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Delhi District Court

"C. Evidence Act vs . on 1 February, 2021

 IN THE COURT OF MS. NIRJA BHATIA, SPECIAL JUDGE (PC
     ACT) CBI­03, ROUSE AVENUE DISTRICT COURTS,
                      NEW DELHI.

CNR NO. DLCT11­000828­2019
Registration/CC No. 199/2019
RC. No. 9(A)/2016
Branch : CBI/SPE/ACU­V/New Delhi
U/s : 120­B IPC r/w Section 7, ,  and 13(2)
      r/w section 13 (1) (a) and 13 (1) (d) of PC Act, 1988

In re:

Central Bureau of Investigation (CBI)

         Vs.

(1)      Sh. Neeraj Khatri                                     Accused No.1
         S/o Sh. Prem Prakash Khatri
         R/o 113, Vikash Nagar,
         Rohtak, Haryana

(2)      Sh. S. Vaikundarajan,                                 Accused No.2
         S/o Sh. Subbiah Nadar,
         R/o Keeraikaranthattu,
         Mahadevankulam,
         Post Tirunelveli District,
         Tamil Nadu

(3)      Ms. Subbulakshmi                                      Accused No.3
         D/o Sh. Muruganantham,
         R/o 2/3, Muthuveli Street,
         Samiyar Madan,
         Kodambakkam,
         Chennai ­ 440024

  R/CC No. 199/2019             CBI vs. Neeraj Khatri & ors.       Page 1 of 264
 (4)   M/s. V.V. Minerals                                     Accused No. 4
      Office at Keeraikaranthattu,
      Tisaiyanvilai,
      Tirunvelveli District
      Tamil Nadu­627657
      Branch Office: 500, Pantheon Road,
      Egmore, Chennai ­ 600008

      Date of institution                                :   29.12.2016
      Date on which judgment was reserved                :   19.01.2021
      Date of judgment                                   :   01.02.2021


                              JUDGMENT

1. The FIR in the present case is lodged on 01.03.2016 based on a source information. It showed that Neeraj Khatri (hereinbelow referred as A­

1), who, at the relevant time, was posted as Dy. Director (Scientist ­C) in Ministry of Environment, Forest (MoEF) Govt. of India, accepted a bribe of Rs.4,13,000/­ which was in form of bank draft (bearing no. 557534 dated 03.07.2012) in favour of VIT University, Vellore, Tamil Nadu made at the instance of S. Vaikundarajan, (Managing Partner of A­4) (hereinbelow referred as A­2) from the accounts of M/s V.V. Mineral, Chennai (hereinbelow referred as A­4).

2. It is disclosed that an application for environment clearance of A­4 was pending in Ministry of Environment and Forest (the name of Ministry is now changed as Ministry of Environment, Forest and Climate Change­MoEF&CC), where A­1 was Dy. Director.

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3. It is stated that the expenditure for the demand draft of Rs.4,15,000/­ (including commission) is shown in books of account of A­4 on 05.07.2012 as "donation MoEF Officer ­ Chennai payment".

4. It is claimed that MoEF is the nodal agency in administrative structure of Central Government for planning, promotion, co­ordination and to oversee the implementation of India's environmental and forestry polices and programme. The Impact Assessment Division of MoEF&CC has three divisions i.e. IA­I, IA­II and IA­III. IA­II division deals with industrial projects and mining, whereas, the procedure, which is followed at the Ministry, is detailed in the charge sheet.

5. It is alleged that as per the investigation, A­1 was transferred from Regional Office, Chandigarh on 23.01.2012 to MoEF (Hqs), New Delhi and was posted in IA­II division to lookafter the work of mines, whereas, A­2 is the Managing Partner A­4.

6. It is claimed that earlier clearances of A­4 were processed in IA­III division.

7. The further investigation revealed that A­4 was accorded CRZ clearance for their operation in Tirunelveli District, Tamil Nadu in the year 2005­06 by MoEF&CC, New Delhi. A­4 employed A­3 Ms. Subbulakshmi as Liaison Officer on contract basis for the years 2011 till early 2013 to lookafter company's work such as obtaining environmental clearances from Government agencies situated outside Tamil Nadu.

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8. In May, 2012, Industries (MIE2) Department, Secretariat, Chennai, on application of A­4, recommended to Ministry of Commerce, Government of India, New Delhi for grant of "formal approval" to A­4 for setting­up SEZ in an extant of 166.66.5 hectares of land in Tiruvembalapuram Village, Radhapuram Taluk, Tiruneveli District, Tamil Nadu, the copy of which recommendation letter was sent to M/s V.V. Mineral (A­4). Thus, it was clear to A­4 that they have to approach MoEF&CC for environmental clearance in near future for which the services of A­1 would be needed.

9. The proposal of A­4 was approved by Ministry of Commerce, Government of India on 06.07.2012.

10. That Sidharth Khatri son of A­1 secured admission in B.Tech. Mechanical Engineering Degree course at VIT University, Vellore, Tamil Nadu during academic year 2012­2013 for which admission, an amount of Rs.4,13,000/­ was deposited with the said institute on 04.07.2012 by demand draft no. 557534 dated 03.07.2012.

11. A­1 with his son Sidharth Khatri traveled from Delhi to Chennai on 04.07.2012. The afore­mentioned demand draft was handed over to A­1 by Manager of A­4 M/s V.V. Minerals at Chennai on 04.07.2012.

12. The demand draft was issued from Federal Bank, Mount Road Branch, Chennai from account no. 11000100074068 which belonged to an employee of A­4. For this demand draft total amount of Rs.4,15,000/­ was deposited in cash in the aforementioned account on 03.04.2012 by R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 4 of 264 account holder on being given the same by a Manager of A­4 from the cash of the firm at Egmore, Chennai.

13. A­1 traveled from Chennai to Delhi on 05.07.2012 while air tickets from Delhi to Chennai and from Chennai to Delhi of both A­1 and his son were purchased by A­3, who only paid for aforesaid tickets.

14. It is revealed that in order to account for demand draft made, the Manager of A­4 prepared an Inter­office communication dated 03.07.2012 addressing it to A­2 stating that "as per instructions of Subbulakshmi, I have taken one demand draft in the name of VIT University payable at Vellore for Rs.4,13,000/­ for one MoEF Delhi officer kindly reimburse the amount spent of Rs.4,15,000/­ [Rs.4,13,000/­ (for demand draft) + Rs.1,361/­ (bank charges) + Rs.639/­ (conveyance and food)]. Copy of Demand draft enclosed". On this inter­office communication, A­2 S. Vaikundarajan gave directions in his own handwriting in Tamil as "Koduttu Vittu Donation Kanakkil Eluthavum" which means "give that money and make entry in donation account". On this, amount was reimbursed to the Manager. A cash payment voucher was prepared on 05.07.2012 by the then Account Manager of A­4 showing the debit of Rs.4,15,000/­ as donation (MoEF officer­ Chennai payment) which was approved by A­2.

15. In the ledger account of A­4 for the financial year 2012­13, expenditure of Rs.4,15,000/­ incurred in obtaining demand draft of Rs.4,13,000/­ with commission of Rs. 2,000/­ has been shown as "MoEF R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 5 of 264 Officer, Chennai payment" on 05.07.2012.

16. In ITR of A­4 for financial year 2012­13 (assessment year 2013­14), total sum of Rs.43,73,000/­ including an amount of Rs.4,15,000/­ is shown as donations which documents have been maintained in normal course of business.

17. It is disclosed further that A­2 on 15.10.2012 submitted a letter under his signatures as Managing Partner of A­4, which was addressed to Secretary, MoEF through A­4 and also submitted form­I alongwith pre­feasibility report for seeking Terms of Reference for environmental clearance.

18. This application was submitted in Central Registry of Ministry on 15.10.2012 and was marked to IA­III. The acknowledgment of the same was given by officials on duty on copy of A­4.

19. The acknowledgment copy/letter bearing acknowledgment date 15.10.2012 alongwith enclosures was submitted in IA­II division by A­

4. On the said acknowledgment copy it was endorsed by A­1 as "to be considered in next EAC meeting (November) urgent" and marked to SO, IA­II. This endorsement was made on 15.10.2012.

20. It is claimed that enclosures to the letter bearing acknowledgment dated 15.10.2012 are incomplete as it does not bear the signatures of A­ 2 at all places required, while the enclosures submitted with the letter to Central Registry bears the signatures of A­2. It is stated that there should R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 6 of 264 have been proper processing of the matter which includes allotment of file number by the section, scrutiny of entire documents submitted before A­1, a note regarding putting the file in next EAC and that, the present matter of A­4 should have been dealt in IA­III Section of the Ministry.

21. It is claimed that A­3 was present in Delhi from 1 st to 3rd July, 2012 and after confirming from A­1 and A­3 the details of demand draft to be made, were confirmed by Manager of A­4. The manager was instructed by A­3 who had confirmed from A­2, whereafter only the demand draft was made and handed over to A­1.

22. Further, the presence of A­1 was confirmed at Vellore on 04.07.2012 and that of A­2 was confirmed on 15.10.2012 at Delhi.

23. Investigation revealed that A­1 had been earlier caught red­handed while accepting and demanding bribe of Rs.7,00,000/­, which was investigated vide case No. RC 1(A)/2013/CBI/ACU­V dated 16.01.2013 in which he had been charge­sheeted on 17.05.2013 and charges have been framed on 10.02.2014 which suggested that he is a habitual of accepting bribe.

24. It is stated that A­1 demanded through A­3 and accepted an amount of Rs.4,13,000/­ as illegal gratification in form of a demand draft, which A­2 directed to be paid to him from account of A­4 showing it as donation, in return of which, A­1 extended undue favour of mentioning on the proposal of A­4 dated 15.10.2012 for seeking Terms of Reference R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 7 of 264 for environmental clearance of products specified (mineral based) SEZ project despite the proposal being incomplete. It is alleged that the processing was improper and the said proposal should have been processed in IA­III Section of the Ministry.

25. Further, A­1 accepted air tickets for traveling from Delhi to Chennai on 04.07.2012 and from Chennai to Delhi on 05.07.2012, which were paid by A­3.

26. Subsequent to submission of the charge­sheet alongwith documents, ld. predecessor took cognizance vide order dated 31.03.2017 and summoned the accused persons.

27. On compliance of directions for supply/scrutiny of documents/copies etc., order on charge was pronounced, as the application for discharge of A­1 was rejected and the charge against all the accused persons was framed under Section 120­B IPC read with Sections 7, 11, 12, 13(2) read with Section 13(1)(a) and Section 13(1)(d) of PC. Accused Neeraj Khatri (A­1) was also separately chaged under Sections 7, 11, 13(2) read with 13(1)(a) and 13(1)(d) of PC Act. A­2 S. Vaikundarajan, A­3 Ms.Subbulakshmi and A­4 M/s v.V. Minerals were also separately charged u/s 12 P.C. Act.

28. After the charge was decided, evidence is led. Prosecution in all examined 34 witnesses. The substance of the examination of witnesses is reproduced for reference as under :

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29. PW­1 Sh. Vazir Singh was witness to sanction. He exhibited sanction order dated 09.03.2017 bearing No. 15011/02/2016­AVU against A­1, who was posted as Scientist­C (Dy. Director), IA­II Division of MoEF. The witness was posted as under Secretary in the Ministry and stated that Hon'ble President of India through Hon'ble Minister was pleased to grant sanction to prosecute A­1, which order he exhibited as Ex.PW1/A. He also stated that in present case the Hon'ble President of India is the competent authority to prosecute and as per Transaction of Business Rules, concerned Minister is competent on behalf of Hon'ble President of India to grant sanction. He had placed for reference the business rules (Allocation of Business Rules) as mark­ AA.

30. He explained that once a request for sanction is received in the department for prosecuting from any agency, the concerned Vigilance section examines the case and puts up a note to the Hon'ble Minister through channel of Dy. Secretary, Chief Vigilance Officer, Secretary and then the Hon'ble Minister. In this case after the request for sanction for prosecution from CBI was received, same procedure was followed. He stated that after application of mind on behalf of Hon'ble President, the Hon'ble Minister grants sanction wherever he deems it fit and on receiving the permission to prosecute, the Section Officer of Division prepares a draft sanction letter and again submit it to the Hon'ble Minister through proper channel. He stated that draft sanction order was already received from Hon'ble Minister with his approval and he being R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 9 of 264 Conveying Officer signed and conveyed the order to Hon'ble Minster to prosecute A­1. He had sent the same sanction order with a copy to the concerned administrative division.

31. In cross­examination, he revealed that draft sanction order was prepared by Section Officer namely Ashok Kumar. He had seen the concerned file on that basis, he was making statement that draft sanction order and sanction order was prepared by Ashok Kumar, Section Officer. He further stated that he had carefully read the sanction order Ex.PW1/A before signing the same and had also read all the notings on the file with regard to sanction order prior. He had seen the documents which were enclosed with the proposal from CBI.

32. He disclosed, before his joining the office, the sanction was accorded by the Hon'ble Minister on behalf of Hon'ble President and the draft sanction order was also approved by the Hon'ble Minister and the same has been conveyed to the CBI by him as being Conveying Officer. He stated that he had also perused the available records before signing the sanction order. While the contents of Ex.PW1/A at point A to A1 and B to B1 were part of the notings of the file, he had seen the documents as the notings were based on them. Similar was his response regarding contents of sanction from point C to C1 being based on the notings of the file. The suggestions that there was no application of mind before giving sanction in the present case and that, he had singed and conveyed the sanction order in mechanical manner, were denied by him. He further denied that the sanction is made under pressure from R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 10 of 264 CBI and that, he is not the competent witness to depose on the aforesaid aspects.

33. PW­2 Sh. Shekhar Ranjan Amin (Under Secretary, Ministry of Environment, Forests and Climate Change, New Delhi) was an official of Personnel Section. Vide receipt memo dated 06.04.2016, which was exhibited as Ex.PW2/A, he had given three documents to DSP, CBI. Copy of office order dated 01.02.2012 bearing his signatures was exhibited by him as Ex.PW2/B. He had then exhibited copy of office order dated 23.01.2012 as Ex.PW2/C and letter dated 05.04.2016 as Ex.PW2/D.

34. He also deposed that no intimation pertaining to any loan of Rs.4,15,000/­ was received from A­1, which information was furnished to him by Sh. Ashok Kumar. He identified signature of Ashok Kumar, whereafter, letter dated 10.08.2016 was exhibited as Ex.PW2/E. He deposed that office memorandum dated 08.08.2016 was bearing his signature at point A, which was then exhibited as Ex.PW2/F. The OM was accompanied by duly attested photocopy of leave account of Sh. Om Prakash from 01.06.2012 to 31.12.2012, which was signed by him at point A and was exhibited as Ex.PW2/G. He further stated for attesting the Bio­ data of A­1 at point A alongwith rubber seal of his office, which was then exhibited as Ex.PW2/H. The page of service book dealing with annual increment was stated to be also attested by him at point A alongwith rubber seal of his office, which was exhibited as Ex.PW2/I and the entry in the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 11 of 264 service book regarding appointment of A­1 to the post of Scientist­C in MoEF was also stated to be attested by him at point A and bearing rubber stamp of his office, which was then exhibited as Ex.PW2/J and the entry in the service book regarding appointment of A­1 on temporary basis to the post of Scientist­C in MoEF was also stated to be attested by him and the same as exhibited as Ex.PW2/K. The entries pertaining to Sixth Pay Commission revision in the salary of A­1 in the service books were also attested by him, which was exhibited as Ex.PW2/L. Entry regarding enrolling member of CGEGIS in the service book was also attested by him and was exhibited as Ex.PW2/M. Entry pertaining to annual increment in the salary of A­1 as noted in the service book was also stated to be attested by him and was exhibited as Ex.PW2/N. Entries regarding pay revision in the salary of A­1 as per Sixth Pay Commission Report recorded in the service book was also attested by him and was exhibited as Ex.PW2/O. Entries consequent upon transfer of Sh. Neeraj Khatri to Regional Office, Chandigarh as recorded in the service book were also attested by him and were exhibited as Ex.PW2/P. Entries regarding transfer of A­1 to Regional Office, Chandigarh as recorded in service book were exhibited as PW2/P, entry regarding LTC for block year 2006­09 and 2010­2013 attested by this witness were exhibited as Ex.PW2/Q and the entries pertaining to transfer of A­1 from Chandigarh to Delhi under his attestation were exhibited as Ex.PW2/R. Similarly, entries pertaining to leave encashment of A­1 for meeting expenditure of LTC (Home Town) from 31.12.2011 to 01.01.2012 were exhibited as Ex.PW2/S. The entry R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 12 of 264 pertaining to order dated 16.05.2012 regarding transfer of A­1 to Delhi was Ex.PW2/T. He further stated that A­1 has not availed any commuted or earned leave during July, 2012 in Delhi. There is no cross­examination by any of the defence counsel of the statement made by this witness.

35. PW­3 Sh. Varun Saihgal, Advisor (Administration), VIT University, Vellore exhibited the letter written by Dr. Satyanarainan, Registrar of VIT University addressed to CBI, whose signatures he identified since he dealt with the correspondence which he exhibited as Ex.PW3/B. In this letter, a receipt of VIT University in name of Sidharth Khatri S/o Neeraj Khatri for 2012 for an amount of Rs. 4,13,000/­ was also given, which was the duplicate copy of receipt. It was having the rubber stamp of VIT University and signed by Sh. Laxminarainan, Account Officer. This receipt was handed over by him to CBI after taking the same from the Registrar of VIT University, which he exhibited as Ex.PW3/C.

36. He also deposed qua provisional admission letter dated 04.07.2012 of Sidharath Khatri in VIT University and identified the signatures of Admission Officer Sh. E. James Jebaseelan Samuel at point A, which he then exhibited as Ex.PW3/D. He also exhibited bank details of VIT University signed by Head of Institution Sh. Satyanarainan as Ex.PW3/E. The witness was not subjected to any cross­examination.

37. PW­4 Sh. K.B. Singh, Section Officer, MoEF & CC deposed that as per their official record, in the year 2012, there were two Dy. Directors R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 13 of 264 namely Sh. Om Prakash and Sh.Neeraj Khatri. He revealed that as per office record, no record is available to ascertain whether Neeraj Khatri applied for casual leave or performed tour to Chennai. The witness was not cross­examined.

38. PW­5 Sh. Sathiyanantha Subramanian Chartered Accountant had been engaged with firm M/s Vairavanathan & Company (headed by Sh. S. Vairavanathan, who also happened to be his father and a CA). He exhibited ITR of A­4 M/s V.V. Mineral for assessment year 2013­14, the audit was conducted by their company. He deposed that form 3C (Audit Report) of A­4 was conducted by their firm and the report was prepared and signed by his father digitally and the digital code and name of his father was mentioned at point A, certified copy of audit report was exhibited as Ex.PW5/1.

39. The certified true copy of ITR of A­4 for assessment year 2013­14 was Ex.PW5/2. The certified copy of Profit & Loss was also prepared by his father, which he exhibited as Ex.PW5/3. The true copy of Balance­Sheet dated 31.03.2013 was exhibited as Ex.PW5/4. The statement of depreciation of firm M/s V.V. Mineral and Schedule was Ex.PW5/5. He stated that after seeing Ex.PW5/3 (Profit & Loss statement) that an amount of Rs.43,73,000/­ was shown as donation, which then was marked at point A. He explained that if donation is given to any charitable, religious and education institutions then a donor could claim tax benefit under Section 80G of Income Tax Act but in the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 14 of 264 present case, donor cannot claim any income tax benefits. He explained that as per statement shown Ex.PW5/3, tax was paid on donation amount of Rs.43,73,000/­ in which amount of Rs.4,15,000/­ dated 05.07.2020 was also included. He revealed that he cannot recollect if document mark ­PW5/A was shown to him at the time of audit as well.

