party. PW12 candidly admitted that from TPPL no documents were given to PW6 or any CBI official to show or prove any copy of bills/invoices/credit notes were either sent to A1 or A5 or delivery thereof. Admittedly, aforesaid invoices and credit notes in question and elicited above were not raised for bookings/cancellations of air tickets by PW12 but as per PW12 they were so raised by other employees of TPPL. Such other employees of TPPL were neither named by PW12 nor ascertained by investigating officers in the course of investigation nor their statements were recorded in the course of investigation nor they were cited as prosecution witnesses nor examined in the prosecution RC No. 01A/2007/ACUIX/CBI 42/68 CC No. 21/12, CBI vs Rakesh Mohan etc. evidence.
41. Section 65 of the Evidence Act enables admissibility of secondary evidence of the contents of a documents, in the events detailed therein. Section 65(d) specially provides that secondary evidence may be given of the existence, condition, or contents of a document when the original is of such a nature as not to be easily movable.
42. Rapid rise in the field of information and technology in the last decade of 20th Century and the increasing reliance placed upon electronic record by the world at large necessitated the laying down of a law relating to admissibility and proof of electronic record. The legislature responded to the crying need of the day by inserting into the Evidence Act Sections 65A and 65B, relating to admissibility of computer generated evidence in the only practical way it could so as to eliminate the challenge to electronic evidence.
43. By virtue of the provisions of Section 65A, the contents of electronic records may be proved in evidence by the parties in accordance with the provisions of Section 65B.
44. Sub clause (1) of Section 65B of Evidence Act stipulates that any information contained in electronic record shall be deemed to be a document and shall be admissible in evidence without further proof or RC No. 01A/2007/ACUIX/CBI 43/68 CC No. 21/12, CBI vs Rakesh Mohan etc. production of the originals, if the conditions mentioned in the said Section are satisfied in relation to the information and computer in question. Subclause (2) of Section 65B lays down the conditions required to be satisfied for admissibility of the electronic record and reads as follows:
"65B(2). The conditions referred to in Subsection (1) in respect of a computer output shall be the following, namely:
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer.
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities."
45. Sub section (4) of Section 65B of Evidence Act reads as under:
"(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
RC No. 01A/2007/ACUIX/CBI 44/68 CC No. 21/12, CBI vs Rakesh Mohan etc.
(c) dealing with any of the matters to which the conditions mentioned in Subsection (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this Subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it."
46. The Apex Court in State v. Navjot Sandhu, (2005) 11 SCC 600, while examining the provisions of newly added Sections 65B, held that in a given case, it may be that the certificate containing the details in Sub section 4 of Section 65B is not filed, but that does not mean that secondary evidence cannot be given. It was held by the Court that the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Section 63 and 65 of the Evidence Act. Paragraph150 of the judgment which is apposite, reads as under:
"150. According to Section 63, secondary evidence means and includes, among other things, copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies. Section 65 enables secondary evidence of the contents of a document to be adduced if the original is of such a nature as not to be easily movable. It is not in dispute that the information contained in the call records is stored in huge servers which cannot be easily moved and produced in the court. That is what the High Court has also observed at para 276. Hence, printouts taken from the computers/servers by mechanical process and certified by a responsible official of the serviceproviding company can be led in evidence through a witness who can identify the signatures of the certifying officer or otherwise speak of the facts based on his personal knowledge. Irrespective of the compliance of the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 RC No. 01A/2007/ACUIX/CBI 45/68 CC No. 21/12, CBI vs Rakesh Mohan etc. and 65. It may be that the certificate containing the details in Sub section (4) of Section 65B is not filed in the instant case, but that does not mean that secondary evidence cannot be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65".
47. Ld. Counsels for the accused vehemently argued that the documents of TPPL namely extracts of ledger, invoices, credit notes were fudged, fabricated as well as forged.
48. PW12 deposed that the documents Ex PW6/A (colly) to Ex PW6/F (colly) were all maintained in their office in the normal course of business and on demand any of such documents were given to the relevant person, while even the relevant documents amongst them were sent to the relevant person along with the tickets. In terms of version of PW12 the Accountants who did the job of billing and the officials of staff who looked after the billing made the billing entries in the computer systems in their office and he (PW12) did not do so but after the entries were made in the computer systems, then he (PW12) used to look after the accounts including such entries as an Accountant along with other two Accountants of TPPL. PW12 also deposed that in the ledger in the computer systems at their office there is entry of every bill, receipt and credit note. Also PW12 stated that whenever a party gave payment on account, the details were not settled; whenever party told them and subsequent payments were received, the party told them that the payment may be settled against the particular bill and they entered such particulars RC No. 01A/2007/ACUIX/CBI 46/68 CC No. 21/12, CBI vs Rakesh Mohan etc. in their computer systems during the current financial year while any mistake in accounting was rectified during current financial year only and they used to check entries on day to day basis and rectify mistakes, if any on day to day basis, so there was no occasion for there remaining any mistake in the accounts on closing of the financial year.