40. In his cross­examination by ld. Counsel for A­1, he stated that his father audited ITR of A­4, during subsequent years as well, and the amount of Rs.4,15,000/­ was returned by officer of MOEF&CC in subsequent year, which fact, he did not convey to CBI and explained that it was not asked from him.

41. PW­6 Sh. Sudhir Kumar had been working as office attendant with MoEF since 2007. He stated about the duties of office attendant is to clean office, dispatch the file from one office to other etc. He deposed that Mr. Ahmed was data entry operator in the office and Mr. Neeraj Khatri was Dy. Director in the year 2012 and he could identify his handwriting and signatures. He was shown letter dated 15.10.2012. Seeing it, he stated that the letter bears handwriting and signatures of A­ 1 Neeraj Khatri at point A and bears the handwriting of Mr. Ahmed at point B, which document was then exhibited as Ex.PW6/1. He was not cross­examined.

42. PW­7 Sh. Surender Kumar had been posted in MOEF & CC as Scientist­F since 13.06.2016 till 30.06.2016. During his tenure, CBI collected information and documents from him, which he handed over.

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He identified the production­cum­seizure memo dated 29.08.2016 under his signatures and exhibited it as Ex.PW7/1. He further exhibited letter written under his signatures dated 26.08.2016 addressed to Smt. Shobha Dutta, Dy. SP AC­II, CBI alongwith enclosure­I to IV, which he then exhibited as Ex.PW7/2.

43. He was cross­examined by ld. Counsel for A­1, A­2 and A­4 and inquired about normal procedure in sending the file to EAC (Expert Appraisal Committee). The witness clarified that at the relevant time proposal was received manually in R&I Section, which then was sent to IA­II (Impact Assessment Section) for non­coal mining, whereafter, agenda was prepared by Member Secretary with the assistance of Section Officer of EAC and thereafter, meeting of EAC was held and on approval of matter in committee, minutes were prepared, whereafter, the Ministry takes action on those minutes. He stated that proposal in IA­II division is cleared as per EIA notification of 2006, which he had seen bearing date 14.09.2006 and was then exhibited as Ex.PW7/DX1. He answered that after perusing form­I at page no. 19 of Ex.PW7/DX1, he could not say as to whether the signatures of proponent are required or not.

44. PW­8 Sh. Praveen had been working in MoEF& CC since August, 2004. At the relevant time of his making the statement he was working as office assistant. On seeing letter dated 15.10.2012 addressed to then Secretary, MoEF by Managing Director S. Vaikundrajan (A­2) which contained a note written by the witness "letter is sent to IA­III R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 16 of 264 8039/CR/BH dated 08.11.2012", which he then exhibited as Ex.PW8/1, he explained that the letter was marked by him to IA­III Section because as per subject matter of the covering letter, the matter pertained to SEZ Project. No cross­examination of the witness was conducted.

45. PW­9 Sh. Vijay Roy, DGM, Spicejet had handed over documents through seizure memo dated 26.10.2016 which was signed by him and was exhibited as Ex.PW9/1. He also provided the travel details of passengers through letter dated 25.10.2016 under his signatures, which he exhibited as Ex.PW9/2. He had issued certification under section 65B of Indian Evidence Act, which he exhibited as Ex.PW9/3 for providing the computerized copy of travel record. He stated that through PNR No. WFQ7CE, passenger A­1 Neeraj Khatri, Sidharath Khatri and A­3 Subbulakshmi had booked their tickets from Delhi to Chennai on 03.07.2012 for travelling date 04.07.2012. The tickets were booked online on travel boutique through their sub agent Raja Travel and Tours CJB 25, J&K S.T. Patrick Complex, West Car Street, Nar CGS School, Tuticorin. While, A­3 Subbulakshmi canceled her ticket vide PNR no. BE13ED from Delhi to Chennai and re­booked her ticket from Delhi to Surat for the same date i.e. 04.07.2012 and her flight was at 6.05 AM. He stated that as per the documents, at page no.6 on Ex.PW9/4, which is PNR details of A­1 Neeraj Khatri and Sidharath Khatri they both boarded the flight on the same date at 6.30 AM from Delhi to Chennai. He deposed that page 11 of Ex.PW9/4 is PNR of passenger S. Vaikundrajan and Sh. Thangraj K. as they booked their R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 17 of 264 tickets from this PNR from Delhi to Chennai on 15.10.2012. He further revealed that page 12 of Ex.PW9/4 was PNR history chart of passengers namely S. Vaikundarajan and Thankgraj K. As per the document, both of them boarded at flight on the same date i.e. 15.10.2012 in the evening at 7.10 PM from Delhi to Chennai. The witness was not subjected to any cross­examination.

46. PW­10 Sh. Ashok Kumar, Under Secretary (Vigilance), MoEF & CC deposed that he was called by CBI in the month of October, 2016. He was shown document already exhibited as Ex.PW2/E, which was his covering letter to the then DSP Smt. Sobha Dutta, as per which, certain information collected from Admin, protocol, cash and Impact Assessment Division were supplied. As per para­2 of Ex.PW2/E, the record available in Vigilance division showed no information pertaining to loan of Rs.4,13,000/­being received by A­1 Neeraj Khatri, the then Dy. Director during the year 2012­13. He revealed that Annexure­II of Ex.PW2/E pertains to protocol division, as per which, no official air tickets were issued by protocol section for any official tour or visit by A­ 1 Neeraj Khatri during the period 2012, 2013 and 2014. This annexure he exhibited as Ex.PW10/1 which was bearing the signatures of Mr.S.S. Negi. He revealed that Annexure­III of Ex.PW2/E pertains to Cash Division, wherein, no record pertaining to loan of Rs.4,15,000/­ being pending/repayment of A­1 Neeraj Khatri, the then Dy. Director during the period 2012 and 2013 was shown. Similarly, this annexure also mentioned that no official tour/visits have been submitted by A­1 Neeraj R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 18 of 264 Khatri during the period 2012, 2013 and 2014. This annexure, he exhibited as Ex.PW10/2 which document was bearing the Signatures of Mr. Swapan Banerjee alongwith official seal. He revealed that Annexure­I pertained to P­1 Division and as per their record, no intimation was received about repayment of any loan of Rs.4,15,000/­ by A­1 Neeraj Khatri, which document was already exhibited as Ex.PW2/F. He further exhibited his letter dated 07.09.2016 by which he submitted the file No. 21­72/2012­IA­III to the then SP Ms. Kiran S. as Ex.PW10/4.

47. He deposed that Ex.PW10/4 was dealt with by IA­III Section, Ministry of Environment. He was not cross examined by A­1, however, ld. Counsel for A­2 and A­4 conducted his cross­examination, wherein, he stated that he could not recollect about CBI having shown him any document pertaining to loan of Rs.4,15,000/­ obtained by A­1 Neeraj Khatri in the year 2012­2013 from S. Vaikundarajan or M/s V.V. Minerals. He revealed that he did not make any enquiry from CBI about the documents on the basis of which the CBI had made the query to him. He denied that he had not furnished the complete record pertaining to annexure­I, II and III of Ex.PW2/E and of Ex.PW2/F was not the complete document. He denied suggestion that he was deposing falsely at the instance of CBI.

48. PW­11 Sh. Balasubramanian had been working as Reservation Manager of Raja Travels and Tours since 1998. He stated that he was called at CBI office in the month of August, 2016 and had submitted R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 19 of 264 certain documents. He admitted that seizure memo dated 29.08.2016 was bearing his signatures, through which, he supplied the travel details of Mr. S. Viakundarajan and Ms. Subbulakshmi from 01.01.2012 to 31.03.2013. The documents under seizure memo Ex.PW11/3 were collectively exhibited as Ex.PW11/2 as internal page 2 to 15. Each page bearing his signatures under official of M/s Raja Travels and Tours.

49. He visited the CBI office again in the month of October, 2016 and submitted certain documents. The production­cum­seizure memo dated 13.10.2016 was then exhibited by him as Ex.PW11/3 alongwith certificate under Section 65B of Indian Evidence Act. The documents against seizure memo Ex.PW11/3 were collectively Ex.PW11/4 bearing page 1 to 84 with the signatures of witness on each page. Certificate under Section 65B of Indian Evidence Act was exhibited as Ex.PW11/5.

50. The witness stated that Ms. Subbulakshmi maintained separate ledger account with Raja Tours & Travels and payments were made by her personally as her account was maintained separately from the ledger of M/s V.V. Minerals. He was confronted with copy of ticket bearing PNR no. WFQ7CE, on which, he responded that the same was booked by Subbulakshmi for herself and Mr. Neeraj Khatri and Sidharath Khatri and Subbulakshmi personally paid for these tickets, however, the payment is still pending. He stated that Subbulakshmi canceled her ticket while Neeraj Khatri and Sidharath Khatri performed their journey from Delhi to Chennai. The tickets were then collectively exhibited as Ex.PW11/6.

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51. The witness also stated that Subbulakshmi booked the return tickets of Neeraj Khatri from Chennai to Delhi and Subbulakshmi paid for it as per ledger entry at point X on Ex.PW11/4 (internal page no.1), photocopy of return ticket of Neeraj Khatri from Chennai to Delhi was then exhibited as Ex.PW11/7.

52. In cross­examination by ld. Counsel for A­1, A­2 and A­4, witness stated that whenever Subbulakshmi traveled for the purpose of V.V. Mineral, the payment was made by V.V. Mineral. He further stated about the tickets of Neeraj Khatri and Sidharth Khatri, the payment was received in 2017 from Neeraj Khatri in cash. Witness was not cross­ examined by ld. Counsel for A­3.

53. PW­12 Sh. Jagdish Kumar Chaturvedi is Section Officer, from MoEF&CC, who during his examination stated that in the year 2012 he was posted as UDC in CR Section. He was then shown letter dated 15.10.2012 submitted under signatures of S. Vaikundrajan, MD, M/s V.V. Minerals to the Secretary, MoEF&CC. He identified his signatures with official stamp of CR Section at point C of the document (already Ex.PW6/1), which was stated to be acknowledgment of latter of V.V. Minerals submitted personally at the office of MoEF&CC. He explained that the ministry put the stamp of CR Section only when the party submits the letter in person, otherwise, there could have been the dak number alongwith the date of CR Section.

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54. He further stated that the letter pertained to IA­II Section. He stated that the dak number alongwith date of CR Section is missing in this particular case due to shifting of office from CGO Complex to Jor Bagh, Lodhi Road. He explained that prior to year 2008 the entries were being done manually, however, the work of CR Section was computerized from the year 2008. He explained that in case of some defect or some technical problem in the computer system, diaries were made manually in the register on the same day or where the letters are received in the evening or on a holiday, the entries in register are made on the next date. He stated that in the year 2012, Neeraj Khatri was Dy. Director in IA­II Section. This witness was not cross­examined.

55. PW­13 Sh. S. Stephen Jeyaraj had provided the certified true copy of incorporation certificate u/s 58(1) of Indian Partnership Act of M/s V.V. Minerals under his letter dated 17.10.2016 which he then exhibited as Ex.PW13/A. He also exhibited the certificate which was in Tamil language, the copy of which was attested by him after taking photograph from record, which he exhibited as Ex.PW13/B. The certificate was issued in favour of company on 21.07.98. He was not cross­examined.

56. PW­14 Dr. Saroj was posted earlier as Director in Impact Assessment Division (Non­Coal Sector). She deposed that the duty of a Dy. Director was to assist in assessing the applications regarding the projects to see whether all requisite reports were submitted by the project proponent. She detailed that in 2011 system for awarding R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 22 of 264 the Terms of Reference and environmental clearance was that (i) the project proponent would submit the proposal to the Ministry through the CR Section; (ii) the applications were forwarded by the CR Section to the concerned section (iii) the concerned section officer would open a file and submit it to be Dy. Director (iv) the Dy. Director would examine the proposal as to all the required documents are in place and if so, then would submit the file to the Director and (v) the proposals were considered on first come first serve basis i.e. as and when received in the Ministry for consideration in the Expert Appraisal Committee (EAC).

57. She was shown the file bearing No. J 11015/435/2012 IA­II (M) which pertained to M/s V.V. Minerals, Tamil Nadu whereafter, she stated that as per the notings, the project was received in the Ministry on 31.10.2012.

58. She was shown proposal of M/s V.V. Minerals dated 15.10.2020, which proposal was already Ex.PW6/1 and thereupon, the notings encircled 'A' in red ink were in the writing of A­1 Neeraj Khatri as Dy. Director. She deposed that she "at no point of time" had directed A­1 Neeraj Khatri the then Dy. Director for placing the proposal before EAC in any meeting after her joining as Director in the year 2012.

59. The proposal was marked to Section Officer IA­II on 15.10.2012, whereas the diary number at point­B showed that it was sent to R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 23 of 264 Section Officer on 31.10.2012. The form­I was detailed application for Term of Reference (TOR). Pre­feasiblity report was the part of the application of TOR.

60. She was cross­examined by ld. Counsel for A­1, A­2 and A­4, wherein, she detailed that role of Dy. Director is to assist the meeting of EAC in noting down Minutes of Meeting and also to pin point shortcomings in the documents. In a specific question about authority of A­1 Neeraj Khatri in environmental clearance process the then Asstt. Director, she described that the role of accused was to assist the meeting of EAC in nothing down the Minutes of the Meeting and also to pin point the shortcomings in documents. The authority for granting environmental clearance is based on the recommendation of EAC, which lies with concerned Joint Secretary/Addl. Secretary/Secretary to the Government of India. In response to another specific question, she replied that the Director as Member Secretary of EAC is the final authority in putting up the proposal for EC meeting as he finalizes the agenda proposed to be discussed in EAC, while the concerned Section Officer having the record as to when the proposals were received puts up the agenda to be discussed in the EAC meeting to the Director through Dy. Director.

61. It was denied specifically that as per office procedure manual of the relevant time, Dy. Director was competent to receive the proposal directly from project proponent she volunteered that as per the procedure prevailing in 2012 all the proposals were to be R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 24 of 264 submitted to the CR Section which were then forwarded to the concerned section for opening the file.

62. In response to a specific question regarding putting up of proposal of M/s V.V. Minerals in EAC meeting in the month of November, 2012, after checking the record, witness replied that the document in PDF format was not available and the application of the present proposal would be considered only when the document in PDF format is submitted in the Ministry and therefore, the proposal of M/s V.V. Minerals was not placed in EAC meeting of November, 2012. She was not subjected to cross­examination by A­3.

63. PW­15 Sh. Amjith C. Johan, Senior Manager (Legal), Federal Bank, Zonal Office, New Delhi. He deposed that he had visited CBI office on 03.05.2016 with the summoned record. He handed over the original demand draft bearing no. 557534 dated 03.07.2012 for Rs.4,13,000/­ against seizure memo dated 03.05.2016, which seizure memo he was shown and he identified his signatures thereupon, whereafter, it was exhibited as Ex.PW15/A. He revealed that as per the instrument it was presented for clearing through Indian Bank at VIT, Vellore, Tamil Nadu. He then exhibited the Demand Draft as Ex.PW15/B. He was not subjected to any cross­examination.

64. PW­16 Sh. Jainuddin Ali Ahmed @ Ahmad was working as Data Entry Operator in the year 2012 at Impact Assessment­II Division in Ministry of Environment and Forest when A­1 Neeraj Khatri was the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 25 of 264 Dy. Director in the said Division. He was assigned the job of making entries of outgoing dak/files and typing of official material whichever was asked from him in computers. He revealed that in the year 2012, outgoing dak entries were made manually in diary register maintained in their office. He was then shown letter dated 15.10.2012 (Ex.PW6/1) of Sh. S. Viakundarajan, on which dak entry at point B was in red pen encircled. He stated that on this endorsement word "31" is not written by him and is a overwriting. Further, on the said letter, there was an endorsement already made by Neeraj Khatri (A­1) dated 15.10.2012, which was marked as 'A'. He identified the handwrting and signatures of A­1 Neeraj Khatri. He revealed that the letter Ex.PW6/1 (dated 15.10.2012) was diarized by him since it was received after 15.10.2012. Though, he could not disclose as to who made the overwriting "31" on the date, he stated that he was to enter the dak in the dak register whenever the same was received either from accused or through peon.

65. He further stated that there is Central Registry Section in the office whether the letters/proposals/dak are received and sent to concerned official. The Central Registry puts the diary number on the said letter/proposal and there is no CR entry on the letter Ex.PW6/1. He was shown the provisional admission letter dated 04.07.2012 already exhibited as Ex.PW3/D on which he identified the signatures of A­1 Neeraj Khatri at point B. R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 26 of 264

66. PW­17 Sh. N. Selvam was working as Asstt. General Manager, Indian Bank, VIT Branch, Vellore. On request of CBI he has sent the information pertaining to the account of VIT, Vellore against his letter dated 12.04.2016, which letter he exhibited as Ex.PW17/A.

67. He was shown certified copy of statement of accounts of VIT, Tiruvalam Road, Katpadi, Vellore. It was comprising of one page and was dated 10.07.2012, on this certified copy he identified his signatures alongwith official seal at point A, which he exhibited as Ex.PW17/B. He was shown the credit entry for amount of Rs.1,26,85,355/­ dated 10.07.2012 bearing clearing no. 000579. He was also shown certificate under Section 65B(4)(c) of Indian Evidence Act pertaining to aforesaid statement of accounts bearing his signatures alongwith official seal at point A, which he exhibited as Ex.PW17/C. He was also shown certificate under Section 2A of Bankers Book of Evidence Act, which he exhibited as Ex.PW17/D. Both the aforesaid certificates in respect of the above statement of accounts Ex.PW17/B ran into two pages and were bearing his signatures on both the pages alongwith official seal at point A, which he exhibited as Ex.PW17/D. He was not subjected to any cross­examination.

68. PW­18 Sh. P. Sreenivasan was working as Office Assistant in V.V. Minerals in the year 2012, when Sh. Raja was the Manager of the company. He stated that Chennai office where he was posted deals with liason work, marketing etc. R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 27 of 264

69. He was shown deposit slip dated 03.07.2012, which bore his signatures at point A, which he then exhibited as Ex.PW18/A. He stated that deposit slip was filled by him on asking of then Manager Sh. Raja. He deposited the amount mentioned in the deposit slip in cash in Federal Bank in Account No. 74068. the cash amount was handed over to him by Sh. Raja. He was then shown Account Opening Form pertaining to account No. 74068. The Account Opening Form was pertaining to him and contained his signatures at point X­1 and X­2 on first page and at point X­3 on second page. Account Opening form was then exhibited as Ex.PW18/B. He admitted the photograph pasted on Account Opening Form at point Y as his photograph.

70. He was then shown the DD application slip dated 03.07.2012 on which he identified his signatures at point A. The application was in his own handwriting seeking preparation of DD in favour of VIT University, Vellore, which was then exhibited as Ex.PW18/C.

71. He was then shown the cheque of his account issued by him in favour of "yourself" DD dated 03.07.2012 for Rs.4,14,161/­, on which he identified his signatures which was then exhibited as Ex.PW18/D. He had also filled the application form for additional facilities which bears his signature on second page at point A, which was then exhibited as Ex.PW18/E. He exhibited letter dated 22.09.2010 R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 28 of 264 written to Manager, Federal Bank, Mount Road Branch, Chennail for change of his address in bank records, which was exhibited as Ex.PW18/F bearing his signature at point A. He admitted the DD already Ex.PW15/B, which he had got prepared on 03.07.2012. He stated that his account number was 7406 but after computerization his account number was changed as 74068.

72. In cross­examination, he was put a close question suggesting that the demand draft of the amount of Rs.4,13,000/­, which was deposited in VIT, Vellore was on behalf of A­1 Neeraj Khatri on loan basis, to which, he replied as "Yes". He was inquired about the return of amount of Rs.4,13,000/­, to which he replied it was returned by Neeraj Khatri in the year 2014­2015. He was not subjected to any cross­examination by A­3.

73. PW­19 Smt. K. Chitra had worked with A­4 V.V. Minerals as Manager from October 2010 till October, 2018. She admitted her letter dated 07.05.2015 (Ex.PW19/A), through which, she had provided documents mentioned therein to CBI.

74. She admitted the cash payment voucher dated 05.07.2012 for amount of Rs.4,15,000/­ bearing signatures of Sh. S. Viakundarajan, the then MD of the company which was exhibited then as Ex.PW19/B. She was further shown inter­office communication of 03.07.2012 between Sh. S. Raja, Manager of V.V. Minerals, Chennai and Sh. S. R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 29 of 264 Vaikundarajan, Managing Partner, V.V. Minerals. She identified signatures of Sh. S. Raja at point 'A' and that of Sh. S. Vaikundarajan at point 'B'. She read the hand written endorsement on the said communication in Tamil language at point X, which meant "please pay and book under heading donation". The communication was Ex.PW19/C. She was shown photocopy of DD for Rs.4,13,000/­ dated 03.07.2012, which she handed over to CBI alongwith her letter Ex.PW19/D. She was also handed over the pen drive containing soft copy of the documents, which was then exhibited as Ex.PW19/E. She was then shown the Ledger Account of M/s V.V. Minerals of 2012­13 pertaining to heading "Donation" w.e.f. 01.04.2012 to 31.03.2012 (already Ex.PW5/A). She stated that the endorsement were made in the Ledger by Accountant under her directions and she admitted that there was cash entry dated 05.07.2012 of amount of Rs.4,15,000/­ pertaining to MOEF Officer Chennai payment, which was marked as X to X­1.

75. During the cross­examination, she admitted that donation of Rs.4,15,000/­ was disallowed by the Income Tax Department on the ground that "it was not relevant to the business". She then in response to a suggestion, stated it to be correct that this amount of Rs.4,15,000/­ was treated as loan to A­1 Neeraj Khatri.

76. She admitted that A­2 Vaikundarajan has two colleges. She stated that he gives donations to meritorious students in he name of his father. She volunteered that amount disallowed on account of donation was not R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 30 of 264 Rs.4,15,000/­ but Rs.43,73,000/­. She was then asked the following question as to whether "due to oversight Mr. Vaikundrajan endorsed the aforesaid amount of Rs.4,15,000/­ as donation", to which, she answered as "Yes, it is correct". She stated it to be correct that Rs.4,15,000/­ was returned by A­1 Neeraj Khatri, whereafter, she was put a court question about the time when this amount was returned and through which mode, to which, she replied that it was returned in cash to Mr. Vaikundarajan in October, 2013". She claimed that it was reflected in ITR of M/s V.V. Minerals as Mr. S. Vaikundrajan's drawings for the financial year 2013­ 14 and the assessment year 2014­15 (though no such copy of ITR was placed). She was not subjected to any cross­examination by A­3.

77. PW­20 Sh. K. Peter was working as Chief Manager, Federal Bank, Mount Road Branch, Chennai. He was shown his letter dated 11.12.2014, which he admitted to have written in response to a notice under Section 91 Cr.P.C. received from SP, CBI, which was then exhibited as Ex.PW20/A. Through this letter, he had provided original documents Ex.PW18/B and Ex.PW18/F. He was then shown the statement of accounts pertaining to Mr. P. Sreenivasan for the period 01.01.2006 to 03.02.2007 and period 03.02.2007 to 31.07.2013 bearing his initials at point A and official seal at point B on all 16 pages, which was then exhibited as Ex.PW20/B. He had also issued certificate under Section 2A of the Bankers Book of Evidence Act and under Section 65B(4)(c) of the Indian Evidence Act in respect of said statement of accounts of Mr. P.Sreenivasan, which were exhibited as Ex.PW20/C R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 31 of 264 and Ex.PW20/D. His another letter 22.12.2014 in response to notice under Section 91 Cr.P.C. issued by SP, CBI was then put to him, which he affirmed and exhibited it as Ex.PW20/E, by which he had provided the documents, out of which, voucher Ex.PW20/F was specifically shown by him. He also exhibited letter dated 19.12.2014 received from Insp. CBI Sh. Yasir Arafat for providing vouchers as Ex.PW20/G.

78. PW­21 Dr. U. Sridharan had worked with the Ministry of Environment and Forest as Scientist since 1990. He was posted from 23.02.2015 to 13.06.2016 at Delhi in capacity as Director in Impact Assessment Division (non­coal mining), during which period, CBI was investigating the present case and on approval of competent authority he had provided the file requisitioned by CBI and had explained the process of providing environmental clearance to the projects.

79. He revealed that Impact Assessment Section deals with the grant of environmental clearance for development projects which are listed in Schedule of the environmental impact assessment notification notified under Environmental (Protection) Act, 1986. He detailed that procedure followed in the Ministry of Environment and Forest and Climate Change with respect to the environmental clearance

80. He stated that the Director of Impact Assessment­II Division is responsible for placing proposals of non­coal mining sectors in the expert committee for scrutiny. Dy. Directors/Joint Directors/Addl. Directors assist the division head in this process. Impact Assessment R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 32 of 264 Section deals with the files pertaining to all the proposals including non­ coal mining sectors. The Member Secretary of the expert appraisal committee who is usually the Director of the concerned section of the Impact Assessment Division places files to EAC. The officer including Dy. Directors, who are attached with particular division assist the Member Secretary in preparation of agenda to be placed in EAC". After EAC meeting, Minutes of Committee are prepared and is approved by the Chairman of the EAC. The approved Minutes of Meeting are uploaded in the Ministry's website.

81. He was then shown file no. FN.21­72/2012/IA­III (Ex.PW10/4) containing letter dated 15.10.2012 (Ex.PW6/1) of M/s V.V. Minerals alongwith application for environmental clearance, form no.1 and pre­ feasibility report. As per nothing 1/N, the file was dealt by IA­II in the month of October, 2012. He was not subjected to any cross­examination.

82. PW­22 Mrs. Nandini R. Nair, Dy. Director (Investigation), Income Tax Department, Unit­II(1), Chennai deposed that in the month of April, 2016, while she was posted as Assistant Commissioner of Income Tax, Circle­1, Tirunelveli, Tamil Nadu, she received a requisition of documents under Section 91 Cr.P.C. dated 05.04.2016 by DSP Unit­VI, CBI Anti Corruption, New Delhi pertaining to the case of M/s V.V. Minerals, in response to which, she wrote a letter dated 07.04.2016, which she exhibited as Ex.PW22/A. She was then shown Annexure­I i.e. ITR for the assessment year 2013­14 (already Ex.PW5/2), Annexure­II i.e. audit report in form no. 3CB (already R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 33 of 264 Ex.PW5/1) and Annexure­III i.e. statement of income, profit & loss account and balance sheet (already Ex.PW5/3), which all pertained to M/s V.V. Minerals against PAN No. AAGFS5361Q/AC CIR, which were certified by her alongwith her official seal. She stated that in Annexure ­III (Ex. PW5/3) a donation of Rs.43,73,000/­ has been paid as per Profit and Loss Statement As per this statement, donation paid has been disallowed and added back to business income and offered to taxes. As per the audit report (Ex.PW5/1), in column no. 17(b), Rs.68,38,548/­ has been qualified as personal expenditure, which includes income tax and donations amount as mentioned in Ex.PW5/3. The assessee M/s V.V. Minerals themselves have offered donation amount of Rs.43,73,000/­ for taxation under Section 37 of the Income Tax Act since under the Act donation is not taxable expenditure. She was not subjected to any cross­examination.

83. PW­23 Sh. S.S. Negi had been posted as Under Secretary (P­1) in the Ministry of Environment, Forest and Climate Change, New Delhi in the month of May, 2016. He knew A­1 Neeraj Khatri and one Sh.Om Prakash as they both were working as Scientists in the Ministry. His office received a letter from CBI requiring information regarding posting of Neeraj Khatri and Sh.Om Prakash in furtherance of which he visited CBI office on 19.05.2016 alongwith attested copies of requisite documents, which he handed over to DSP, CBI. He was shown seizure memo dated 19.05.2016, on which he identified his signatures and exhibited it as Ex.PW23/A. Through this seizure memo he handed over R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 34 of 264 the documents of transfer and posting of A­1 Neeraj Khatri dated 11.04.2007, 24.06.2008, 11.07.2011, 23.1.2012 and 01.02.202 which he collectively exhibited as Ex.PW23/B.

84. During cross­examination by ld. Counsel for A­1, A­2 and A­4, he stated that as per office order bearing No. A­22011/1/2009­P.I dated 01.02.2020, he was posted in Impact Assessment Division of MoEF to look after the work of mines. He was not subjected to any cross­ examination by A­3.

85. PW­24 Sh. S. Arunachalam, Asstt. Manager, M/s V.V. Minerals deposed that since 2006, he was working as Clerk with M/s V.V. Minerals and was promoted in the year 2011 as Asstt. Manager (Accounts). His section was maintaining the Books of Accounts of the company. He was shown Ex.PW19/C inter­office communication dated 03.07.2012 received from their Office Asstt. alongwith photocopy of demand draft (already Ex.PW19/D). The inter­office communication was written by Sh. S. Raja, Manager of Chennai Branch of M/s V.V. Minerals to Mr. S. Vaikundarajan, Managing Partner for the purpose of reimbursement of the amount of Rs.4,15,000/­ to Mr. S. Raja. He stated that their accountant sent this amount in cash to Sh. S. Raja through the driver of company. On this letter, there was an endorsement in Tamil at point X in Tamil, which translated as "sent the amount accounting in donation account". He was shown the donation Ledger Account for the year 2012­13, where there was an entry of R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 35 of 264 Rs.4,15,000/­ dated 05.07.2012 pertaining to donation of MoEF Officer, Chennai payment mark X. He exhibited the Ledger Account as Ex.PW24/A. He stated that entry was made on directions of Ms. Chitra, CA. The total donation amount for the financial year 2012­13 was Rs.43,73,000/­. He was also shown the ITR for the assessment year 2013­14 (already Ex.PW5/2), where the company has shown Rs.43,73,000/­ as add "admissible expenses under head donations which includes Rs.4,15,000/­ as mentioned in statement of taxable income (already Ex.PW5/3)", when he stated that accordingly the tax was paid on Rs.43,73,000/­. He was also shown yellow colour cash payment voucher dated 05.07.2012 (already Ex.PW19/B), the writing was identified by him as that of Ms. K. Chitra. He also identified signatures of S. Vaikundarajan at point 'A'. He was also shown letter of Sh. S. Vaikundarajan, which he exhibited as Ex.PW24/B with signatures of S. Vaikundarajan.

86. During cross­examination, he stated that Ms. K. Chitra, CA was the In­charge of Accounts Department and he was working under her. He affirmed as correct that documents Ex.PW19/B and Ex.PW19/C were being handled by Ms. K. Chitra, CA and he did not know about it. He affirmed as correct that he had no knowledge about document Ex.PW24/B. He affirmed as correct that the entries were made by the subordinates in the accounts ledger but with the approval and as per directions of Ms. K. Chitra. He was not subjected to any cross­ examination by ld. Counsel for A­3.

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87. PW­25 Sh. S. Raja deposed that he had joined M/s V.V. Minerals, Chennai in the year 1996 as Clerk and was promoted as Manager in the year 1998. As per him, Chennai Branch was looking after pending legal matters, procurement of material for the factory in Keeraikaranthattu in District Truneveil, Tamil Nadu. He was shown DD for amount of Rs.4,13,000/­ (already Ex.PW15/B), which he stated was got prepared on the instructions of Smt. Subulakshmi, who was working as Liaison Officer for the company on contract basis. He deposed that Ms. Subulakshmi was dealing with Ministry of Environment and Forest. She was directly dealing with Sh.Vaikundarajan, Managing Partner of the company. He was not aware about demands made by corporate office to Smt. Subulakshmi for her services rendered to the company.

88. He stated that on being asked by Smt. Subulakshmi, he got the DD (already Ex.PW15/B) prepared for admission of one of the officers from Delhi. She did not tell the name of that officer. For preparation of this DD, he telephonically talked to Mr. Vaikundarajan and he directed him to prepare the same. He gave amount of Rs.4,15,000/­ in cash as the amount of Rs.5 Lakhs remained with him as imprest for the purpose of purchasing material for the company. He gave this amount to one of the employees Sh. Sreeneevasan to prepare the DD in favour of VT University, Vellor. This amount was deposited in the account of R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 37 of 264 Sh.Sreeneevasan in the Federal Bank and accordingly, the DD was prepared and after preparation of the said DD, he handed over the same to A­1 Neeraj Khatri nearby their office in Chennai. He also identified A­1 Neeraj Khatri during the course of his statement correctly.

89. He was then shown inter office communication dated 03.07.2012 (already Ex.PW19/C) and on seeing the same, deposed that it was written by him to Sh. S. Vaikundarajan for reimbursement of Rs.4,15,000/­ as the said amount was spent for preparation of DD (already Ex.PW15/B) by him from imprest amount. He stated that till his statement was recorded, he was not aware whether the amount of Rs.4,13,0000/­ was repaid by Neeraj Khatri or not, however, after two year, A­1 Neeraj Khatri returned the amount of Rs.5 Lakhs in cash to Mr. S. Vaikundarajan. He further deposed that the amount of Rs. 5 Lakhs was not handed over by A­1 Neeraj Khatri to S. Vaikundarajan in his presence. He further stated that he did not know whether the amount is paid on demand by company. He knew Sidharath Khatri S/o Neeraj Khatri and had met him alongwith accused Neeraj Khatri. He stated to have met Neeraj Khatri on two/three occasions personally and had spoken with him around 15­20 times on telephone. He first met Neeraj Khatri at the time of handing over DD to him at Chennai. Secondly during the marriage of son of Vaikundarajan and thirdly at their office in Chennai. Around 15 times he had provided car R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 38 of 264 to Neeraj Khatri. He stated that he never contacted Neeraj Khatri for refund of the aforesaid amount for which DD was prepared. He revealed that Smt. Subulakshmi was no more working with the company since she had left the company in the year 2015. He was not aware about the reason of her leaving the company.

90. During cross­examination, he stated that he had told CBI that Smt. Subulakshmi had never informed him that amount of Rs.4,15,0000/­ will be returned by the officer. He stated it correct that Smt. Subulakshmi was working/liasoning in the region of Gujarat and Andhra Pradesh. He was not cross­examined by A­3.

91. PW­26 Sh. Sushil Kumar Srivastava, Scientist­E in Ministry of Environment and Forest and Climate Change deposed that he had been working as Scientist­E in IA­II/III Division. He was shown the proposal dated 15.10.2012 (already Ex.PW6/1) of M/s V.V. Minerals, Chennai for seeking Terms of Reference for environmental clearance of production specific (mineral based) SEZ project over an area of 166.665 hectare in village Thiruvambalapura, Taluk Radhapuram, District Tiruneveli, Tamil Nadu. The proposal was based on form­1 which was a part of Environment Impact Assessment notification, 2006 (already Ex.PW7/DX1). As per form­1, this project was covered under item no. 7(c) of Schedule to the said notification.

92. As per form­1 for the proposal SEZ activities/project was to house mineral processing plant for given capacity, finished products, port R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 39 of 264 activities, thermal power plant and co­generation plant, wind turbine and solar power plant, desalination plant, common effluent treatment plant, buildings and constructions - 2 lakhs sq. Mtrs. He further stated that SEZ comes under physical infrastructure including environmental services and the presently dealt with by the expert appraisal committee (EAC) constituted for appraisal of infrastructure/CRZ related projects in IA­III division. He was shown Minutes of 5th Meeting of the Reconstituted Committee of the EAC for environmental appraisal of mining projects constituted under EIA notification 2006 held on 13.03.2013 to 15.03.2013, which Minutes were exhibited as Ex.PW26/A. Para no. 2.11 of Ex.PW26/A deals with the observation made by the EAC Committee. He was shown Minutes of 7 th Meeting of the Reconstituted Committee of the EAC for environmental appraisal of mining projects constituted under EIA notification 2006. As per Minutes, meeting was held on 15.03.2013 to 17.05.2013, which Minutes he then exhibited as Ex.PW26/B. Para 2.45 of Ex.PW26/B deals with the observation made by EAC Committee.

93. He deposed that presently non­coal mining projects were being dealt in IA­II Division of the Ministry. He deposed that one of the work of IA Division cannot be dealt with another IA Division. "Sometime, the proposal may come in confusion in another section but finally, it has to be sent and appraised by the concerned IA Section only".

94. He stated that at present, there were 8 sectors in IA Division namely, Industry­I, Industry­II, Coal mining, Non­coal Mining, Infrastructure­ R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 40 of 264 I/II/CRZ, Hydro, Thermal Power and Defence projects, having 7 EAC as one EAC for coal mining and thermal power sector and rest others have different committees. He stated that these 8 sectors were dealt in three Divisions. He further detailed that at present IA­I deals with hydro and thermal power, IA­II deals with Industry­I and II, coal mining and non­coal mining and IA­III deals infrastructure­ I/II/CRZ. He was cross­examined by ld. Counsel for A­1, A­2 and A­4, during which, he stated that as per notification Ex.PW7/DX1, mining of minerals is covered under item 1(a) of the schedule to EIA notification 2006, were presently dealt with in IA­II Division and regarding mineral benefication as contained in item no. 2(b) he could not tell which Division deals with the same. As per his knowledge, he stated that item 7(e) and 7(h) were dealt with IA­III Division. He had stated about the aforesaid on the basis of of his experience working in IA Division since July, 2015. He volunteered to have worked with IA­III also for sometime for which reason he had stated above facts, though he could not state any documentary evidence in that regard. He denied suggestion that item 7(e) and 7(h) of the said notification were not being dealt with by IA­III Division. He was put a specific question that if by mistake a proposal in this case was filed in a wrong Division and if it could have been pointed out by the Director or Section Officer and the mistake could have been corrected, to which, he replied that since he joined IA Division in the year 2015 and the procedure adopted for filing proposal is on­line, therefore, he could not reply the above question in positive or negative. Whereafter, he was again put a question R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 41 of 264 specifically that if the proposal consists of activities connected with both IA­II and IA­III Division in that case in which Division the proposal should be filed, to which, he replied that answer to this can be given only if specific case is pointed out, as for example SEZs are to be appraised in IA­III Division whereas any industry to be housed therein is to be appraised depending upon the categorization. There was no cross­ examination of this witness by A­3.

95. PW­27 Sh. T.V. Ravi was posted as Director, SEZ since October, 2015 and knew the procedure for establishment of a SEZ. He detailed that firstly the proposal for setting up of a SEZ is submitted by the proposer/developer to the State Government with the details of land and the business plan. Thereafter, the State Government recommends to the Government of India for approval of the proposal. On the receipt of recommendation from the State Government, the jurisdictional development Commissioner of the Ministry of Commerce will carry out the inspection with respect to the land proposed for establishment of SEZ and submits the recommendations. He detailed that then the proposal is considered in Board of Approval (BOA) meeting for its approval and BOA approves the business plan. After approval from the BOA, a letter of approval is issued to the developer of SEZ. BOA consists of representatives of all Ministries concerned with the industrial development and the representatives involved in deliberations are not below the rank of Joint Secretary, Government of India. Generally BOA consists of 30­40 officers in a meeting.