49. PW7 Sh Ramesh Kumar Gupta, AGM of Central Bank of India deposed that he was Senior Manager in Khan Market Branch in June 2009 and had given certified copy of statement Ex PW7/B for period 01/04/2004 to 11/06/2009 of account no. 12722 of A1 and his wife. At serial no. 69 in Ex PW7/B, there was a debit entry of Rs 2,21,663/ by way of cheque no. 386758 on 28/05/2005. DW6 Sh S.K Garg, Chief Manager Central Bank of India, Khan Market also brought on record certificate Ex DW6/C finding mention of aforesaid cheque number 386758 having been debited to aforesaid Saving Account number 12722 on 28/05/2005 and said cheque being in favour of TPPL. In the extracts of ledger account CK068 of A5 at page 4 of Ex PW6/B (colly), generated from computer of TPPL by PW12 as aforesaid at portions X, Y, Z, Z1 and Z2 are the sums of Rs 1,53,823/; Rs 39,729/; Rs 21,710/; Rs 50/ and Rs 6,351/ respectively which as per PW12 were the credits given in the account of A5 for the payment received vide cheque no. 386758 aforesaid issued from account of A1 and his wife, which were adjusted to the journeys not pertaining to A1 and his family but the said journeys were concerning A2, A5 and others. As per PW12, RC No. 01A/2007/ACUIX/CBI 47/68 CC No. 21/12, CBI vs Rakesh Mohan etc. aforesaid cheque no. 386758 was not received by PW12 nor PW12 had received any instructions for the adjustment of its sum on it being honoured on presentation towards journeys of A5, A2 and others, so the version of PW12 regarding instructions from A5 to credit the amount of said cheque received by some (unknown) member of their staff was hearsay and hit by Section 60 of Evidence Act. No cogent version is in record of evidence of prosecution, oral or documentary for such appropriation of sum of Rs 2,21,663/ of cheque of A1 towards journeys or works not attributed to A1 and family. Infact the said sum of Rs 2,21,663/ of cheque of A1 was adjusted towards the invoices at pages 32, 34, 35, 37 and 38 of Ex PW6/B (colly) which invoices were in no way connected with A1 and his family. Inappropriation or infact misappropriation of said sum of Rs 2,21,663/ of cheque of A1 towards journeys or works not attributed to A1 and family is writ large and proved on face of record of TPPL.
50. In the course of his cross examination PW12 admitted that invoice dated 21/02/2006 at page 141 of Ex PW6/B(colly) was for sum of Rs 5,53,282/ for A2 and at page 17 of Ex PW6/B(colly) in the ledger account of A5 at point X1 there was mention that the amount of Rs 3 lacs was received by cheque no. 155609 towards invoice no. I5604066, the aforesaid invoice at page 141 of Ex PW6/B(colly). Vide letter D21, Ex PW8/D, PW8 gave the statement Ex PW6/K on 17/08/2007 regarding the tickets booked/cancelled on behalf of A5 in financial year 200405/2005 RC No. 01A/2007/ACUIX/CBI 48/68 CC No. 21/12, CBI vs Rakesh Mohan etc.
06. Vide letter D17, Ex PW8/B, PW8 gave the statement Ex PW12/DA on 29/03/2010 regarding the tickets booked/cancelled on behalf of A5 in financial year 200405/200506. In Ex PW6/K the aforesaid sum of Rs 3 lacs of cheque no. 155609 was adjusted towards the journeys of A1 and family. Having seen all these documents, in the course of his cross examination, PW12 admitted that the aforesaid sum of Rs 3 lacs was wrongly adjusted towards journeys of A1 and family. At page 18 of Ex PW6/B(colly), the extract of the ledger account of KIPL of period 01/04/2005 to 31/03/2006 in the books of TPPL, there is credit entry of excess billing of amount of Rs 51,222/ in Invoice no. I5604071. There is no mention of such excess billing of amount of Rs 51,222/ in either Ex PW6/K or Ex PW12/DA. Cash memo at page no. 41 of Ex PW6/B(colly) was issued in the name of Awadesh Kumar Mishra and mentions the mode of payment as cash for Rs. 46,200/. At page 3 of Ex PW6/B(colly), there is a credit entry of Rs 21,912/, payment received by cheque no. 111545 towards cash memo no. 10433 i.e., the cash memo at page no. 41 of Ex PW6/B(colly). No satisfactory explanation could be given by PW12 regarding such credit entry by cheque of Rs 21,912/ towards the said cash memo of Rs 46,200/ on which it was mentioned that the mode of payment was cash. The cash memo and the referred ledger account are inter se contradictory and cannot be reconciled. More so, there is no oral or documentary evidence on record to connect Awadesh Kumar Mishra with A5 nor PW12 could elicit who for A5 had given instructions for entries regarding said cash memo at page 41 of Ex RC No. 01A/2007/ACUIX/CBI 49/68 CC No. 21/12, CBI vs Rakesh Mohan etc. PW6/B(colly) in the account of A5 in the books of TPPL. A2 to A5 through Counsel suggested to PW12 in the course of his cross examination that the credit entry of Rs 21,912/, dated 14/05/2005 at page 3 of Ex PW6/B (colly) was having no concern with A5 and said amount was wrongly credited in the account of A5. Even similar cash memos at pages 27,28 and 29 of Ex PW6/B(colly) found mention mode of payment as by cheque.