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96. He was then shown a production­cum­seizure memo dated 02.09.2016. He admitted that against this seizure memo, which was then exhibited as Ex.PW27/A, he handed over the file no. F­ 1/21/2009/SEZ, which contained proposal of M/s V.V. Minerals regarding establishment of SEZ alongwith several documents, which he then exhibited as Ex.PW27/B. He then exhibited letter dated 03.05.2012 as Ex.PW27/C, which was recommendation of State Government to the Director, SEZ, Department of Commerce, Ministry of Commerce and Industry, Government of India, Udyog Bhawan, New Delhi, which he exhibited as Ex.PW27/D. He exhibited formal approval letter dated 05.12.2012 issued to M/s V.V. Minerals after formal approval from BOA, which letter he exhibited as Ex.PW27/E.

97. During cross­examination by ld. Counsel for A­1, A­2 and A­4, he revealed that if proposal is not approved by BOA, the rejection letter will be issued. He admitted that M/s V.V. Minerals came to know about the approval only through letter dated 05.12.2012.

98. PW­28 Sh. N.V. Navaneethakrishnan, retired DSP, CBI was DSP, CBI­AC­II Branch in the year 2016, when the present case was entrusted to him for investigation. It was alleged that A­1 Neeraj Khatri had official dealings with M/s V.V. Minerals and in furtherance of which, he obtained gratification in the form of demand draft amounting to Rs.4.13 lakhs which was remitted towards fee for his son in an Engineering College in Tamil Nadu. He thereafter was transferred and the present case was got marked to Smt. Shobha Dutta, DSP.

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99. He revealed that during his investigation, he had collected various documents through seizure memo and examined and recorded the statements of witnesses. He exhibited FIR dated 01.03.2016 under signatures of Sh. Ajay Kumar, the then SP, CBI, as Ex.PW28/A. He also collected copy of order dated 28.03.2016 and 05.08.2016 of the Court of Sh. Gurdeep Singh, ld. Special Judge, PC Act, which he exhibited as Ex.PW28/B and Ex.PW28/C. He then collected the documents against receipt memo dated 11.04.2016 (already Ex.PW3/A) from Varun Saighal, Advisor (Administration) VIT University, Vellore, Chennai, which were exhibited on record as Ex.PW3/B to Ex.PW3/E. He identified his signatures on receipt. He had then collected the documents through seizure memo dated 03.05.2016 (already Ex.PW15/A) from Sh. Amjith C. John, Senior Manager Legal), Federal bank, ZO, New Delhi, through which, he had collected original DD of amount of Rs.4,13,000/­ in favour of VIT University (already Ex.PW15/B). He identified his signature on seizure memo Ex.PW15/A at point B. He had collected documents through seizure memo dated 12.04.2016 (already Ex.PW17/A) from Indian Bank, VIT Branch, Vellore. The documents were already exhibited as Exs.PW17/B, PW17/C and PW17/D. He had then collected the documents through seizure memo dated 07.04.2016 (already Ex.PW22/A), which was already on record as Exs.PW5/1, PW5/2 and PW5/3 respectively. He then collected the documents through seizure memo dated 06.04.2016 (already Ex.PW2/A), which were already Ex.PW2/B to Ex.PW2/D. R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 44 of 264

100. He had collected the documents through handing over taking over memo dated 29.03.2016 from CBI Insp. Yasir Arafat, which he then exhibited as Ex.PW28/D. The document collected through this memo was already Ex.PW24/A.

101. He stated to have recorded statement of Sh. C.M. Sharma, Sh. S. R. Amin, Sh. Varun Saihgal, Sh. Sreenivasan, Sh. Sakthivel, Sh. Arunachalam, Sh. U. Sridharan, Sh. Amjith C. John, Sr. S.S. Negi, Sh. S. Subramanian and Sh. K.B. Singh truly and correctly and explained to him, which they accepted in his presence.

102. He was cross­examined by ld. Counsel for A­1, A­2 and A­4, wherein, he stated that he remained IO for three and half months after the registration of FIR. He started the investigation in the year 2016. He was specifically asked about pendency of file with Neeraj Khatri when DD was issued, to which, he stated his inability to admit or deny the same. His attention was then drawn to document Ex.PW24/B and he was asked specifically that at the time of collecting aforesaid document Ex.PW24/B, he had received the information that Subbulakshi (A­3) was not working as liaison officer in respect of MoEF, Delhi, to which, he replied that from the letter there is no reference or mention qua Subbulakshmi not dealing with matters relating to company for clearance from MoEF in Delhi. He was unable to recollect of having collected any document, which would show that Subbulakshmi was dealing with the matter to the company for clearance at MoEF at Delhi.

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103. He was then shown statement of PW­2 Shekhar Ranjan Amin and was inquired about the loan in the said statement, to which, he replied that as per conduct rules, public servant involved in the transaction of certain amounts need to intimate the department qua such transactions. He had inquired PW­2 to ascertain whether the receipt of amount of Rs.4,15,000/­ by Neeraj Khatri was intimated to department or not. He had verified the ITR of M/s V.V. Minerals in that regard and found that the amount was shown as donation. He could not recollect to have examined ITR of subsequent year. He denied the suggestion that he deliberately did not verify the ITR of subsequent year since he knew that in subsequent year the loan had been repaid.

104. PW­29 Sh. R. Surendra Purshothaman, retired as Dy. Secretary, Industries Department, Govt. of Tamil Nadu deposed that he had worked as Under Secretary in Industry Department since August, 2010 till 2014, when he was promoted as Dy. Secretary and retired as such from Industry Department, Govt. of Tamil Nadu on 31.07.2017.

105. He detailed that as Under Secretary in Industry Department, his duty was to look­after four sections i.e. Major Industries A Section (MIA), Major Industries E Section (MIE), Major Industries G Section (MIG) and State Industries Promotion Corporation of Tamil Nadu Land Acquisition (SIPCOTLA). He further detailed that in Major Industries 'E' Section (MIE), he dealt with all the files relating to proposals regarding SEZ with the due procedure for recommending them for formal approval by Govt. Of India.

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106. He further detailed that M/s V.V. Minerals through its Managing partner S. Vaikundarajan submitted its application alongwith various enclosures for recommending to get formal approval from Secretary, Ministry of Commerce and Industries, SEZ Section Udyog Bhawan, New Delhi, which was made in the year 2009. He was then shown the application of M/s V.V. Minerals, which he stated to have handed over alongwith enclosure to CBI against production­cum­seizure memo dated 08.11.2016, which then was exhibited as Ex.PW29/A. The application of M/s V.V. Minerals alongwith enclosure was exhibited as Ex.PW29/B, which was signed by S. Vaikundarajan, Managing Partner at point A and was stated to be accompanied with enclosure which were true certified copy certified by him under his signatures at point X and was Ex.PW28/B (Colly).

107. He further stated that Director, Tamil Nadu Industrial Guidance and Export Promotion Bureau was requested to offer specific remarks/recommendation on the above application of M/s V.V. Minerals vide letter dated 07.08.2009 of Industries Department. The Industries Department then sent a letter to M/s V.V. Minerals to furnish the documents mentioned in the said letter, whereafter, M/s V.V. Minerals provided requisited documents and information in compliance. Another letter was sent by Director Tamil Nadu Industrial Guidance and Export Promotion Bureau on 30.12.2009, against which, the office of witness sought clarification regarding land requirement, investment, net worth required and to submit comparative statement with norms enforced. The R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 47 of 264 reply was received on 07.01.2010 addressed to Joint Secretary, Industries Department alongwith detailed report with their recommendation.

108. He was then shown letter dated 26.07.2010, which he identified and was regarding re­validating the investment proposal because application was submitted in July, 2009. The letter dated 26.07.2010 was Ex.PW29/C. The concurrence against Ex.PW29/C was received vide letter dated 10.06.2011 of M/s V.V. Minerals, whereafter, on 24.06.2011, the department of the witness had sent a letter to the Commissioner Geology and Mining, Guindy, Chennai regarding information, which was then exhibited as Ex.PW29/E. He exhibited further communication inter­se department Ex.PW29/F and Ex.PW29/G and revealed that after getting the approval from Hon'ble Minister, a letter dated 03.05.2012 (already Ex.PW27/B) was sent to Director, SEZ, Department of Commerce and Industries, Govt. Of India, Udyog Bhawan, New Delhi under his signatures. He was not subjected to any cross­examination.

109. PW­30 Sh. Chandra Mohan Sharma, Addl. Private Secretary to Minister of Civil Aviation, Govt. of India revealed that he was posted as Section Officer in Ministry of Environment and Forest from 25.06.2009 to 02.11.2015. He was posted in Conservation and Survey Division of Ministry and handled administrative issues of Botanical Survey of India, whereafater, he was posted to Impact Assessment Division in IA­II Section, in which he had handled project proposals relating to coal R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 48 of 264 mining, non­coal mining, industry and thermal power plants submitted to the Ministry for seeking Environment clearance. He stated that for each of the sectors being handled in the division, he used to report to different officers. In respect of non­coal mining, during the relevant period, Dr. Saroj was Director and Sh. Neeraj Khatri and Sh. Om Prakash were Dy. Directors. He was shown file pertaining to M/s V.V. Minerals, whereafter, he stated that project proposal was received in Central Registry Section of Ministry on 15.10.2012, which was received in his Section from the office of Neeraj Khatri, Dy. Director vide diary no. 283 dated 31.10.2012. It was remarked by Neeraj Khatri, Dy. Director, IA­II, Mining "to be considered in next EAC meeting (November) urgent" and the same was marked by him to the dealing hand on the same date i.e. 15.10.2012. This receipt was diarized in the record of the section of the witness on 05.11.2012 and marked by him to the dealing hand on 09.11.2012. He identified handwriting of Neeraj Khatri encircled at point A and the signatures of Neeraj Khatri at point X on document already Ex.PW6/A. He had seen Neeraj Khatri signing and writing since he worked under him. He further detailed that project proposal contained requisite documents i.e. form­1 alongwith pre­feasibility report and also stated that since the project related to mining, this was to be dealt in IA­II Division.

110. In his further deposition, he revealed that the endorsements made R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 49 of 264 encircled in red at point A on Ex.PW6/1 are usually not made. These endorsements are made in case papers which are directly received in the Section from Central Registry. He detailed that the Coastal Regulation Zone (CRZ) clearance relating to M/s V.V. Minerals was previously dealt with in IA­III. He further deposed that agenda for consideration by EAC was finalized at the level of Director of the concerned sector being Member Secretary and not by any other officer.

111. It was stated that letter Ex.PW6/1 came to the Section of the witness vide diary dated 31.10.2012, which he entered in their diary on 05.11.2012 as per entry at point X­1, whereafter, he marked the papers to dealing hand for mining sector under his signatures at point X­2 on the said letter dated 09.11.2012.

112. It was stated that the original project documents submitted by proponent in CR Section were not available in the file, which contained the copy of project proponent as the project proposal submitted by proponent in CR Section might have been sent to IA­ III Section since the subject mentioned in the proposal pertains to SEZ projects and these projects are dealt in IA­III Section. He was then shown another letter dated 22.07.2009 pertaining to file no.F.1/21/2009­SEZ, CF 27277 Ministry of Commerce and Industry in respect of setting up of a SEZ for mineral and non­mineral based product submitted by M/s V.V. Minerals. After seeing the said R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 50 of 264 letter dated 22.07.2009, it was detailed by the witness that the project was dealt in IA ­III Section since it was SEZ project.

113. He detailed the procedure followed in IA­II Section for handling the project for seeking environmental clearance by stating that any document to be submitted to the Ministry was received in the CR Section and staff of CR Section used to deliver the papers to concerned section. The Section used to open a new file on the document if it as a new proposal or used to deal it on existing file if papers related to any ongoing project under examination.

114. He revealed that environmental clearance process consisted of two stages (i) the grant of terms of reference for EIA study and (ii) consideration of EIA/EMP report alongwith public hearing report by the EAC. He stated that agenda for consideration of the proposals by EAC used to be prepared by Member Secretary i.e. Director of the concerned section on monthly basis. Before preparation of agenda, a list of all pending proposals used to be sent by the section to the Member Secretary for drafting the agenda and after completion of the procedure, the files were returned to the section.

115. He was cross­examined by the ld. Counsel for A­1, A­2 and A­4, wherein, he affirmed it to be correct that noting mentioned on Ex.PW6/1 was received by him one or two days after it was diarized on 31.10.2012, whereafter, he marked the file on 09.11.2012 to the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 51 of 264 dealing hand. The file was put up before EAC meeting on 13th to 15th March, 2013.

116. In response to specific question that as per Central Secretarial Manual even if the file comes to higher officer (Dy. Director) he has the powers to do endorsement but it will be put back to the witness for verification, the witness affirmed it as correct but volunteered "that in addition to procedure prescribed in Central Secretarial Manual some practices were being followed in IA Section in variance to the said Manual due to reason as the issues being handled in IA division were not normal secretarial correspondences but those were scientific projects and in addition to maintain transparency in the entire process, it was established procedure that papers would be submitted to CR Section only and therefrom would be delivered to concerned section".

117. He was then put a specific question that after the proposal being assigned to him by Dy. Director, he was bound to examine it, to which, he replied that file was opened in the year 2012 itself though it was placed in EAC subsequently in the month of March, 2013, which might be because of the reason that the file was assigned to the project after receipt of proposal but physical submission of file took place in the month of March, 2013. He stated that since all the proposals were scientific proposals, the examination of them was done by his higher ups who were scientists and by the EAC which consisted of experts from different sectors. At his level, he was not supposed to examine the case since section used to provide secretarial assistance to R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 52 of 264 the Member Secretary. The witness affirmed it as correct that his work was to handle the project related to various sectors namely industry, non­coal mining, coal mining, thermal power plant, nuclear power plant and policy matters he was asked specific query by the court regarding the proposal in question being exclusively related to the aforesaid and required to be dealt with exclusively by IA­II or not, to which, the witness responded that proposal of M/s V.V. Minerals was for EC of product specific mineral based SEZ project. During the relevant period, SEZ projects were dealt in IA­III section, however, papers were marked by Dy. Director Mining A­1 Neeraj Khatri to him for consideration of project in next EAC meeting, and he accordingly marked these papers to the dealing hand of mining sector and a new file was also opened for mining section. He further revealed that during the relevant period, as per office memorandum issued by the policy section for handling such composite cases the matter was used to be handled in IA­III section only as basically this was a SEZ project. He stated that he did not point out the above matters are dealt in IA­III when the file came to him due to the reason that there was clear direction of Dy. Director mining on the document to consider this case which meant that these papers were to be dealt in mining section. He further detailed that when the proposal was placed in EAC meeting for consideration, it was pointed out by the Committee that it was not clear from the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 53 of 264 presentation for what the project proponent was proposing as the common and PFR submitted was not specific for mining activity. Though, he stated that EAC Minutes Ex.PW26/A did not mention that matter needs to be sent to IA­III. He denied that the matter could have been dealt by both IA­II and IA­III Section and not exclusively in IA­III. He was not cross­examined by A­3.

118. PW­31 Insp. Yasir Arafat deposed that he was investigating the case RC No.6(A)/2013 against accused Neeraj Khatri, which was a disproportionate assets case. During the investigation of the said case, he wrote letter dated 19.12.2014 (already Ex.PW20/G) to Branch Head, Federal Bank, Mount Road Branch, Chennai for verification of deposit voucher dated 03.07.2012 for Rs.4,15,000/­ in account No.11000100074086 in the name of Sreenivasan P, in response to which a letter dated 22.12.2014 (already Ex.PW20/E) was received, whereby, the bank had sent the voucher dated 03.07.2012 for Rs.4,15,000/­. During the investigation of DA case, when he inquired Sh. Sreenivasan P. about the reason for him depositing the said amount of Rs.4,15,000/­ in his account for getting the DD in favour of VIT University, it was revealed to him that he had deposited the said amount in his account as per directions of his Manager Sh. S. Raja as the bank had refused to issue DD against cash. He then examined Sh. S. Raja in the said DA case, who revealed that on verbal directions of executive partner of M/s V.V. Minerals Sh. S. Vaikundarajan, he had given Rs.4,15,000/­ which he had given in cash on behalf of company for establishment and R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 54 of 264 contingent expenditures to Sh. Sreenivasan P. for getting the DD in favour of VIT University. Sh. S. Raja revealed to him that Ms. Subbulakshmi, who was liaison officer/consultant of M/s V.V. Minerals had informed him on 03.07.2012 that an officer of Ministry of Environment and Forest was in Chennai and he needed a DD of Rs.4,13,000/­ in favour of VIT University. Thereafter, he sought approval of S. Vaikundarajan. He also submitted a voucher for said expenditure to the account office of M/s V.V. Minerals, whereafter, he issued a letter/notice to M/s V.V. Minerals for providing vouchers submitted by Sh.S. Raja, which he had received vide letter dated 07.05.2015 (already Ex.PW19/A. The vouchers (already Ex.PW19/B, Ex.PW19/C) and copy of draft (already Ex.PW19/D) and collected documents from S. Vaikundarajan against production­cum­seizure memo dated 24.02.2015 bearing his signatures at point A. The production­cum­seizure memo he then exhibited as Ex.PW31/A and identified the signature of S. Vaikundarajn on the same.

119. He had collected the ledger account for donation of M/s V.V. Minerals for the year 2012­13 (already Ex.PW24/A). He had seen the true copy of ITR for the assessment year 2013­14 pertaining to M/s V.V. Minerals attested by S. Vaikundarajan, which he then exhibited as Ex.PW31/B. He also exhibited letter dated 22.07.2009 of M/s V.V. Minerals alongwith annexures as Ex.PW31/C. He had handed over the documents collected above on directions of Sh. Gurdeep Singh, Ld. Special Judge, CBI to Sh. N.V. Naveetha Krishnan, IO in this case.

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120. During cross­examination, he could not detail the exact date when he examined Sh. Sreenivasan P and stated that it was somewhere in the year 2015. He gave similar reply in respect of Sh. S. Raja and stated that he recorded the statement of this witness under Section 161 Cr.P.C., though he had not handed over the copy of the statement. He then volunteered that he had handed over the documents as per the directions of Special Judge, CBI. He stated that statement might be in DA case file. Rest of the suggestions were denied. No cross­examination was conducted by A­3.

121. PW­32 Sh. S.P. Rama Rao was posted as Inspector, CBI, SCB, Chennai in the year 2016 and on directions of the IO Ms. Shobha Dutta, DSP, he had collected the documents from Sh. R. Surendra Purshotam, Dy. Secretary, Govt. Of Tamil Nadu. He exhibited the seizure memo Dated 08.11.2016 (already Ex.PW29/A), through which, he had seized documents (already Exs.PW29/B, PW29/C, PW29/D, PW29/E and PW29/F). He had examined Sh. R. Surendra Purshotam on 08.11.2016 and recorded his statement under Section 161 Cr.P.C. He was not cross­ examined.

122. PW­33 Sh. Amardeep Raju was transferred from National River conversation Directorate as Scientist­C to IA­III Division of MoEF & CC, which deals in infrastructure and coastal zone management projects, whereafter, in 2014, he was posted in IA­II, which deals in industrial projects. He was shown the file pertaining to M/s V.V. Minerals. After going through which, he stated that the file should have been R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 56 of 264 dealt in IA­III Division because it has component of SEZ and also involve the coastal zone regulations and mining of rare minerals. He detailed the procedure of environmental clearance by MoEF&CC adopted by the Ministry in the year 2012 and deposed on the similar lines as stated by the earlier witnesses.

123. He was also shown the Minutes of 123 rd Meeting of EAC held on 15th and 16th April, 2013, which was attended by him as Scientist­C of MoEF, which was then exhibited as Ex.PW33/A. He was also shown the file pertaining to Terms of Reference (ToR) for product specific (mineral based) SEZ project over an area of 166.66.5 hectare in village Thiruvamblampuram, Taluk Radhapuram, District Tirunelveli, Tamil Nadu (already Ex.PW10/4), with which, he had dealt with as the file was put up before him by Section Officer, IA­ III. He made a note dated 16.11.2012 on 1/N of the noting portion of the file mark the portion X to put up the proposal in EAC meeting. He marked the file to Director Sh. Lalit Kapur. The file was again put up before him on 26.02.2013 from Section Officer, IA­III, whereupon, he made a note that the proposal may be considered in the next EAC meeting in February, 2013. he had then shown letter dated 15.10.2012 (already Ex.PW6/1), on which, the witness stated that the letter does not bear CR number, however, there is stamp of CR Section, which bears date 15.10.2012. He could not detail about stamp as to where it was affixed and by whose office.

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124. During cross­examination by ld. Counsels for A­1, A­2 and A­4, in response to a specific question about the work distribution between IA­ II and IA­III, the witness stated that in IA­III, infrastructure and CRZ projects are dealt whereas in IA­II, industrial projects are dealt with. The attention of the witness was then drawn to page 2 of correspondence portion i.e. application for prior environmental clearance Ex.PW10/4 and he was asked whether it is correct that the Thermal Power Plant and Co­generation Plant, wind turbine, solar power plant 600 MW and De­ salination plant of 100 MLT were covered under industrial projects, to which, the witness replied that these are industrial projects proposed in the SEZ projects for which the proponent have applied for environmental clearance and that, SEZ projects are dealt with in IA­III irrespective of industrial project proposed by the proponent in his proposal. He then deposed that the basis for the above assertion is EIA notification 2006 but he was not having the copy of the said notification. The witness was then shown the copy of the notification dated 14.09.2006 (already Ex.PW7/DX­1) and suggested that the said notification did not speak so, on which, witness cited the scheduled of EIA notification 2006, page no. 16 heading/column Project or Activity at Sl. No. 7C, on which, the details were provided, which incorporates industrial estate or park/complex/areas, Export Processing Zones (EPZs), Special Economic Zones (SEZs), biotech parks, leather complexes. He denied that mining of minerals and thermal power plants were exclusively required to be dealt with IA­II and not with R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 58 of 264 IA­III, even if the same were part of SEZ. His attention was then drawn to Ex.PW26/A and he was asked that as per para 2.11 even the committee was not sure whether the matter should be initiated in IA­II or IA­III, to which, he replied that he could not comment on this as it was not dealt with their division i.e. IA­III. He denied that he knew the matter could have been initiated in both the divisions IA­II and IA­III and not exclusively in IA­III. He further denied that due to pressure from CBI, he has stated that the matter could be dealt with in IA­III. His cross­examination was not conducted on behalf of A­3.

125. PW34 Smt. Shobha Dutta detailed that she was posted as DSP, CBI, AC­II Branch, New Delhi in the year 2016. The present case was entrusted to her in July, 2016 as it was transferred from earlier IO/DSP Sh. Navneet Krishnan. She scrutinized the already recorded statements and the documents collected till then and also recorded the statements of some additional witnesses and collected more documents through various production­cum­seizure memos.

126. During the course of investigation, she had obtained certified copy of the charge­sheet against accused Neeraj Khatri in RC 6(A)/2013, which she exhibited as Ex.PW34/C. She also obtained the certified copy of order on charge dated 10.02.2014 passed by Sh. V.K. Gupta, ld. Special Judge, CBI, which was then exhibited as Ex.PW34/B and the charge framed under the relevant provisions on 10.02.2014, copy of which order she exhibited as Ex.PW34/C. She had received four annexures from Vigilance Department of MoEF& CC against letter R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 59 of 264 dated 10.08.2016 (already Ex.PW2/E) regarding having not received any intimation about A­1 receiving payment of Rs.4,15,000/­ as loan. The annexures were already Exs.PW2/F, Ex.PW2/T, Ex.PW10/1 and Ex.PW10/2. She had collected file Ex.PW10/A through letter dated 07.09.2016 (already Ex.PW10/3) pertaining to IA­III Section of MoEF& CC, where the project proposal of proponent was dealt with Sh. Amardeep Raju, Dy. Director. She also revealed about having collected the documents Ex.PW27/A, Ex.PW27/B and Ex.PW27/D from the Industries Department of State Govt. Of Tamil Nadu regarding application for setting up SEZs and its recommendations. She also revealed about having collected documents (already Ex.PW11/1) vide production­cum­seizure memo dated 29.08.2016 (already Ex.PW11/2) bearing his signature at point B. She also revealed for obtaining documents (already Ex.PW7/2) mentioned in production­cum­seizure memo dated 29.08.2016 (already Ex.PW7/1).

127. She then deposed that after having scrutinized the documents already Exs.PW24/A, PW31/B and PW31/C, she came to conclusion that all the five previous approvals/clearance for the year 2003 to 2006 of M/s V.V. Minerals were dealt in IA­III Section of the Division of the said Ministry.

128. She then also deposed for having scrutinized the documents (already Exs.PW19/B to PW19/F) and came to the conclusion that vide inter­office communication Ex.PW19/C Sh. S. Raja, Manager, M/s R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 60 of 264 V.V. Minerals sent communication to S. Vaikundarajan mentioning that as per the instruction of Ms. Subbulakshmi, he had taken one DD in the name of VIT University payable at Vellore for Rs.4,13,000/0 for one officer of MoEF of Delhi and accordingly, asked for the reimbursement of Rs.4,15,000/­. She then revealed that on the said letter at point X S. Vaikundarajan had written in Tamil as "give the money and make entry in donation account". On the basis of direction of S. Vaikundarajan the inter­office communication, the cash payment voucher Ex.PW19/B was prepared and entry regarding this payment was made in donation ledger account of M/s V.V. Minerals Ex.PW19/F. Further, vide pay­in slip (already Ex.PW18/A) Sh.P. Sreenivasan had deposited amount of Rs.4,15,000/­ in cash on 03.07.2012 in is account in Federal Bank, Anna Salai Branch.

129. She then deposed for having collected the documents (already Ex.PW9/2 to Ex.PW9/4) vide production­cum­seizure memo dated 26.10.2016 (already Ex.PW9/1) and identified her signature at point B. She revealed that the said documents were pertaining to travel of A­1 Neeraj Khatri and Sidharath Khatri from Delhi to Chennai on 04.07.2012 and Ms. Subbulakshmi's travels from Delhi to Surat on 04.07.2012 and Sh. Vaikundarajan's travel from Delhi to Chennai on 15.10.2012.

130. She then revealed that she had collected documents through Insp. CBI Sh. S.S. Yadav vide production­cum­seizure memo dated R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 61 of 264 13.10.2016 (already Ex.PW11/3) and identified her signatures at point B. These documents were pertaining to the ledger account of Raja Travels and Tours of Subbulakshmi and also passenger e­tickets of S. Vaikundarajan, Subbulakshmi and Neeraj Khatri and the payment made towards those tickets.

131. She also narrated that she had collected the true copy of certificate pertaining to firm registration of M/s V.V. Minerals (already Ex.PW13/B) through SP, AC Unit V, vide letter dated 17.10.2016 of District Registrar (Admn.), Palayamkotti, Tamil Nadu (already Ex.PW13/A).

132. She then narrated for having collected the copy of the file dealt with by State Govt. of Tamil Nadu pertaining to the application of M/s V.V. Minerals for setting up SEZ since 2009 vide production­cum­ seizure memo dated 08.11.2016 (already Ex.PW29/A) through Insp. CBI S.P. Rama Rao, SCB, Chennai.

133. She then stated that after conclusion of the investigation, she found that allegations were substantiated, wherein, Neeraj Khatri through Subbulakshmi demanded and accepted amount of Rs.4,13,000/­ for DD payable at VIT University, Vellor and the payment was made on the directions of S. Vaikundarajan shown as donation in account of M/s V.V. Minerals. Neeraj Khatri showed undue favour by endorsing as "put up in the next EAC meeting urgent November" on the acknowledged copy dated 15.10.2012 of the project proposal. She R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 62 of 264 revealed that during investigation, it was revealed further that there was already a case in the same branch (AC­II bearing RC no. 1(A)/2013) against Neeraj Khatri for demanding and accepting bribe and in the same, charge­sheet was filed and charges were framed against Neeraj Khatri. During investigation, it also came up that there was a case in Chennai against Vaikundarajan bearing RC No. 55(A)/2012 pertaining to illegal cash payment of Rs.7.5 crores through M/s V.V. Minerals in the account of some public servant and accordingly, the charge­sheet was filed on 29.12.2016. The process of obtaining sanction was processed and it was received in the month of March, 2017, which was Ex.PW1/A.

134. During cross­examination on behalf of A­1, she was put a specific question of her being able to show any oral evidence or document to suggest that the file of M/s V.V. Minerals was pending consideration before Neeraj Khatri at the time of handing over the DD of Rs.4,13,000/­, to which, she replied that there was nothing pending at that time, but volunteered that the process of setting up SEZ started long back, which generally takes up approval and permission from various Ministries and State Government of Tamil Nadu and the company had already written regarding grant of formal approval for setting up of SEZ to Ministry of Commerce, Government of India, which letter was also received by M/s V.V. Minerals, which showed that M/s V.V. Minerals was aware that now, they have to approach various Ministries in the Central Government including MoEF&CC. Accordingly, M/s V.V. R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 63 of 264 Minerals represented through Subbulakshmi and Vaikundarajan started approaching MoEF&CC, wherein, Subbulakshmi came in contact with Neeraj Khatri since they knew that they will require help of Neeraj Khatri in getting various clearance of the said Ministry for setting up their SEZ. She also stated that prior to this also, M/s V.V. Minerals had approached five times to the Ministry for getting clearance and they were very well aware how the work in Ministry is done. She further stated that Subbulaksmi started contacting Neeraj Khatri perhaps in May, June and July, 2012, though, she admitted that this fact was not mentioned in her charge­sheet. The suggestion that there was no evidence either oral or documentary to say that Subbulakshmi had ever contacted Neeraj Khatri was denied by her, she volunteered that there was an inter­office communication dated 03.07.2012 (already Ex.PW19/C), which was prepared in the normal course of business wherein Sh. Raja, Manager of M/s V.V. Minerals had written addressing it to S. Vaikundarajan that "as per instructions of Ms. Subbulakshmi, I have taken one DD in the name of VIT University, payable at Vellor for Rs.4,13,000/­ for one MOEF, Delhi Officer". She stated that on the same communication letter Sh. Vaikundarajan had given instruction in Tamil at point X and also there was statement of S. Raja dated 27.04.2016 and 18.08.2016. She stated that Subbulakshmi was Liasoning person, who was deputed for any sort of environmental clearance or other clearance of the Ministry and was one who was initially approaching MoEF&CC. The suggestion that Ms. Subbulakshmi never dealt with clearance of proposals of M/s V.V. R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 64 of 264 Minerals was denied. She volunteered that as per the statement recorded of Sreenivasan, S. Arunachalam and Ms. K. Chitra, it was shown that she has been dealing with the clearance of proposals. The suggestion that she had recorded the statement of witnesses on her own was denied. She denied the suggestion that air ticket was purchased by A­1 Neeraj Khatri from his own money. She further denied the suggestion that PW11 Mr. Balasubramanium had told her about the payment having been made by Neeeraj Khatri.

135. In response to the question of her having any evidence oral or documentary to show about the demand of Rs.4,13,000/­ being made as bribe by Neeraj Khatri through Ms. Subbulakshmi, she replied that the documents were prepared in normal course of business by M/s V.V. Minerals and there inter­office communication, cash payment voucher, ledger entries and the DD itself as well as the statement of witnesses shows that the amount of Rs.4,13,000/­ was accepted by A­1 Neeraj Khatri in the form of DD. It was denied that there was no evidence to show that demand of Rs.4,13,000/­ as bribe was made by A­1 Neeraj Khatri through Ms. Subbulakshmi.

136. It was further denied by IO that the amount of Rs.4,13,000/­ was received as loan and was returned in the year 2015 as she stated that during investigation nothing has come on record that the said amount was loan amount. Rather, it has come on record as donation, which means that the money is not returnable. She denied that she had knowledge of amount of Rs.4,13,000/­ having been received as loan, R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 65 of 264 which was returned in the Assessment Year 2014­15 and therefore, she refused to accept the ITR of the same year. She was asked specifically about the proposals to be dealt in IA­II and IA­III, to which, she replied that based on Ex.PW7/2, the statement of witnesses of MoEF&CC, it is mentioned that what proposals are dealt in IA­II and IA­III Sections. The witness denied that proposal of M/s V.V. Minerals dealing with port activities, thermal power plant, wind turbine and solar power plant etc. could be deal with by IA­II Section also as it was stated that in view of statement of Sh. Amardeep Raju of IA­III, who has dealt with the same proposal of M/s V.V. Minerals and also statements of other officers, it has come on record that the proposal was to be dealt with in IA­III division and hence, it was marked by Central Registry to IA­III.

137. She was then put a specific question that since the proposal was dealt with by Expert Appraisal Committee (EAC) in the month of march, 2013, therefore, though the remarks was put by Neeraj Khatri "put up in the month of November (urgent)" no urgency was shown by Neeraj Khatri while dealing with the matter, to which, she replied that Neeraj Khatri was not supposed to deal with the proposal in IA­II. Moreover, the proposal which was handed over by S.Vaikundarajan was acknowledged copy received by him through Central Registry, which was incomplete to the extent that signatures of S.Vaikundarajan was not on the required place and scrutiny of document was not done and no file number was mentioned. Neeraj Khatri handled the proposal which was undue favour to M/s V.V. Minerals. She denied that there was nothing to R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 66 of 264 say on record that Neeraj Khatri had not shown any urgency or has not shown any undue favour. Contrary suggestion pertaining to process to obtain the sanction was denied. It was denied that CBI had induced the department to obtain sanction. She denied that she had not done the investigation properly.

138. In her further cross­examination by A­2 and A­4, she admitted that during the course of investigation, she found that M/s V.V. Minerals vide letter dated 15.10.2012 submitted from­1 alongwith relevant documents to MoEF&CC. She was put a specific question of having recorded statement of any witness, wherein, the witness had stated about Neeraj Khatri demanding bribe from M/s V.V. Minerals or from S. Vaikundarajan or from any other person on behalf of M/s V.V. Minerals either during September, 2012 to December, 2012, to which, IO replied that it has come on record that M/s V.V. Minerals was conducting/processing one season data (which comprises of minimum 3 to 4 months). Hence, after acceptance of amount/DD of Rs.4,13,000/­ from M/s V.V. Minerals represented by S. Vaikundarajan, no statement of any witness was recorded, who could have stated about the demand/acceptance during September, 2012 to December, 2012. The suggestion was put that she had made presumptions and surmises, which was denied. It was denied that charge­sheet was filed without any evidence showing any demand or acceptance of money or tender of money by anybody to anyone. She also denied that the correct facts relating to documents of M/s V.V. Minerals were not filed before the court.

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139. In her cross­examination by ld. Counsel for A­3 about employment of Ms. Subbulakshmi on contract basis for the period of 2011 ­2013, she stated that as per statements of employees of M/s V.V. Minerals, Subbulakshmi was appointed by M/s V.V. Minerals on contract basis as has come in document Ex.PW24/B. It was denied that there was no material to the aforesaid extent.

140. Statements of accused under Sections 313 Cr.P.C. is recorded, wherein the entire evidence was put to the accused persons. S. Vaikundarajan for himself and for A­4 led DE. However, no defence evidence was led on behalf of A­1 Neeraj Khatri and A­3 Subbulakshmi and their evidence was closed vide order dated 25.10.2019.

141. A­2 S. Vaikundarajan, who appeared in his defence and for A­4, after his application u/s 315 Cr.P.C. was allowed, stated that he is Managing Partner in M/s V.V. Minerals, which is a partnership firm established at Keeraikaranthattu, Tirunelveli District, Tamil Nadu having its branch office at Chennai. He narrated that he has two Engineering Colleges and he normally makes donation to students of engineering and provide due declaration of such donation in his ITRs.

142. He further stated that in the present case on 24.02.2015 Insp. Yasir Arafat seized from him document pertaining to ledger account "donation", ITR of M/s V.V. Minerals in the form of Ex.PW31/A to Ex.PW31/C, whereas FIR in this case was registered on 01.03.2016.

143. He revealed that he knew A­1 Neeraj Khatri since his brother R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 68 of 264 was a friend. He had extended a loan of Rs.4,15,000/­ to Neeraj Khatri by getting a bank draft no. 557537 dated 03.07.2012 in favour of VIT University Vellore, Tamil Nadu, which was issued by Federal Bank, Branch Mount Road, Chennai and was having a face value of Rs.4,13,000/­ and remaining were other charges.

144. He stated that the accused Neeraj Khatri never demanded any money nor he paid any money to him. The amount of Rs.4,15,000/­ was loan, which was duly entered by him in accounts books of M/s V.V. Minerals, which was subject to scrutiny of Income Tax Department. He stated that FIR in the present case was registered on 01.03.2016, while on 28.11.2014, he had filed his income tax return for the Assessment Year 2014­15 pertaining to return of such loan by Mr. Neeraj Khatri vide Ex.PW5/1 to Ex.PW5/5. He claimed that the said loan was reflected in respective account books, however, due to inadvertence, it was mentioned in the ledger account relating to donations. However, subsequently, during the course of ITR assessment proceedings, such error came to notice and due corrections were made by reflecting the said amount in income and thereafter, due deposit of the tax was made, which amount was returned by Neeraj Khatri with interest on 01.10.2013 by making payment of Rs.5 lakhs.

145. He exhibited the documents consisting of auditors certificate dated R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 69 of 264 01.09.2017 alongwith ITR for the period 2012­13 (assessment year 2013­14) and 2013­14 (assessment year 2014­15). Certified ledger account reflecting that initially the loan amount was entered into the accounts books in the ledger account relating to donations were stated to be on record which he then exhibited as Ex.DW1/A (8 pages ­colly). He also exhibited the income tax scrutiny assessment notice dated 20.07.2016 and the order passed on it dated 27.12.2016 and the demand of Additional Income Tax amounting to Rs.9,24,040/­ pertaining to assessment of M/s V.V. Minerals as Ex. DW1/B (running into 8 pages­ colly).

146. He stated that Ms. Subbulakshmi was engaged on contract basis between 2011 to 2013. He revealed that she was looking after the work in Gujarat and Andhra Pradesh and admitted the correctness of documents Ex.PW24/B provided by him. He stated that he had not paid for air ticket of A­1 Neeraj Khatri or for his son Sidharath Khatri for travel from New Delhi to Chennai on 04.07.2012 or back from Chennai to Delhi on 05.07.2012.

147. In his cross­examination by the ld. Sr. PP for CBI, he denied the suggestion that he had paid the amount of Rs.4,13,000/­ as bribe to Neeraj Khatri for seeking favour for the firm M/s V.V. Minerals for doing favour for setting up SEZ. He denied that amount of bribe was paid to Neeraj Khatri through Ms. Subbulakshmi. He denied that he has prepared false documents showing bribe amount as loan/donation. He further denied that he had offered and paid amount ofRs.4,13,000/­ and R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 70 of 264 it was loan. He denied that manipulation was made by him in documents including ITRs, which he exhibited on record and had also paid for air travel for Neeraj Khatri and his son Sidharath Khatri for visit from Delhi to Chennai and Chennai to Delhi on 04.07.2012 and 05.07.2012 respectively. After his statement, DE was closed.