51. Cash receipt book D8, Ex PW6/J contained carbon copy of receipt no. 5603041, dated 21/02/2006 for sum of Rs 1,11,000/from Pankaj and Company wherein the column of Bill number, there is mention of, "on account", bill number is not mentioned and there are signatures of cashier there, name of the cashier is not written. PW12 in the course of his examination stated that said receipt was issued by their cashier Sh Shiv Kumar. Said payment was not received in the presence of PW12 nor said receipt was issued in the presence of PW12. Cash receipt book D9, Ex PW6/H contained carbon copy of receipt no. 5603260, dated 16/03/2006 for sum of Rs 61,670/ from Pankaj and Company wherein the column of Bill number, there is mention of, "on account", bill number is not mentioned and there are signatures of cashier there, name of the cashier is not written. PW12 in the course of his examination stated that said receipt was issued by their Head Cashier Sh R.K Sethi. Said payment was not received in the presence of PW12 nor said receipt was issued in the presence of PW12. None amongst the RC No. 01A/2007/ACUIX/CBI 50/68 CC No. 21/12, CBI vs Rakesh Mohan etc. investigating officers PW15 the then Additional SP Ramnish or PW19 Inspector M.C.R Mukund made any enquiries from either said Pankaj and Company or from any Cashiers of TPPL including said Shiv Kumar, R.K Sethi for aforesaid receipt of sums of Rs 1,11,000/ and Rs 61,670/ or about instructions, as to for what purposes said sums were deposited and where these were to be adjusted. There was no impediment in the way of any of the investigating officer of the premier investigating agency to ascertain as to which of the employee of TPPL had received the aforesaid sums of Rs 1,11,000/ and Rs 61,670/ or instructions as to for what purposes said sums were deposited and where these were to be adjusted and who deposited said sums and who gave instructions for adjustment of these sums. Per contra, PW15 deposed that since it was not required, he did not ascertain about the number of the staff officials of TPPL nor investigated on the aspect as to who all officials did bookings of tickets in TPPL despite the fact that he remained IO with effect from 23/04/2007 to the end of January 2008. PW12 deposed that the instructions were received by the cashier from A5, so aforesaid sums of Rs 1,11,000/ and Rs 61,670/ were credited in the account of A5. Neither such instructions were received by PW12 himself nor were received in his presence by any cashier of TPPL nor PW12 could elicit when such instructions were given or as to which official/Director of A5 gave such instructions. The cashiers of TPPL who received the aforesaid sums of Rs 1,11,000/ and Rs 61,670/ were neither inquired nor examined in investigation nor cited nor examined as prosecution witness RC No. 01A/2007/ACUIX/CBI 51/68 CC No. 21/12, CBI vs Rakesh Mohan etc. to themselves depose who deposited said sums and what were instructions on such deposits. The version of PW12 regarding instructions of such deposits is hearsay, so inadmissible in evidence being hit by Section 60 of Evidence Act. None of the investigating officers made any inquiries or even any effort for any inquiry as to where the Pankaj and Company was or who were their officials or what was the status of the account of said Pankaj and Company in the ledger and final accounts of TPPL. It was incumbent upon the investigating officers to inquire as to where the Pankaj and Company was or who were their officials or what was the status of the account in the ledger and final accounts of TPPL since the aforesaid receipts of Rs. 1,11,000/ and Rs 61,670/ were in the name of Pankaj and Company and stated to be an on account payment. Even the such deposits of Rs. 1,11,000/ and Rs 61,670/ were not finding mention in the statement Ex PW6/K given with letter Ex PW8/D, dated 17/08/2007 while it is part of statement Ex PW12/DA given with letter Ex PW8/B, dated 29/03/2010. PW12 deposed that statement Ex PW6/K was complete whose print out was taken by him (PW12) from the computer system of his office and when Ex PW6/K was given to CBI all the records of TPPL were properly checked. PW12 had also deposed that whenever there were any entries of bookings, receipts made in the computer system by the officials of TPPL, then automatically in the ledger in the computer the entry was reflected in the account of the party concerned. The version of PW12 that it was by mistake that the entries of amounts of Rs. 1,11,000/ and Rs 61,670/ RC No. 01A/2007/ACUIX/CBI 52/68 CC No. 21/12, CBI vs Rakesh Mohan etc. did not find mention in Ex PW6/K though they were mentioned in