148. Statement of accused Neeraj Khatri (A­1) under Section 313 Cr.P.C. was separately recorded on 17.10.2019. He admitted as matter of record about his posting as Dy. Director with MoEF&CC. He further admitted transfer order Ex.PW2/B as matter of record. He further admitted Ex.PW2/D and Ex.PW2/E regarding communication to DSP, CBI of his department having received no intimation regarding loan of Rs.4,15,000/­ taken by him during the period 2012­13. He further admitted his official record pertaining to his biodata in the service book, annual increment sheets etc. against Ex.PW2/G to Ex.PW2/O.

149. He further admitted Ex.PW3/B as matter of record, the letter of Mr. Varun Saigal, whereby, four documents were provided against receipt memo dated 11.04.2016 and in the latter Ex.PW3/B issued by Registrar of VIT University Dr. Satya Narayan addressed to CBI. He further admitted as correct Ex.PW3/B, copy of receipt of VIT University in the name of Sidharath Khatri for Rs.4,13,000/­ on Ex.PW3/C, provisional admission letter dated 04.07.2012 Ex.PW3/D regarding admission of Sidharath Khatri in VIT University issued by admission officer and bank details Ex.PW3/E of VIT University.

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150. He further admitted it as matter of record that letter dated 15.10.2012 (Ex.PW6/1) on which his handwriting was identified by PW6 Sudhir Kumar, he stated there was nothing wrong with the said letter which can be confirmed from the note file.

151. He further admitted it as matter of record the statement of PW8 Praveen about visit of A­2 to MoEF&CC and letter Ex.PW8/1 dated 15.10.2012 submitted by S. Vaikundarajan, MD, V.V. Minerals, on which a note was written by PW8 Praveen at point A "letter is sent to IA­III 2039/CR/BH dated 08.11.2012" and that the above mentioned letter was marked by Praveen in IA­III division as the subject matter on the covering letter pertained to SEZ project.

152. He further admitted it as correct the portion of statement of PW9 Vijay Roy, wherein, he disclosed being Senior Manager in Spicejet Ltd., Gurgaon and having provided traveling information against Ex.PW9/1 of him (Neeraj Khatri) and that, Sidharath Khatri and Ms. Subbulakshmi and S. Vaikundarajan Ex.PW9/2 to Ex.PW9/4 to Dy. SP, CBI Smt. Shobha Dutta. He further admitted it as matter of record that against PNR No.WFQ7CE flight tickers were booked in his (Neeraj Khatri) name and that of his son Sidharath Khatri as well as Subbulakshmi from Delhi to Chennai on 03.07.2012 for traveling date of 04.07.2012 and the tickets were booked by Sub­agent Raja Travel and Tours, Tuticorin and that Subbulakshmi canceled her ticket from Delhi to Chennai dated 04.07.2012.

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153. He further admitted as correct that against the afore­ mentioned PNR, he (Neeraj Khatri) and Sidharath Khatri boarded the flight on 04.07.2012 at 6.30 AM from Delhi to Chennai.

154. He further admitted at as matter of record that as per statement made by PW10 Sh. Ashok Kumar, Section Officer, MoEF&CC, the record of loan of Rs.4,15,000/­ was not available in the Vigilance Department pertaining to loan being received by him (Neeraj Khatri), the then Dy. Director, in the year 2012­13. It was also admitted as matter of record that no record of officials tickets having been issued by Protocol Division for him, were available during the period 2012, 2013 and 2014. He further admitted as matter of record that as per Ex.PW10/2 pertaining to cash division, no loan of Rs.4,15,000/­ was either pending or repayment was done by him during the period 2012 and 2013. He admitted it as matter of record that no intimation of Rs.4,15,000/­ was given by him to the department.

155. He admitted as matter of record the portion of statement of PW10 Sh. Ashok Kumar that letter dated 07.09.2016 Ex.PW10/3 was submitted to CBI through which letter, file bearing no. 21­72/2012­IA­ III Ex.PW10/4 (Colly) was handed over after going through the said file. He deposed that file was dealt by IA­III Section, MoEF&CC and added that since the project contained number of activities, out of which some activities were covered under IA­II and some activities in IA­III, the project proponent had submitted two copies of proposals, one to IA­ R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 73 of 264 II and one to IA­III, the second page of proposal established activities covered under IA­II as well as IA­III, which was in accordance with law.

156. He further admitted as matter of record Ex.PW11/3 and Ex.PW11/4 as well as certificate under Section 65 of Indian Evidence Act Ex.PW11/5 tendered by PW11 in capacity of Reservation Manager of M/s Raja Travel and Tours.

157. He admitted as matter of record portion of statement of PW12 Sh.Jagdish Kumar Chaturvedi, UDC, CR Section, MOEF&CC that letter dated 15.10.2012 (Ex.PW6/1) was written by S. Vaikundarajan to Secretary, MoEF&CC and added that the project proponent submitted two copies of proposals, one to IA­III and one to IA­II.

158. He further admitted as matter of record portion of statement of PW12 Sh. Jagdish Kumar Chaturvedi that Ex.PW6/1 is acknowledgment of letter of M/s V.V. Minerals submitted personally at the office of MoEF&CC as the office used to put stamp of CR Section only when the parties submit the letter in person, otherwise, there would have been dak number alongwith date of CR Section, which pertains to IA­II Section.

159. He admitted as matter of record the portion of statement of PW14 Dr. Saroj that she was posted as Director in IA Division (non­coal sector) and that, the duty of the Dy. Director, IA Division was to assist R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 74 of 264 in assessing the application regarding the projects, to check whether all the requisite reports were submitted by the project proponent and that, Ex.PW6/1 dated 15.10.2012 was the file bearing No. J 11015/435/2012 IA­II (M) contains the noting in the handwriting of him (Neeraj Khatri) as Dy. Director.

160. He admitted as matter of record that as per statement of PW14 Dr. Saroj, she had never directed him (Neeraj Khatri), the then Dy. Director for placing proposal before EAC in any meeting after her joining as a Director since 2012 and the proposal in question was marked to Section Officer on 15.10.2012, whereas diary number shows that it was sent to Section Officer on 31.10.2012 and that, form­I is the application of Terms of Reference and pre­feasibility report is part of the said application and added that since according to the statement of Dr. Saroj, the application was only Terms of Reference and not for environmental clearance, there was no wrong and moreover, no urgency was shown for placing the file in EAC meeting, which was placed in March, 2013.

161. He partly admitted the portion of statement of PW25 Sh. S. Raja, who was working as Manager in M/s V.V. Minerals since 1998 that on the instructions from M/s Subbulakshmi, Liasoning Officer, he got prepared the DD Ex.PW15/B for admission of one of officers from Delhi for which he handed over the imprest money to one of his employees after taking telephonic instructions from co­accused S. R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 75 of 264 Vaikundarajan, MD, M/s V.V. Minerals, which DD was handed over to him (Neeraj Khatri) nearby office of the witness in Chennai by saying that the DD was received by him from Sh. S. Raja nearby his office at Chennai, though he claimed it to be a short term loan repaid in the year 2013.

162. He admitted the portion of statement of PW25 Sh. S. Raja that he had personally met with him (Neeraj Khatri) on two/three occasions and that, he met to handover the DD in Chennai on first occasion and secondly in the wedding of the son of co­accused S. Vaikundarajan and third time at his Chennai office. He admitted that S. Raja (PW25) never contacted him for refund of amount of Rs.4,15,000/­ for which amount DD was prepared and added that the money was returned in the year 2013 at the marriage of the son of Vaikundarajan.

163. He admitted as matter of record the portion of statement of PW31 Sh. Yashir Araffat, Insp., CBI that he was investigating the case bearing RC No. 6(A)/2013 against him (Neeraj Khatri) regarding disproportionate assets.

164. In response to the question as to why the case has been made against him, he claimed that CBI has tried to falsely implicate him. He had paid the loan which he had taken from S. Vaikundarajan, who was the local guardian of his son studying at VIT, Vellore. He had paid for the tickets. He stated that the file pertaining to the case with the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 76 of 264 application complete in all respect has been dealt correctly in IA­II and none of the officers/members of EAC have ever pointed out that the procedure was wrong or documents were insufficient or the same has to be dealt in IA­III, which has come on record. He stated that the case is not investigated rationally in an unbiased manner. He claimed that few of the witnesses have falsely deposed against him at behest of CBI. None of the prosecution witnesses except IO has deposed against him and the IO has wrongly stated about the application of project proponent being incomplete and his proposal being placed in EAC meeting by violating the priority, which is accepted by all officials. Only at Director's level, the agenda can be prepared for placing before EAC and the file has been correctly dealt in IA­II according to the procedure laid down in EIA Notification 2006/Central Secretarial Manual (Office Procedures). He further stated that none of the members of EAC has ever pointed out that project shall be considered in IA­III Division or the documents were incomplete in any form.

165. The evidence recorded was put to A­2 S. Vaikundarajan for himself as well as Managing Director of M/s V.V. Minerals (A­4).

166. He admitted as matter of record the portion of statement of PW5 Sh. Sathiyanantha Subramanian that he was engaged with the firm M/s Vairavanthan & Co. As Chartered Accountant and the head of the firm was his father Sh. S. Vairavanthan. He admitted as matter of record the portion of statement of PW5 Sh. Sathiyanantha Subramanian that audit of M/s V.V. Minerals was done by his father Sh. S. Vairvanathan and he R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 77 of 264 prepared audit report (Form ­3CV) Ex.PW5/1 and the said report contained ITR Ex.PW5/2 of M/s V.V. Minerals for assessment year 2013­14, statement of Profit & Loss Ex.PW5/3, balance sheet Ex.PW5/4 and statement of depreciation of firm Ex.PW5/5. He further admitted as matter of record the portion of statement of PW5 Sh. Sathiyantha Subramanian that in Profit & Loss statement Ex.PW5/3 in column of donation, amount of Rs.43,73,000/­ was shown as donation which includes the amount of Rs.4,15,000/­ (amount in question).

167. He further admitted as matter of record the portion of statement of PW8 Sh. Praveen that while he was posted in MoEF&CC, Government of India, from August 2004, letter Ex.PW8/1 dated 15.10.2012 submitted by MD, M/s V.V. Minerals to the Secretary, MoEF& CC, New Delhi, which bears a note written by him at point A (letter is sent to IA­III 8039/CR/BH dated 08.11.2012) and that this letter was marked by him in IA­III Division as the subject matter on the covering letter pertains to the SEZ Project.

168. He further admitted as matter of record the portion of statement of PW9 Sh. Vijay Roy that vide PNR details of passenger of co­accused S. Vaikundarajan and one Sh. Thangrajan K. booked their tickets from Delhi to Chennai and as per their PNR history chart, they boarded the flight on 15.10.2012 in the evening at 7.10p.m. from Delhi to Chennai.

169. He further admitted as matter of record the portion of statement of PW11 Sh. Balasubramanain, Reservation Manager in M/s Raja Travels R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 78 of 264 and Tours, Thoothukudi and in the month of August 2016 vide production­cum­seizure memo dated 29.08.2016 (Ex.PW11/1) he handed over the traveling information Ex.PW11/2 pertaining to him and co­accused Subbulakshmi from the period 01.01.2012 to 31.03.2013 to CBI.

170. He further admitted as matter of record the portion of statement of PW12 Sh. Jagdish Kumar Chaturvedi that Ex.PW6/1 is an acknowledgement letter of M/s V.V. Minerals and submitted personally at the office of MoEF&CC as the office used to put the stamp of CR Section only when the party submitted the letter in person, otherwise, there would have been dak number alongwith the date of CR section and above letter pertains to IA­II Section.

171. He further admitted as matter of record the portion of PW14 Dr. Saroj that writings on document Ex.PW6/1 dated 15.10.2012 and file bearing No. J 11015/435/2012 IA­II (M) were in handwriting of co­ accused Neeraj Khatri as Dy. Director.

172. He admitted as matter of record the portion of statement of PW18 Sh. P. Sreenivasan, who was working as Office Assistant in M/s V.V. Minerals in the year 2012, that Ex.PW18/A deposit slip dated 03.07.2012 was filled by him, though which, he deposited the amount on the direction of Mr. S. Raja, Manager in cash in Federal Bank account number 74068.

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173. He further admitted as matter of record the portion of statement of PW19 Ms. K. Chitra that she was working as Manager in M/s V.V. Minerals from the year 2010 to 2018 and that, she had sent required documents against Ex.PW19/A dated 07.05.2015 to CBI.

174. He further admitted as matter of record the portion of statement of PW19 Ms. K. Chitra that she identified the signatures of co­accused S. Vaikundarajan, Managing Director of M/s V.V. Minerals on cash payment voucher dated 05.07.2012 for amount of Rs.4,15,000/­ Ex.PW19/B and stated that due to oversight, he wrote as donation but during income tax proceedings, he got it correctly assessed with Income Tax Authority as loan.

175. He further admitted as matter of record the portion of statement of PW19 Ms. K. Chitra, wherein, she stated that she identified signatures of Mr. S. Raja and accused S. Vaikundarajan, Managing Director of M/s V.V. Minerals on inter­office communication dated 03.07.2012 Ex.PW19/C and which contained hand written endorsement on office communication in Tamil, which means, "please pay and book under the heading of donation" and stated that he wrote it as donation but during income tax proceedings, got it correctly assessed with Income Tax Authority.

176. He further admitted as matter of record the portion of statement of PW19 Ms. K. Chitra that on request of CBI officials, she handed over the photocopy of the DD for amount of Rs.4,15,000/­ dated 03.07.2012 R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 80 of 264 alongwith her letter Ex.PW19/D and one pen drive Ex.PW19/E containing soft copy of documents to the CBI officials.

177. He further admitted as matter of record the portion of statement of PW19 Ms. K. Chitra that Ex.PW19/F pertains to ledger account of M/s V.V. Minerals, 2012­2013 in regard to heading "donation" for the period 01.04.2012 to 31.03.2013 Ex.PW5/A, there is a cash entry dated 05.07.2012 for amount of Rs.4,15,000/­ pertaining to MoEF officer Chennai payment was made by the accountant on her directions and stated that by oversight, he wrote it as donation but during Income Tax proceedings, got it correctly assessed with Income Tax Authority.

178. He further admitted as matter of record the portion of statement of PW24 Sh. S. Arunachalam, who was working as Assistant Manager in M/s V.V. Minerals since 2011 and had stated that as per the ledger account Ex.PW24/A, it shows the entry amount of Rs.4,15,000/­ dated 05.07.2012 as donation in the name of MoEF officer was made by him on the direction of Ms. K. Chitra, CA and stated that by oversight, he wrote it as donation but during income tax proceedings, he got it correctly assessed as loan.

179. He further admitted as matter of record the portion of statement of PW25 Sh. S. Raja that he was working as Manager in M/s V.V. Minerals since 1998 that on instruction of Smt. Subbulakshmi, Liason Officer, he got prepared the DD Ex.PW15/B for the admission of one of the officer from Delhi and that, he had handed over the imprest money R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 81 of 264 to one of his employees after talking telephonically to accused (S. Vaikundarajan), which he handed over to co­accused Neeraj Khatri nearby his office in Chennai and stated that it was written by oversight as donation but it was got correctly assessed during Income Tax proceedings as loan.

180. He further admitted as matter of record the portion of statement of PW25 Sh. S. Raja that Ex.PW19/C inter­office communication dated 03.07.2012 was written by him for reimbursement of Rs.4,15,000/­, which was used for preparation of DD Ex.PW15/B.

181. He further admitted as matter of record the portion of statement of PW25 Sh. S. Raja that he gave the amount of Rs.4,15,000/­ in cash as the amount of Rs.5,00,000/­ remained with him as imprest for the purpose of purchasing material for company to Sh.Sreenivasan to prepare the DD in favour of VIT University, Vellor and that the amount was deposited in the account of Sreenivasan in Federal Bank and DD Ex.PW15/B was prepared and stated that by oversight, he wrote it as donation but during Income Tax proceedings, he got it correctly assessed with Income Tax Authority as loan.

182. The evidence recorded was put to A­3 Ms. Subbulakshmi.

183. She admitted as matter of record the portion of statement of PW­ 25 Sh. S. Raja that he was working as manager in M/s V.V. Minerals and on her instructions (Ms.Subbulakshmi), Liaisoning Officer, he R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 82 of 264 got prepared the DD Ex.PW15/B for the admission of one of the officer from Delhi.

184. Further, in her statement of accused, she admitted as a matter of record the statements of PW9 and PW11 qua booking the flight through same PNR No WFQ7CE for Delhi - Chennai and her then cancelling and rebooking flight on same date and time to Surat and payment for Neeraj Khatri (A1) and his son was not made by her.

185. After the completion of statement of accused, the final arguments were addressed.

186. Ld. Sr.PP has tendered his written submissions in writing on record in detail and has also made oral submissions. It is elaborated that subsequent to the case being registered against the act of A­1 having demanded and accepted bribe of Rs.4,13,000/­ in form of DD dated 03.07.2012 in favour of VIT University from A­2, the accused indulged in imparting undue favour at his instance as A­2 and A­4 were aware about requisite environmental clearance from MoEF&CC. It is argued that through A­3, who was working on contract basis with A­4, the bribe was processed.

187. It is argued that pursuant thereto, A­1 and his son flew from Delhi and back from Chennai to Delhi on 4th and 5th July against the tickets arranged by the accused. It is stated that through PW­9 Vijay Roy, Sr. Manager, Spicejet, the travel on the part of A­1 and his son is proved by Sh.Balasubramanian, Manager, Raja Travel and Tours. It is shown that payments were not made by accused for such travel.

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188. It is also argued that PW­2 has categorically deposed that none of the afore­mentioned transactions were recorded by A­1 and PW­10 has shown that no official tickets for the travel were issued by protocol division of MoEF&CC. It is argued that the provisions of Section 11 of PC Act are attracted against A­1 for obtaining valued things without consideration from accused M/s V.V. Minerals and the presumption under Section 20 also comes to the aid of prosecution and hence sufficient evidence is available against the accused, who must be convicted under Section 13(2) read with Section 13(1)(d) of P.C. Act.

189. It is stated that there is sufficient material to prove the demand of bribe as the witnesses more specifically PW­25 Sh. Raja, PW24 S. Arunachalam, PW­18 Sreenivasan P., PW­19 Ms. K. Chitra and PW­20 Sh. K. Peter have successfully proved the demand having been made and the payment is also established through PW­3 Varun Saihgal, Advisor in VIT University that the payment for Rs.4,13,000/­ was made for securing admission of Sidharath Khatri.

190. It is argued that the amount so paid against the DD Ex.PW15/B has been shown as "donation" and is recorded as such in ITR which is affirmed during the statement of PW­22 Nandni R. Nair, Asstt. Commissioner, Income Tax.

191. Regarding the impropriety of accused Neeraj Khatri, witnesses such as PW­8 Sh. Praveen, PW­33, Amardeep Raju, Scientist­D working with R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 84 of 264 MoEF&CC, PW­27 T.V. Ravi, Director, SEZ, PW­16 Jainuddin Ali Ahmad, PW­12 Jagdish Kumar Chaturvedi, PW­14 Dr. Saroj, the then Director have established the procedure.

192. It is argued that there is sufficient material, which has proved conspiracy between the accused persons as PW­15 Sh. Amjith C. Johan, PW­17 Sh. N. Selvam, PW­18 Sreenivasan P., PW­19 Ms. K. Chitra, PW­20 Sh. K. Peter, PW­24 S. Arunachalam and PW­25 Sh. S. Raja have proved the entire conspiracy.

193. It is argued that there is sufficient material for proving charge under Section 12 of P.C. Act against A­2 S. Vaikundarajan and A­3 Ms.Subbulakshmi for abetting the offence under Section 7 P.C. Act for offering bribe.