Ex PW12/DA almost three years later, does not go down the throat and per se is not acceptable since PW12 has contradicted his own version that whenever an entry is made in the computer regarding bookings and payment received, automatically in the ledger in the computer the entry was reflected in the account of the party concerned. If in the cash receipt no. 5603041, dated 21/02/2006 of Rs. 1,11,000/ and in cash receipt no. 5603260, dated 16/03/2006 of Rs 61,670/ the name of the depositor is written as "Pankaj and Company", then how the said amounts were not credited in the account of "Pankaj and Company" and instead were credited in the account of A5. No written instructions as well of either said "Pankaj and Company" or A5 have been placed on record or proved for crediting the said sums of Rs. 1,11,000/ and Rs 61,670/ in the account of A5 instead of crediting the said sums of Rs. 1,11,000/ and Rs 61,670/ in the account of said "Pankaj and Company". At page 16 of the extracts of the ledger in Ex PW6/B(colly), there is mention of credit of Rs 1,11,000/ on 21/02/2006 towards invoice no. I5604071. At page 17 of the extracts of the ledger in Ex PW6/B (B), there is mention of credit of Rs 55,819/ on 16/03/2006 towards invoice no. I5604070 and there is also mention of credit of Rs 5,851/ on 16/03/2006 toward invoice no. I5604071. It stands not proved as to how and under whose instructions the credit of Rs 61,670/ was bifurcated towards invoices no. I5604071 and I5604070 or how the sums of Rs 1,11,000/ and Rs 61,670/ were credited in the account of A5 in the extracts of books of RC No. 01A/2007/ACUIX/CBI 53/68 CC No. 21/12, CBI vs Rakesh Mohan etc. account of TPPL. It is not proved on record that any employee or Director/Shareholder of A5 including A2 to A4 had given either the said sums of Rs 1,11,000/ and Rs 61,670/ or any such instructions for crediting the said sums of Rs 1,11,000/ and Rs 61,670/ in the account of A5. It is not proved on record which employee of TPPL received such instructions for such credits of such sums of Rs 1,11,000/ and Rs 61,670/ in account of A5 and which employee of TPPL did such entry in the accounts of TPPL. It demonstrates manipulations in the placed extracts of the books of account of TPPL embodying alleged accounts of A5.
52. At page 12 of extracts of ledger in Ex PW6/B (colly) purported to be account of A5 in the books of TPPL there is a credit of Rs 43,327/ in respect of cheque dated 28/09/2005 received on 04/10/2005 drawn on ABN Amro Bank, the cheque alleged to be of A5. The Chartered Accountant of A5 namely DW10 namely Ravinder Goel stated on oath that A5 did not have any current account with ABN Amro Bank during financial years 200405 and 200506. DW10 also deposed that there was no transaction of A5 with any company by the name of "Pankaj and Company" in the financial years 200405 and 200506 or even thereafter. DW10 was also categorical in his deposition, saying as per books of account of A5, no payments in cash were made by A5 to TPPL. DW10 had also deposed that in the month of January 2013 he had received the summons from this court to appear as witness and from RC No. 01A/2007/ACUIX/CBI 54/68 CC No. 21/12, CBI vs Rakesh Mohan etc. 18/01/2013 to 20/01/2013 he had done the rechecking of accounts of A5 for the financial years 200405 and 200506, whose audit was done by M/s Arora Gupta and Goel Chartered Accountant, a partnership firm whose partner was DW10.
53. At page 3 of the extracts of ledger account CM250 purportedly of Mohan and family in the books of TPPL, part of Ex PW6/E (colly), the first debit entry is in respect of Invoice no. I 5602162, dated 26/09/2005 for the ticket number 5014234767 in name of Medha Mohan for flight no. CX752 for journey of date 24/09/2005 of Delhi HongkongLos AnglesHongkongDelhi by Airline "160". The invoice aforesaid is at page 15 of Ex PW6/E(colly) which is unsigned for TPPL finding no mention of the person who made said booking but is mentioned, "REF.ANURAG GROVER/DHAMIJA". There is no mention of discount in the said invoice at page 15 of Ex PW6/E (colly). The second entry at page 3 aforesaid of Ex PW6/E (colly) is regarding credit of sum of Rs 99,975/ as discount to Medha Mohan in respect of aforesaid ticket described in aforesaid invoice at page no. 15 of Ex PW6/E (colly). Neither the invoice aforesaid finds mention of the discount aforesaid nor for the discount aforesaid there is any corresponding credit note on record to justify the discount entry at page 3 as elicited above. It demonstrates manipulations in the placed extracts of the books of account of TPPL embodying alleged accounts of Mohan and Family.
RC No. 01A/2007/ACUIX/CBI 55/68 CC No. 21/12, CBI vs Rakesh Mohan etc.
54. DW1 Sh Arvind Kumar, Manager (Accounts) in Birds Wing, Connaught Place, New Delhi proved on record as Ex DW1/A, the invoice no. 06183, dated 23/08/2005 for Rs 52,487/ issued in the name of Medha Mohan bearing ticket no. 1605166778143 of her travel to DelhiHongkongLos AnglesHongkongDelhi, date of departure as 24/09/2005. DW1 also proved the statement of account Ex DW1/B of Medha Mohan from 01/04/2005 to 30/09/2005 finding mention of issuance of the aforesaid invoice Ex DW1/A for which payment was received on 23/09/2005 by cheque no. 864543, dated 24/09/2005 drawn on ICICI Bank Limited. Aforesaid cheque was received by the Birds Wing vide receipt Ex DW1/C. DW2 Ashok Kumar Batra, Airport Services Manager, Cathay Pacific Airway proved certificate Ex DW2/A finding mention the travel of Medha Mohan vide ticket no. 1602109647997 issued on 15/09/2005 which was reissued in exchange of earlier ticket no. 1605166778143 with no added cost. As per DW2 Medha Mohan departed from Delhi Airport on 24/09/2005 by flight CX 752 for which he placed on record the certificate Ex DW2/A having information derived from the electronic record maintained in the ordinary business activities in their company. DW2 also placed on record as Ex DW2/B the electronic image of ticket issued on 15/09/2009 to Ms. Medha Mohan for aforesaid travel. DW3 Ashish Kumar Mishra, Manager, ICICI Bank, Connaught Place Branch, New Delhi proved statements Ex DW3/A and Ex DW3/B of periods 01/07/2005 to RC No. 01A/2007/ACUIX/CBI 56/68 CC No. 21/12, CBI vs Rakesh Mohan etc. 30/09/2005 and 01/04/2005 to 30/06/2005 of Saving Bank Account no. 000701073443 of Medha Mohan having mention of the debit entry of Rs 52,487/ on 26/09/2005 in favour of Birds Wing there in Ex DW3/A. DW3 also proved certified copy of cheque no. 864543, dated 24/09/2005 of Rs 52,487/ in favour of Birds Wing as Ex DW3/C finding mention overleaf, "Air Ticket Medha Mohan". The certificate dated 03/12/2012, Ex DW3/D under the Sections 2A(b) and (c) of Banker's Books Evidence Act for the aforesaid statement and the scanned copy of the cheque was also proved by DW3. DW9 Sh Aditya Pathak, Assistant Manager, ICICI Bank Connaught Place proved certificate Ex DW9/A under Section 2A(b) and (c) of the Banker's Books Evidence Act regarding aforesaid documents Ex DW3/A to Ex DW3/C. In terms of Ex DW3/A to Ex DW3/D, Ex DW9/A and deposition of DW 1 to DW 3, the defence has been able to prove the travel of Medha Mohan on 24/09/2005 to DelhiHongkongLos AnglesHongkongDelhi by flight CX752 by ticket booked by Birds Wing on payment received from Medha Mohan vide cheque, copy Ex DW3/C. It falsifies the version contained in the extracts of books of accounts of TPPL incorporated about the travel of Medha Mohan on 24/09/2005 to DelhiHongkongLos AnglesHongkongDelhi by flight CX752 on the ticket booked by TPPL aforesaid specified in the invoice at page 15 of Ex PW6/E (colly) regarding which the entries were at page 3 of Ex PW6/E (colly), herein above discussed. Manipulation in the placed extracts of the books of account of TPPL embodying alleged accounts of Mohan and family is RC No. 01A/2007/ACUIX/CBI 57/68 CC No. 21/12, CBI vs Rakesh Mohan etc. writ large on the face of record.