194. It is averred that since sanction for prosecution is duly proved by PW­1, no material is available for acquittal.

195. Written arguments have been tendered by all the ld. Counsels appearing of behalf of accused. Ld. Counsel Sh.Ajit Singh on behalf of A­ 1 Neeraj Khatri has made detailed submissions in writing and has also supported them with his oral submissions. Similarly, Sh. Harsh Sharma, ld. Counsel for A­2 and A­4 and Ms.Shvetima Dwivedi, ld. Counsel for A­3 have availed opportunity for filing written submissions and have made oral submissions through Video Conferencing and physical hearing.

196. All accused claimed that a false case has been planted upon them. It R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 85 of 264 is claimed that A­1 was posted at MoEF&CC and was Dy. Director. It is averred that no application for environmental clearance of M/s V.V. Minerals was pending with MoEF&CC. It is argued that A­1 Neeraj Khatri took help from A­2 S. Vaikunddarajan for admission of his son Sidharath Khatri, who had secured admission in VIT University for academic year 2012­13 and the amount was taken in form of loan, which was repaid in the year 2013, as Rs.5 lakhs comprising loan amount and interest were returned to A­2 S. Vaikundarajan.

197. It is averred that in order to prove the present case against the accused, the essential component i.e. demand of bribe must have been proved as sin qua non, however, the prosecution has failed to show any favour done by public servant for A­4 M/s V.V. Minerals.

198. Ld. counsel Sh. Ajit Kumar Singh while arguing for A­1 presented his part of submissions and averred that there is no allegation of demand in the charge­sheet and none of the PWs has come forward to indicate in their depositions regarding demand of bribe. It is stated that not even a single witness has deposed that A­1 Neeraj Khatri demanded any bribe through A­3 Ms. Subbulakshmi or otherwise for clearing the application of M/s V.V. Minerals. No document in support of the aforesaid has been placed and there is no material in the entire charge­sheet or by way of any document which may prove that both A­1 and A­3 met in Delhi. It is argued that mere presence of A­3 Ms.Subbulakshmi in Delhi will not tantamount that she met A­1 and he demanded the alleged bribe.

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199. While arguing in detail, it was averred by Sh. Ajit Singh that demand of bribe, if, is defined, requisites a "right", which is missing in the present case. The accused only solicited a favour by way of loan which cannot be drawn on parity with demand of bribe. It is averred that the requirement of accused was of urgent nature and since accused were familiar to each other he only sought the help/or assistance in natural course.

200. It is argued by Sh. Ajit Kumar and Sh. Harsh Sharma, ld. Counsels that during investigation, it came to the notice of CBI that the amount of Rs.4,15,000/­ was taken as loan instead of donation which fact was deliberately not inquired from any accused and the investigating officer did not verify the ITRs of subsequent years of M/s V.V. Minerals as ITRs clearly showed that money was repaid.

201. It is argued that the aforementioned fact that the amount is a loan transaction is strengthened from the statements of PW­5 Sh. Sathiyanantha Subramanian, who admitted that the amount of Rs.4,15,000/­ was returned by the officer of MoEF&CC in the subsequent year which fact he did not convey to CBI as it was not asked from him and was also stated by PW­18 Sh. P. Sreenivasan, who in response to a specific question admitted that the amount of Rs.4,13,000/­ was loan and it was returned by A­1 Neeraj Khatri in the year 2014­15. Similar statement is made by PW­19 Smt. K. Chitra, who stated as below :

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"it is correct that the amount of Rs.4,13,000/­ was treated as loan to Neeraj Khatri"

202. It is argued that she further admitted as correct "that due to inadvertance S. Vaikundarajan entered the aforesaid amount of Rs.4,15,000/­ as donation" and that "the amount of Rs.4,15,000/­ was returned by Neeraj Khatri".

203. Even in response to the court question, the witness affirmed that the amount was returned in October, 2013, which was reflected from the statement of M/s V.V. Minerals for the financial year 2013­14 and assessment year 2014­15. PW­25 Sh. S. Raja also admitted that he told CBI during statement that Ms. Subbulakshmi had informed that amount of Rs.4,15,000/­ will be returned by the officer.

204. It averred that at the time i.e. 03.07.2012 even the formal approval was not received from the Ministry of Commerce which only on 06.07.2012 made the approval and it is highly improbable for Managing Director of a company to speculate that he would require help of public servant since even the formal approval even was not obtained from the Ministry. In his arguments, he sought support from the statement of PW­ 28 Sh. N.V. Navaneethakrishnan, who had stated that he was not able to admit or deny whether at the time of issuance of DD the file was pending or not pending before Neeraj Khatri.

205. It is argued that Neeraj Khatri could not do any official favour or dis­favour since no proposal was pending at the relevant time with his R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 88 of 264 office as the approval from Ministry of Commerce and Industry was received on 06.07.2012. It is argued (jointly with ld. Counsel for A­2 and A­4) that on the date A­1 accepted the demand draft, no matter of A­4 was pending with him. He was not aware of any such matter likely to come to him as the file was yet not cleared from Ministry of Commerce. It is argued that file/formal sanction/approval from Ministry of Commerce was received on 06.07.2012 till which date, A­1 was not dealing with the proposal.

206. It is claimed that receipt of amount was devoid of any reciprocal promise which is inherent ingredient of demand of bribe. Thrust is placed on statement of PW27 who has stated that till the clearance is received from the Ministry of Commerce, the Ministry of Environment Clearance was not to be approached.

207. It is argued that air tickets from Delhi to Chennai for Neeraj Khatri and Sidharath Khatri and from Chennai to Delhi were purchased and paid by Neeraj Khatri and the tickets in the name of Ms. Subbulakshmi was paid by her personally. It is averred that it is revealed during evidence that Ms. Subbulakshmi used to travel for the work of M/s V.V. Minerals in which scenario the payments were made by M/s V.V. Minerals, however, whenever she traveled in her personal capacity she paid for the tickets herself and it is clear from the statement of made by PW­11 Sh. Balasubramanian, who revealed that ticket having PNR WFQ7CE was booked by Ms. Subbulakshmi for herself, Neeraj Khatri and Sidharath Khatri and Subbulakshmi personally paid for these R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 89 of 264 tickets. In further statement, the witness disclosed that he had received certain payments by Ms. Subbulakshmi against her ledger, though, he did not clarify for which ticket she was paying money. He further stated voluntarily that for the tickets of Neeraj Khatri and Sidharath Khatri, the payment was received in 2017 from Neeraj Khatri in cash.

208. Ld. Counsel argued that in the proposed project the activities both from IA­II and IA­III Divisions were attracted and therefore, two separate applications were submitted by M/s V.V. Minerals in both the divisions and both the applications were allotted separate diary numbers and file numbers.

209. It is argued that since the project was done alongwith SEZ project, it comprises multiple activities like mining, which requires clearance in CRZ (IA­III Division) and other processing activities required clearance under IA­II Division and hence, the right proposal to be followed was according to major project, which was mineral processing plant and hence, it was to be dealt in that particular division i.e. IA­II and the same was to seek observations/comments for other related projects and hence, the applications were submitted in both the divisions. Ld. Counsel has relied upon the portion of statement made by PW­26 Sh.Sushil Kumar Srivastava, PW­30 Sh. Chandra Mohan Sharma and PW­33 Sh. Amardeep Raju.

210. It is averred that accused Neeraj Khatri had no role in processing which require clearance under IA­III and IA­II divisions and was R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 90 of 264 submitted in both divisions. It is averred that as Dy. Director he could have only assisted the Director in recording the minutes and examining the proposal and as per Central Secretarial Manual, the proposal can be directly submitted to Director or Dy. Director and if any such proposal is received directly the same was to be forwarded to Section Officer for further action and after reviewing the same, Section Officer puts up for next EAC meeting and it is explained by witness that the proposal was sent alongwith diary number to the concerned Section Officer which fact is accepted by PWs that whenever he received the proposal he forwarded it on the same date i.e. 15.10.2012 to Section Officer. Reliance is made on portion of statement of PW­30 Sh. Chandra Mohan Sharma, PW­14 Dr. Saroj, and PW­12 Sh. Jagdish Kumar Chaturvedi.

211. It is averred that there was no anomaly in the proposal and the allegations of the prosecution that signatures were missing in Ex.PW6/1 whereas same are appended upon Ex.PW8/1, is of no consequence. It is argued that there is no provision for signatures in the enclosed appendix­ I (application form) pre­feasibility report and hence, the allegations are not tenable. Moreover, the proposal was sent to Section Officer for further scrutiny, who did not point out that the signature was missing since it was not required. He marked the proposal to Director before putting up for EAC meeting and even the Director did not point out about the missing signatures or the proposal being incomplete and it is apparent that none of the officers who dealt with the file ever pointed out that the procedure is wrong or the documents were insufficient.

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Reliance was made on the statement of portion of PW­7 Sh.Surender Kumar.

212. It is argued that no urgency was shown by A­1 Neeraj Khatri by mere putting "to be considered in next EAC meeting (November) urgent", it is argued that the project was received in Central Registry Section of Ministry on 15.10.2012. As per Ex.PW6/1, the file was marked by him on same date to be sent to other division, however, the same was kept in office for 15 days as the other Section received the file on 31.10.2012, the other divisions diarized the receipt on 05.11.2012, which was sent to dealing hand on 09.11.2012. Despite the file having noting for putting up in November meeting, the same was included in the meeting held during 13­15 March, 2013, which showed A­1 did not do any favour to A­2 or A­4. He read over and relied upon the portion of statement of PW­30 Sh. Chandra Mohan Sharma and PW­14 Dr. Saroj to support his averments.

213. It is averred that accused did not even ensure that such file is pending even through there is direct guideline from Government to look for such cases urgently. It is argued that A­1 was posted as Dy. Director till January, 2013 and he did not ensure even once if any such file is pending although, there is guideline from Ministry for expeditious dealing with such matters.

214. Lastly, it was argued that there was no valid sanction and it was claimed that the sanction is granted without careful perusal of R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 92 of 264 documents enclosed with the proposal from CBI. Part of statement of PW­1 Sh. Vazir Singh and PW­2 Sh. Shekhar Ranjan Amin was relied upon in this regard.

215. Ld. Counsels vehemently relied upon the law laid down, as follows :

(i) Khaleel Ahmed Vs. State of Karnataka, (2015) 16 SCC 35;

(ii) C. Sukumaran Vs. State of Kerala, (2015) 11 SCC 314;

(iii) B. Jayaraj Vs. State of A.P., (2014) 13 SCC 59;

(iv) P. Satyanarayan Murthy Vs. Distt. Insp. of Police, State of A.P., (2015) 10 SCC 152;

(v) Mukhtiar Singh Vs. State of Punjab, (2017) 8 SCC 136;

(vi) C.B. Nagaraj Vs. State of Lokayukha Police, Davanagree, (2013) SCC OnLine Kar 5293;

(vii) Sharad Yadav Vs. Union of India, 1999 (41) DRJ;

  (viii)      L. K. Advani Vs. CBI, 1997 (41) DRJ;
  (ix)        C. Chenga Reddy & Ors. Vs. State of A.P. , (1996) 10 SCC
              193;
 (x)          Ramreddy Rajesh Khanna & Anr. Vs. State of A.P. , (2006)
              10 SCC 172;
 (xi)         Vandivelu Thevar Vs. State of Madras, (1957) SCR 1981;
 (xii)        Narindra Mohan Sharma Vs. State of Rajasthan,
 (xiii)       Asharfi Lal Vs. State of UP;
 (xiv)        State Vs. Awadhesh Narayan;
 (xv)         Punjab Rao Vs. State of Maharashtra, (2002) 10 SCC 371;
              and,
 (xvi)        M. Abbas Vs. State of Kerala, (2001) 10 SCC 103.

216. Ld. counsel Sh. Harsh Sharma, who appeared on behalf of A­2 Sh. S. Vaikundarajan and A­4 M/s V.V. Minerals, tendered his written arguments, which I am not reproducing for the sake of brevity as most of them have already been discussed above (since the arguments have been R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 93 of 264 addressed jointly by him alongwith ld. Counsel for A­1 and are overlapping and repetitive in nature). Ld. Counsel also tendered his additional written submissions on 06.08.2020 and participated in oral arguments through physical and VC hearings. Submissions which are exclusive to A­2 and A­4 are being dealt in following pages at appropriate stages. Ld. Counsel has relied upon the following case law :

(i) Sanjay Kumar Singh Vs. CBI, 2019 III AD (Delhi) 545;

(ii) Vikram Singh Vs. CBI, 2018 III AD (Delhi) 288;

(iii)Khaleel Ahmed Vs. State of Karnataka, (2016) 1 JCC 163 (SC);

(iv)P. Satyanarayan Murthy Vs. Distt. Insp. of Police, State of A.P., (2015) 10 SCC 152;

(v) B. Jayaraj Vs. State of A.P., (2014) 13 SCC 55; and,

(vi) Sujit Biswas Vs. State of Assam, (2013) 12 SCC 406.

217. On behalf of A­3, Ms. Shwetima Dwivedi has made her submissions. She reiterated that there is no demand. Accused was not present at the relevant time in Delhi. It was averred that A­3 was working for the region of Andhra and Tamil Nadu. She further submitted that PW­25 has stated clearly that the amounts were returned and hence there was no exchange. It was averred that she has relied upon on her written submissions and same may be perused while deciding the submissions. She relied upon the judgement Subramaniam Swami vs. A. Raja (2012) 9 SCC 257 in support of her arguments to rebut the charge of conspiracy.

218. After tendering the written submissions, ld. Counsels appearing for defence as well as ld. Sr.PP utilized the platform of Video Conferencing R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 94 of 264 and made their submissions orally.

219. Sh. Ajit Singh, ld. Counsel arguing on behalf of A­1 pointed to the charge­sheet and stated that the complaint in this case was lodged due to some entry made in disproportionate assets case against A­1 and there was no complaint received by CBI from any corner for his prosecution. It is stated that the present case is planted upon accused by CBI as no other witness except PW­34 Shobha Dutta, IO in this case has supported the case of prosecution. It is averred that the charge­sheet itself narrates that the exchange of demand draft was made on 3rd­ 4th July, 2012, whereas the first communication of A­2 with A­1 took place in connection with the official work on 15.10.2012. Admittedly, no transaction was pending with the accused in official capacity at the time the demand draft was given. It is stated that the charge­sheet also suggests that there is no infirmity in receiving the application directly as it can occasionally be received as per Central Secretariat Manual. It is stated that the fact that A­1 and A­2 were known to each other in their personal capacity through the brother of A­1 is not contradicted as no question is put to either of the accused under statement of accused persons u/s 313 Cr.P.C. and by omitting to ask this question, this fact remains admitted in favour of the accused and it is proved that there was no wrong in the transaction materialised through personal contact, which was not bribe but merely a loan.

220. It is claimed that the entire prosecution story has arisen against the accused persons from the theory of conspiracy which is not based on any R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 95 of 264 material evidence. It is claimed that only presumptions are raised which do not constitute evidence against the accused persons.

221. It is argued that from the statement of PW­28 Sh. N.V. Navaneethakrishnan only evasive response was received as the witness was not able to suggest demand. Similarly, PW­34 Shobha Dutta was not clear about the process of project proposal that either IA­II or IA­III has dealt with the mining for which proposal was made.

222. It is argued that no documentary evidence was available to suggest the contact between A­3 and A­1 or their meeting. Even the call records are not produced and by doing so prosecution has withheld the evidence. It is averred that mere presence of A­3 in Delhi is insufficient to construe any inference of demand. It is claimed that prosecution withheld best evidence by not submitting the CDR which could have exclusively established the existence of communication between A­1 and A­3. It is argued further that prosecution witnesses themselves admitted that A­1 was not competent to get the clearance done by the committee and the agenda was to be finalized at the end of Director and A­1 was to merely assist in the aforesaid process.

223. It was submitted by Sh. Ajit K. Singh that as per letter of Sh. C.M. Sharma (Chander Mohan Sharma) dated 21.01.2013, which was received by Director of M/s V.V. Minerals on 28.02.2013, it was nowhere stated that the proposal was incomplete and was in deviation of procedure of having been submitted to any other division.

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224. Ld. Sr.PP made his rebuttal submissions on 06.03.2020. While rebutting the arguments of demand, he averred even in the absence of direct evidence of demand, sufficient material though circumstantial evidence, directly pointing out to the involvement is available and is reliable evidence. To support his submissions, he relied upon judgment of State of Gujarat vs. Mansurbhai Motibhai Damor (1996) 3 GLR 620.

225. He also relied upon Hazarilal vs. Delhi Administration 1980 AIR 873 and argued that the presumption under Section 20 PC Act lays the onus upon accused to prove otherwise or suggest clearly through evidence that accused is not connected to the transaction.

226. It is stated that under relevant provision of Section 7 the words used are "motive" and "reward". While the "motive" is for soliciting the favour in future, the "reward" is by way of receiving of accomplishment of undue favour.

227. He further argued that the capacity of accused is not material or required as is held in Mahesh Prasad vs.State of UP 1955 AIR 70 and Jwala Prasad vs. State of UP 1997 (Cri.LJ) 1103.

228. He averred that the amount received by accused was not loan but bribe since the accused handled and dealt with the proposal and in furtherance of the aforesaid averments, reliance was made on Shivraj vs. Delhi Administration AIR 1968 SC 1419 as well as Chaturdas Bhagwan Dass Patel vs. State of Gujarat AIR 1976 SC 1497. He argued R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 97 of 264 that if a public servant uses his official position, it is sufficient to constitute an act of undue favour and to reach on the conclusion that he dealt with the matter in official capacity and the nexus between the official act and demand is not necessary. It is sufficient that the act is dealt with by the accused in official capacity and/or is an official act and he has used his official position to extract the advantage or undue favour as in the present case is made by A­1 in favour of A­2 and A­4.

229. While rebutting the averments of A­1, it was submitted that there is no requirement for placing on record the written documents to suggest any contact of A­1 and A­3 and/or the CDR between both the accused as he stated that primarily CDR is a corroborative piece of evidence while the documentary evidence is available to show that the proposal was furnished by the accused in CR Section while A­1 took the acknowledged copy and himself made endorsement thereon.

230. Ld. counsel for A­2 to A­4 made further submissions on 03.03.2020 and averred that the provisions of Section 20 of PC Act cannot be attracted to the present case as in order to attract any presumption against the accused, the prosecution must show any valuable thing having been exchanged while in the present case there was no consideration which was made for receiving the valuable thing by the accused and even the money received by way of D/D stood returned prior to registration of the FIR. It is averred that there is no rebuttal of this fact by CBI, whereas, the defence evidence led by A­2 has specifically established this fact that the amounts paid to A­1 were by way of loan and were returned even prior to R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 98 of 264 registration of FIR in this case. It is argued that there is no rebuttal to the fact that has been stated by A­2 in his defence evidence that he was a local guardian of Sidharath Khatri, son of A­1 and had familial relations and the money has been paid on the aforesaid ground which was returned and duly recorded in the ITR.

231. He relied upon Section 20(2) PC Act and read the statements of PW 28, PW31 and PW34 to seek support to claim that as the return of payment was made and the documents existed even prior to registration of FIR, the prosecution case stood demolished.

232. He further added that even in the ITR, the amount is mentioned as "donation" and argued that qua the ticket there is no evidence that the air tickets were purchased either by A­2 and A­4.