55. In Ex PW6/B (colly), at page 18 of the extracts of ledger of account of A5 in the books of TPPL, there is a credit entry of Rs 51,222/, dated 31/03/2006 for the said amount being adjusted against the excess billing in invoice no. I5604071, dated 21/02/2006. The referred invoice is for the purported International Journey of Mohit Mehra, soninlaw of A1, detailed in serial no. 6 of the table of International Journeys mentioned at the end of para 1 of this judgment. There is no mention of any credit note or its particulars in the said credit entry at page 18 of Ex PW6/B(colly). Also in Ex PW6/B(colly), there is no corresponding credit note for said credit entry of Rs 51,222/. If the version of PW12 is to be taken as gospel truth, then for said credit entry of Rs 51,222/ there should have been a credit note, since PW12 had deposed that entries were automatically reflected in the ledger on account of bookings/cancellation/payments received and entered in the computer by the employees of TPPL concerned. There is another facet of the matter. The invoices at pages 142 and 143 of Ex PW6/B(colly) depict the purported bookings for Priyanka Mohan and Mohit Mehra on 21/02/2006 vide invoice numbers I5604070 of Rs. 1,68,074/ and I5604071 of Rs 1,68,073/ respectively for journeys of date 01/04/2006 of Los Angles DelhiLos Angles by Air India. Though in page 18 of Ex PW6/B (colly) for aforesaid invoice number I5604071 there is such mention of credit of Rs 51,222/ for excess billing but strangely enough there is no RC No. 01A/2007/ACUIX/CBI 58/68 CC No. 21/12, CBI vs Rakesh Mohan etc. mention of any credit for any excess billing for invoice no. I5604070, though the bookings through these invoices were done on the same day, purportedly one after the other, for the same journey. Though for the later invoice I5604071 there is discount extended to Mohit Mehra allegedly but for the former invoice I5604070 no discount is extended purportedly to Priyanka Mohan for the same alleged journey. It demonstrates manipulations in the placed extracts of the books of account of TPPL embodying alleged accounts of A5.
56. DW4 Ms. Puneet Sindhu, Service Manager, Citi Bank, Noida proved on record copy of cheque Ex DW4/C of Rs 1,54,700/ bearing no. 031510, dated 05/04/2006 drawn on TPPL from the Saving Account No. 5001187289 of Mohit Mehra finding mention over leaf, "Air fare for Mohit Mehra Priyanka Mohan" for which cheque the said account was debited on 24/05/2006, as per statement of account Ex DW4/A supported by certificate Ex DW4/B, under Section 2A of Banker's Books Evidence Act. These facts prove that said sum of Rs 1,54,700/ vide said cheque was given by Mohit Mehra (soninlaw of A1) to TPPL for "Air fare for Mohit Mehra Priyanka Mohan", instructions were over leaf the cheque. Per contra to said instructions, the said sum of Rs 1,54,700/ was not adjusted towards the "Air fare for Mohit Mehra Priyanka Mohan" but as per Ex PW6/E (colly) was credited in the account of Mohan and Family in general without any specific mention as to for what journey the said sum of Rs 1,54,700/ RC No. 01A/2007/ACUIX/CBI 59/68 CC No. 21/12, CBI vs Rakesh Mohan etc. was. Be that as it may, fact remains proved on record that Rs 1,54,700/ was paid by Mohit Mehra to TPPL vide said cheque dated 05/04/2006 debited from the account of Mohit Mehra on 24/05/2006 and correspondingly on 24/05/2006 TPPL received its credit. Aforesaid facts also demonstrate manipulations in the placed extracts of the books of account of TPPL embodying alleged accounts of Mohan and family.
57. DW11 Prashant Kumar Vivek, Senior Manager (Administration) of A5 proved as Ex DW11/A, the office copy of letter dated 02/08/2011 of Manager Finance of A5 sent to TPPL alleging non credit of amounts detailed therein, as per statement of account for the financial year 200506 by TPPL despite sending of several previous letters by A5. As per DW11, Ex DW11/A was sent by registered post vide receipt Ex DW11/B.
58. Section 224 of The Companies Act 1956 embodies the provision for appointment and remuneration of Auditors. A Chartered Accountant is to be an Auditor of a company. Section 227 of The Companies Act 1956 embodies the powers and duties of the Auditors, in terms of which at the end of the financial year, the Auditor of the company has to furnish the report as to the state of affairs of Company's affairs. In terms of Section 227 (3)(c) of The Companies Act 1956, the auditor is also under duty to see whether the Company's balance sheet and profit and loss account dealt with by his auditor's report are in RC No. 01A/2007/ACUIX/CBI 60/68 CC No. 21/12, CBI vs Rakesh Mohan etc. agreement with the books of account and return of the Company. In terms of Section 227 (3)(d) of The Companies Act 1956, the Auditor is also under duty to see whether in his opinion the profit and loss account and balance sheet of the Company comply with the accounting standards referred to in sub section (3C) of Section 211 of The Companies Act 1956 i.e., the standards of accounting recommended by the Institute of Chartered Accountants of India as may be prescribed by the Central Government in consultation with the National Advisory Committee on Accounting Standards established under sub section (1) of Section 210A of The Companies Act 1956. Section 232 of The Companies Act 1956 prescribes penalty against defaulting Company and its officers for non compliance of Sections 225 to 231 of The Companies Act 1956. Section 233 of The Companies Act 1956 prescribes penalty for default by Auditor to provisions of Section 227 and 229 of The Companies Act 1956. Section 233A of The Companies Act 1956 embodies the powers of Central Government to direct Special Audit in certain cases. Accordingly, it is mandatory for a Company to get its accounts of every financial year audited by competent Auditor.
59. From every act of investigating agency what the Court expects is the fairness. Fairness of investigation in this case is not apparent from the face of record. Not a single extract of books of accounts seized from TPPL was attested to be a true copy of original nor was certified nor was accompanied by requisite certificate under Section RC No. 01A/2007/ACUIX/CBI 61/68 CC No. 21/12, CBI vs Rakesh Mohan etc. 65 B (4) of Evidence Act. All extracts of books of accounts of TPPL on record had been generated from the computers of TPPL, which computers were operated in routine by the not one but five accountants and other employees of TPPL. Audited books of M/s Travel Planners Pvt Ltd (TPPL) were not seized in investigation nor relied nor produced nor proved in prosecution evidence. The Auditor of TPPL was not examined by the investigating officer nor cited nor examined as a prosecution witness. Responsible officers of premier agency CBI of rank of Additional Superintendent of Police i.e., PW15 Sh Ramnish and PW19 Inspector M.C.R Mukund had investigated the matter. It was in the knowledge of the investigating officers that there were more than one (precisely 5 as per PW12) officials in TPPL who were Accountants and besides them the other employees were also doing the job of booking/cancellation of air tickets and several employees of TPPL were receiving cash being Cashier or otherwise. Such employees of TPPL or Accountants, excepting PW12, were neither examined in investigation nor cited nor examined as prosecution witnesses to bring on record direct oral evidence of bookings/cancellations of air tickets. First information report in the case in hand did not contain any allegations regarding charge in question against arraigned accused. In the course of the investigation, as per PW15 allegations surfaced regarding charge in question. It was all the more necessary for the investigating officers to observe all necessary care, caution and collect all possible material pieces of evidence including scientific evidence to nail the arraigned RC No. 01A/2007/ACUIX/CBI 62/68 CC No. 21/12, CBI vs Rakesh Mohan etc. accused for the charged offences. The investigating agency was well aware that the computerized copies of the ledger, invoices, bills, credit notes, the extracts of the books of TPPL in Ex PW6/A (colly), Ex PW6/B (colly), Ex PW6/C (colly), Ex PW6/D (colly), Ex PW6/E (colly) and Ex PW6/F (colly) were neither attested nor certified. Also all these documents were not accompanied by requisite certificate under Section 65B (4) of Evidence Act (a) identifying the electronic record containing the record and describing the manner in which it was produced; (b) giving such particulars of any device involved in the production of the electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer; (c) dealing with any of the matters to which the conditions mentioned in sub section (2) of Section 65 B of Evidence Act relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities; (d) specifying that the computer concerned was used regularly and the person had lawful control over the use of the computer; (e) mentioning the fact that during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the such activity; (f) specifying that throughout material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not RC No. 01A/2007/ACUIX/CBI 63/68 CC No. 21/12, CBI vs Rakesh Mohan etc. such as to affect the electronic record or the accuracy of its contents; (g) mentioning the fact that the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of such activity; (h) specifying that whether the computer output containing the information was a combination of computers operating over that period or by different computers operating in succession over that period or by different combinations of computers operating in succession over that period or in any other manner involving the successive operation of one or more than one computer or one or more combinations of computers in whatever order it may be. The officers of investigating agency had also not ascertained what was the software installed in the computers of TPPL due to which on making entry by officials of TPPL regarding booking of tickets, etc. automatically entry was reflected in corresponding and concerned ledger account of party concerned. It was also not ascertained by the officers of investigating agency as to whether for the relevant period(s) the computer(s) of TPPL were operating properly or anyone or more or all were out of operation during any material part of such period for such act(s) affected or not the electronic record or the accuracy of the contents of accounts in question. It was also not ascertained by the officers of investigating agency whether the extracts of accounts of TPPL placed on record as aforesaid were reproduced exactly or derived from such information which was fed in computer in ordinary course of activity. For that the safest option with RC No. 01A/2007/ACUIX/CBI 64/68 CC No. 21/12, CBI vs Rakesh Mohan etc. the officers of investigating agency was of comparison of the obtained extracts of accounts of TPPL placed on record with the audited books of accounts of TPPL. The Hard Disc(s) of computer(s) of TPPL used for accounting purposes were neither seized nor sent for forensic opinion nor it was ascertained what was the hash value of the ledger accounts, invoices, bills, credit notes, accounts allegedly pertaining to A5, Mohan and family in question at the time of audit and when Ex PW6/A (colly) to Ex PW6/F (colly), Ex PW6/K, Ex PW12/DA were generated. The investigating officers admitted that the tours of A1 to London and Washington were official tours taken by A1 after approval of competent authority of DJB, Government of NCT of Delhi and Government of India.
60. Of course, officers of CBI, the premier investigating agency, at the outset cannot be said to be untrustworthy but when in a serious case of alleged corruption by a senior bureaucrat is being investigated, suspicion is laid over the senior bureaucrat of alleged corruption and private persons including a private limited company are suspected of alleged abetment of the offence of corruption, what is expected by a Court from the officers of investigating agency is firstly to collect the best possible incriminating evidence at the first instance against such suspects/accused to lend credence and avoid criticism. Persons who made bookings of air tickets in question with TPPL and/or persons/employees of TPPL who received bookings of air tickets in RC No. 01A/2007/ACUIX/CBI 65/68 CC No. 21/12, CBI vs Rakesh Mohan etc. question were neither examined in the course of investigation nor cited nor examined in the course of trial by the prosecution. The hard disk of the computers of TPPL, the travel agent were neither seized nor retrieved to vouch for the authenticity of the accounts of TPPL, whose copies have been brought in the prosecution evidence, which are unreliable, their various entries do not match with instructions, even some of them are devoid of necessary details including that of the booking person of A5 and the booking receiving person of TPPL. For International Journey number one, A1 had utilized the companion scheme of Air India, regarding which DW7 in defence evidence proved on record that taxes were paid by wife of A1 for the companion ticket utilized by her. The investigating agency had not brought on record nor proved any Flight Manifest to prove whether the journeys were performed by A1 and his relatives, as alleged in the prosecution case. Cheque no. 386758 of Rs 2,21,663/ was issued from account of A1 and his wife at Central Bank of India, Khan Market Branch, debited to their account on 28/05/2005 and the proceeds were credited in the account of TPPL as per DW6/C but yet, strangely enough, putting all canons of accounting procedures at bay, the travel agency TPPL had adjusted said sum of Rs 2,21,663/ towards journeys performed by A2 and others, which journeys in no manner were concerned with A1 or his family and nor the persons who so travelled, were in any manner concerned with A1 in respect of said journeys, which infact depicted as a consequence that KIPL (A5) was not paying for A1 and his family but rather A1 was paying for KIPL(A5).
RC No. 01A/2007/ACUIX/CBI 66/68 CC No. 21/12, CBI vs Rakesh Mohan etc. Rs 1,54,700/ were paid by Sh Mohit Mehra (soninlaw of A1) vide cheque no. 031510, copy Ex DW4/C, dated 05/04/2006 drawn on Citi Bank towards air fare for himself and his wife namely Priyanka Mohan (daughter of A1) to TPPL but appropriate credit was not given to such payment. Though not admitted by defence, still for sake of arguments even if the cost of International Journey nos. 5 and 6 as detailed in the table given at the end of para 1 of the judgment i.e., Rs. 3,36,147/ minus Rs 51,222/, the sum of credit given at page 18 of Ex PW6/B (colly) for excess billing in the invoice of aforesaid International Journey no. 6 would make the balance as Rs 2,84,925/ to which if we add the sum of the cost of National Journeys at serial nos. 8 and 9 as detailed in the table given at the end of para 1 of the judgment i.e., Rs. 48,968/ and Rs 24,484/, then it would make the total cost of the journeys National as well as International as detailed in the table given at the end of para 1 of the judgment as Rs 3,58,377/. The aforesaid sums of Rs 2,21,663/ paid from account of A1 and his wife and Rs 1,54,700/ paid by soninlaw of A1, which were incorrectly accounted in the books of account of TPPL elicited above, would be totaling Rs. 3,76,363/ which per se is in excess to the sum of Rs 3,58,377/, the aforesaid total cost of the alleged journeys, National as well as International as detailed in the table given at the end of para 1 of the judgment. It stands not proved on record that any or all arraigned accused made any bookings/cancellation of the Journeys, National or International detailed in the table given at the end of para 1 of the judgment. It also stands not proved that fares of air RC No. 01A/2007/ACUIX/CBI 67/68 CC No. 21/12, CBI vs Rakesh Mohan etc. tickets/cancellation sums of said Journeys, National or International detailed in the table given at the end of para 1 of the judgment were paid by A5 with the aid of any of its Directors/shareholders, A2 to A4 or A1 accepted/obtained such sums for himself or his relatives by abuse of his office of public servant with or without public interest. Considering the totality of the circumstances, in view of above discussions, it is proved on record that the aforesaid computerized extracts of books of accounts of TPPL, documents Ex PW6/A (colly) to Ex PW6/F (colly), Ex PW6/K, Ex PW12/DA including ledger accounts, invoices, bills, credit notes, accounts allegedly pertaining to A5, Mohan and family in question were unreliable documents, being manipulated and fudged and devoid of requisite certificate under Section 65B(4) of Evidence Act and cannot be made the basis for conviction of any or all accused.
61. Accordingly, I am of the considered opinion that the prosecution has failed to prove its case against the accused persons beyond reasonable doubt. Accused persons are held not guilty and acquitted for the offences charged. Their bail bonds are cancelled. Sureties are discharged. File be consigned to record room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 26/03/2013. Patiala House Court, New Delhi.
Deepika RC No. 01A/2007/ACUIX/CBI 68/68