233. He averred that while the entire case of the prosecution revolves around the expeditious processing of the proposal of A­4, as per the statement made by prosecution witnesses themselves and especially by IO/PW34 Shobha Dutta, it is shown that no proposal was pending with accused when the amounts were given and the application came only in October, 2012, which demolishes the arguments of prosecution for expeditious process. He has relied upon the judgment of S.K. Bhatia vs. CBI (Crl. A.1256/2014) (DoD 19.08.2019) to support his arguments.

234. It was further argued that no offence is made against the accused persons for providing loan from company account. He averred that the prosecution has failed to rebut the evidence that A­3 was dealing with the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 99 of 264 proposals for Gujarat and Andhra Pradesh and was not involved in the present proposal.

235. He averred further that while alleging A­2 and A­4 as "abattor of crime" no evidence is brought to link A­2 and A­4 as vicarious liability cannot be fastened upon A­4, which is a company for the acts of A­2 who is Managing Partner. He relied upon the judgment of Iridium India Telecom Ltd. Vs. Motorola Incorporated & Ors. (Crl. Appeal No. 688/2005) (DoD 20.10.2010) and Sunil Bharti Mittal Vs. CBI (Crl. Appeal No. 34 of 2015) (DoD 09.01.2015) to support his contention.

236. He relied upon the portion of cross­examination of PW34, wherein, she was asked specifically about the existence of any evidence of demand of bribe during the relevant proposal of 15th October to July, 2013 of which he claimed that no specific answer was made which establish that there was no demand at the relevant time when the present proposal was pending with the concerned accused and since the demand is only presumptive and not supported with proof, no case against the accused persons is made out.

237. While rebutting the arguments on behalf of prosecution, ld. Sr. PP made his rebuttal arguments and stated that there is material circumstance shown by way of evidence that the payment of Rs.4,13,000/­ was transacted which showed demand and acceptance of bribe by A­1. He sought assistance from the provision of Section 20 of PC Act and claimed that burden shifted to accused to prove that it was not R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 100 of 264 illegal grant, whereas, the defence could not show contrary. He averred that the evidence placed on record showed the amount as "donation', whereas, it is being projected as "loan". He argued that there was no relationship between A­1 and A­4 in order to facilitate the payment of loan.

238. He argued that PW27 has clearly stated that SEZ proposal was initiated by accused company earlier and they were under clear aware knowledge that they have to seek the assistance of accused in the present matter. He argued that there is a flip flop in the version of accused and no uniformity is maintained made before the court and no evidence is shown that how the amount is returned which is allegedly paid in cash. He argued that the entire argument is merely an eye wash to cover up the bribe transaction.

239. It was argued that qua the provision of Section 7 (PC. Act) any amount which is given as "motive" or "reward" is illegal transaction. In the present case, it was "motive" since the proposal was pending and it was in the mind of the accused that they can seek the help of A­1. It is averred that in such circumstance it cannot be stated that no work was pending as it is not necessary that the work is pending and only capacity of accused matters.

240. While rebutting submission that no urgency was shown by A­1 in dealing with the matter, he averred that there is cogent evidence available that he accepted the acknowledged copy of the proposal and wrote with R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 101 of 264 his hand for putting up in the next EAC meeting which is sufficient to show his indulgence.

241. On the point of sanction, he relied upon paras 13 to 17 of the judgment in the case of State of Maharashtra (through CBI) vs. Mahesh G. Jain (Crl. Apeal No. 2345/2009) (DoD 28.05.2013) and read the evidence in conjunction to support his arguments.

242. Qua the allegations against A­3, he argued that the accused was working in Delhi and was in touch with A­1. The air tickets were purchased through her and at her instance the demand draft was made, which is sufficient to show her involvement. It was averred that amount for air travel was paid from the account of A­3. The travel agent Bala Krishnan have claimed to receive the amount in cash which is devoid of any material.

243. While rebutting further submissions, he argued that the provisions of Section 12 PC Act have been attracted against A­2 since he did not make complaint regarding the bribe demand and in conjunction with the provisions 120B IPC with Section 12 PC Act there was mutuality between A­1 and A­2 which is shown from his conduct regarding keenness to pay the bribe.

244. Similarly, it was submitted by ld. Sr. PP that acts of A­1 in not applying leave, providing no permission to travel to the department shows he was not on official tour and in not furnishing necessary intimation of loan as alleged are all contrary to the provisions of CCS/CCA rules and R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 102 of 264 Section 8 of Indian Evidence Act is to be observed in this context as the above are relevant material facts.

245. While rebutting the argument of vicarious liability, it was averred that the acts of A­2 were on behalf of A­4 in forwarding the proposal of MoEF due to which A­2 made the payment of the amount of D/D of Rs.4,15,000/­ by seeking to facilitate the work of A­4 and there was a active participation and at the instance of A­4, A­2 carried out the aforesaid exchanges.

246. While further submissions were made on 18.07.2020, ld. Sr.PP made vehement rebuttal to the arguments tendered by the accused persons and stated that principles of Section 120B IPC are well established. He also relied upon the relevant provisions of Section 11 of IPC and cited the case law of Avnish Bajaj vs. State (2008) 105 DRJ 721 in support decided by Hon'ble Mr. Justice S. Muralidhar, wherein, necessary principles of Section 11 of IPC have been elaborated in conjunction of Section 120B IPC.

247. He further submitted that sufficient material is available to attract the provisions of Section 120B IPC. It was averred that under the relevant provisions what is necessary to be shown is meeting of the minds of the accused persons which can be inferred from their conduct and acts of participation for which evidence must be available. He stated that sufficient material is brought on record to prove the charges against all the accused persons.

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248. While making his further submissions in rebuttal on 25.07.2020, he averred that the law relating to vicarious liability is made clear by Hon'ble Supreme Court in the case of Standard Chartered Bank & Ors. Vs. Directorate of Enforcement & Ors. (2005) 4 SCC 530, while the earlier law was that the company cannot be prosecuted for the acts of offence running the company, which proposition is now altered as it is settled that the officials as well as the company both can be prosecuted. It is averred that Hon'ble Supreme Court has invoked the provisions of "alter ego" i.e. the State of mind of official being the mind of the company which is explicitly clear in the present case as A­2 was holding the same as that of the company. He also relied upon the judgment of Sunil Bharti Mittal (supra), where the principle above is made.

249. Rebuttal submissions to above arguments of prosecution were made. Ld. Counsel Sh.Ajit Singh claimed that the judgments relied upon by the prosecution are not applicable to the present case. He relied upon the judgment of Avinesh Sharma vs. State of UP 2019 SCC Online 4282 Allahabad High Court (DoD 06.03.1999). However, ld. Counsel appeared before the court and clarified that he has erroneously mentioned the above citation and is not relying upon the same.

250. While making further arguments, ld. Counsel Sh. Harsh Sharma in his oral submissions on 05.08.2020 rebutted the submissions made by ld. Sr. PP and averred that the judgment of Mahesh Prasad (supra) and Jwala Prasad (supra) have no connection with the present case. While R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 104 of 264 making submissions on provisions of Section 11 PC Act, he averred that air tickets fall in the category of valuable thing without consideration but claimed that word "likely to be" cannot be kept indefinite and the accused must know that it is going to come behind him and relied upon the judgment of Selvi Jayalalithaa vs. CBI (Crl. OP No. 19152/2010) (DoD 30.09.2011) (paras 22 to 26) and also R.S. Nayak vs. A.R. Autenlay 1984 AIR 684. He averred that the transportation of knowledge from A­2 to A­ 1 must be shown and while relying on the fact that A­3 paid for herself and the accused paid for himself and read that essence of knowledge the provisions of Section 7 read with Section 11 PC Act cannot be attracted against the accused.

251. While arguing further for A­1, Ld. Counsel Sh. Ajit Singh argued that A­1 has suffered conviction in another case (on which basis he is charged under Section 13(1)(a) for being a habitual offender) u/s 7 PC Act which provision is not applicable here, and hence, the said conviction does not stand against him. It is only provisions of disproportionate case for which accused is facing trial in which case A­4 is not made a witness and hence, no motive or reward is to be applied for attracting the provisions of Section 13(1)(d) for which it is necessary that the accused accepted the payment by corrupt or illegal means whereas, in the present case what is accepted by accused is a loan.

252. While rebutting the submissions qua applicability of Section 120B IPC, it was averred that the prosecution was under the burden to prove prior meeting of mind in furtherance of which it should be shown that R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 105 of 264 accused by own act implemented what they had as prior meeting of mind which should be said an illegal act, whereas, no evidence to show of any meeting or talks with A­3 is brought on record. It is averred that A­1 and A­3 did not meet. Further, A­2 had no knowledge of son of A­1 in participating in competition and getting admission which was requisited to be shown for him approaching A­1 for payment of bribe. While the copy of ITR was available, the same was not taken at the stage of charge, however, even in statement recorded u/s 313 Cr.P.C., the accused has stated for return and accounting of the amount. He relied upon the judgment of Samsul Haque vs. The State of Assam (Crl. A. No. 1905/2009) (DoD 26.08.2019). Relevant paras 22 and 23 on the aspect of statement under Section 313 C.P.C. and claimed that if the portion of statement was not put to the accused, it cannot be read against him. He also relied upon judgment of Allahabad High Court in case of Ganesh Sharma vs State of U.P. (DoD 06.09.2019) and stated that judgment of a trap case equally can be relied upon in this case and the prosecution must show acceptance of the amount while voluntarily knowing it to be bribe.

253. He further stated that if requisits of Section 7 is not made, then Section 13(1)(d) PC Act cannot be made applicable. He also relied upon the judgment of Sulen Singh Vs. Jharkhand High Court 2020 SCC OnLine Jhar 631. He also relied upon para 49 to 52 on a similar transaction of loan in C.M.Girish Babu vs CBI, Cochin, High Court Of Kerala (2009) 3 SCC 779.

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254. While making further submissions, ld. Sh. Harsh Kumar Sharma by his additional arguments raised the issue of amendment in PC Act. (His detailed submissions are discussed in following paras and are reproduced, accordingly, same are not detailed here for the sake of brevity.

255. While rebutting the submissions, ld. Sr. PP cited the judgment dated 21.08.2017 of Hon'ble Supreme Court in SEBI vs. Classic Credit Card Ltd. (2018) 13 SCC 1.

256. He further argued against averment of applicability of reciprocity of amendment and relied upon the law laid down in SEBI (supra) paras 68 to 70 and submitted that where the substantive offence is amended, it shall be read prospectively.

257. During oral arguments on 04.12.2020 ld. Sr.PP sought amendment in written submissions and submitted that in place of word "them" it be read as "her" at page 6 para 4 (line 6 from the bottom) The counsel for A­2 and A­4 gave his consent however, ld. Counsel for A­1 and A­3 raised objection. It is submitted by ld. Sr.PP that the written submissions have been typed in his office and an inadvertent error has occurred. It is not disputed that the submissions are typed. The argument at length are being made and are yet to be dealt with in detail and are to be read in conjunction that with the facts, statements and evidence on record. No detriment is likely to occur and accordingly, written arguments which otherwise are not to be filed necessarily, and have been filed by the prosecution as a matter of convenience to put forth the submissions in R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 107 of 264 concise form may be allowed to be read as in right spirit, as are being proposed and in conjunction with the oral submissions.

258. While the matter was heard in detail on above dates, on 19.01.20121 ld. Sr. PP sought to place on record the certified copy of judgment of conviction of accused Neeraj Khatri passed on 12.10.2017 by ld. Sh. N.K. Malhotra, the then ld. Special Judge, (PC Act), CBI. Since no objection was raised, the application was allowed and certified copies of judgment of conviction and sentence were taken. However, it was to be observed that despite placing the copy, prosecution had not availed the opportunity of its tendering and cross­examination by opposite side, which opportunity was sought by both parties. Prosecution vide statement of HIO/SI Devesh Kumar tendered certified copy of the judgment of Sh. N.K. Malhotra, ld. Special Judge (as then he was). He was cross­ examined. Subsequent thereto, statement of accused Neeraj Khatri (A­1) u/s 313 Cr.P.C. was recorded on this aspect, as at an early stage when his statement was recorded the judgement and sentence order relied upon by the prosecution were not available on record. A­1 during his 313 Cr.P.C. statement sought to appear as his own witness, which opportunity was accorded. He deposed separately and was cross­examined by ld. Sr.PP, whereafter, his DE was closed.

259. Further submissions on the aforesaid aspect were made by ld. Counsels as well as by ld. Sr.PP. It was averred by ld. Counsel appearing for A­1 that the judgment of Sh. N.K. Malhotra, ld. Spl. Judge is under challenge and the conviction has not become final. It was stated that the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 108 of 264 operation of the impugned judgment and sentence is stayed. Self attested copy of the appeal was relied upon which was exhibited as Ex.DW2/1 alongwith copy of orders of Hon'ble High Court dated 15.11.2017 and 13.12.2017 exhibited as Ex.DW2/2 (colly.).

260. After conclusion of above proceedings, I, now hereby propose to deal with the marathon submissions detailed above [subsequent to the opportunities to address the arguments was granted through VC (due to COVID­19 pandemic) on various dates].

261. The question which gains pertinence for discussion and is also the genesis of the entire arguments of the defence is whether this amount paid through and accepted by way of Demand Draft is capable of being read and interpreted as loan to suggest absence of demand of bribe as is being argued by the defence as ld. defence counsels have vehemently disputed the contention of the prosecution that the demand draft with face value of Rs.4,13,000/­ was paid towards undue favour to A­1 in order to secure advantage in favour of A­2 and A­4 through the services of A­3,who was employed with A­4 as Liasion Officer. The submissions of the ld. Defence counsels and the rebuttal thereupon by the prosecution is proposed to be dealt under following sub­headings :

The amount was shown as donation

262. In order to lay stress on the aspect that the aforesaid amount of Rs.

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4,15,000/­ was not bribe, it was calimed that D/D Ex.PW15/B was given as a loan.

263. While, all through, it is argued that the amount in question vide D/D Ex.PW15/B with face value of Rs.4,13,000/­ was provided as loan, it is intriguing in the first instance to note that this amount is nowhere accounted as loan but is shown as donation in the accounts of A­4.

264. It is averred by defence that since accused Neeraj Khatri was having familiar terms with A­2 S. Vaikundarajan, in the hour of exigency, for the purposes of admission of his son he (A­1) took financial assistance from A­2. Support to establish this fact is sought from PW­19 K. Chitra, who stated that A­2 runs two engineering colleges in the name of his father and also provides "donation". Similar assertion is also made by A­2 Sh. S. Vaikundarajan who during his statement u/s 313 Cr.P.C and 315 Cr.P.C made a claim of helping students by way of donations. It is also argued that in the present case A­1 who was known to A­2 and was local guardian of son of A­1 was provided help by way of Demand Draft, which was also accounted duly. It is also stressed that since the DD was accounted, it cannot be interpreted as bribe.

265. At the threshold, it is to be noted that in the very first instance the payment of Demand Draft was incorporated/mentioned under the head 'donation' in the accounts maintained by A­4, which fact is admitted and is also stated by A­2 Sh. S. Vaikundarajan in his defence evidence. Furhter, it is also stated by prosecution witnesses through PW­5 Sh.

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Sathiyanantha Subramanian, CA who had deposed for M/s Vairavanathan & Company, which firm was responsible for maintaining the accounts of A­4 M/s. V.V. Mineral and who exhibited on record the ITR of A­4 M/s. V.V.Minerals for the assessment year 2013­2014 which he exhibited as Ex.PW5/2 alongwith the certified copy of 'profit and loss' was exhibited as Ex.PW5/3 and the true copy of the balance sheet dated 31.03.2013 was exhibited as Ex.PW5/4 and statement of depreciation Ex.PW5/5 that under these records the amount of Rs. 4,15,000/­ was shown to have been paid as 'Donation'.

266. He affirmed that Ex.PW5/3 (profit and loss statement showed an entry of amount of Rs. 43,73,000/­ as donation which was marked at point A, and this amount also included the amount of Rs. 4,15,000/­ dated 05.07.2012 paid for demand draft Ex.PW15/B.

267. This fact qua the entry of amount paid as Demand Draft being maintained as 'Donation' was again strengthened by PW­19 Smt. K. Chitra who worked as Accounts Manager of A­4 M/s. V.V. Minerals from October, 2010 till October, 2018. This witness also admitted the photocopy of Demand Draft of Rs. 4,15,000/­ dated 03.07.2012 which she herself handed over to CBI along with her letter Ex.PW19/D. She was also shown the ledger accounts of M/s. V.V. Minerals of 2012­13 pertaining to head 'donation' w.e.f. 01.04.2012 to 31.03.2012. (this record has already been exhibited as Ex.PW5/A) and on seeing the same she admitted that the endorsement made in the ledger was made by the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 111 of 264 Accountant under her directions and that there was a cash entry dated 05.07.2012 of amount of Rs. 4,15,0000/­ pertaining to "MOEF Officer, Chennai payments" which was marked "X to X­1" and was shown as 'Donation'.

268. The aforesaid amount of Rs. 4,15,000/­ was shown towards 'Donation' is again established by PW­22 Smt. Nandini R. Nair, Dy. Director (Investigation), Income Tax Department, Unit­II(1) Chennai who was shown her reply along with documents in response to notice u/s 91 Cr.P.C. sent by CBI pertaining to the case of A­4 M/s. V.V. Minerals. In response she stated that ITR for assessment year 2012­2013 was Annexure­1 which she exhibited as Ex.PW22/A. The ITR was the same as was exhibited by PW­5 Sh. Sathiyanantha Subramanian and was exhibited as Ex.PW5/2. The audit report Ex.PW5/1 was also affirmed as Annexure­II in form no. 3CB and Annexure­III was the income, profit and loss account and balance sheet which was the same as was exhibited by PW­5 as Ex.PW5/3. She affirmed that in Annexure ­III i.e. profit and loss statement of donation of Rs. 43,73,000/­ have been shown to have been paid, however, it was disallowed and was then added back to business income and offered to tax. It is pertinent to observe that Ex.PW5/3 which reveals the total donation having been paid for assessment year 2013­2014 as Rs. 43,73,000/­ precisely, also contained the amount of Rs. 4,15,000/­ as amount paid to officer of MOEF.

269. The statement of PW­25 and PW­24 with statement of PW­19 R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 112 of 264 explicitly shows that the entry of the amount of Rs. 4.15 lac was made under the head 'donation' on the direction of A­2 who wrote on Ex.PW19/C in Tamil "Koduttu Vittu Donation Kanakkil Eluthavum"

which means "Pls Pay and book under the head of Donation". Thus, showing that A­2 was fully aware of the entering this amount in the accounts of A­4 as Donation and at no stage the contrary knowledge and/or intention to show these amounts as loan is shown form the accounts of M/s. V.V. Minerals. It is hence not shown from these accounts that A­4 accounted the payment of Rs. 4,15,000/­ paid to A­1 as 'loan' which is now being claimed.

270. From the aforesaid, the only interpretation capable of being drawn from the entire evidence is that amount of Rs. 4,15,000/­, paid by way of Demand Draft, towards securing provisional admission to Sidharth Khatri, son of Neeraj Khatri was paid from the accounts of A­4 M/s. V.V. Minerals at the instance of A­2 S. Vaikundarajan who purported the transaction, to be made under the head of 'Donation' for which the instructions were passed to PW­19 Smt. K. Chitra under whose direction PW­24 made necessary entry in ledger and the said fact was corroborated through handwriting of A­2 S. Vaikundarajan on the yellow colour cash voucher slip Ex.PW19/B against repayment of the aforesaid was reimbursed to PW­25 Sh. S. Raja.

The amounts entered in account of A­4 against cash entry

271. Another significant fact shown from accounts of A­4, which goes R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 113 of 264 contrary to the statement of A­2 to show that DD was meant as loan, is that none of the accounts of A­4 or A­2 show any record of the DD Ex.PW15/B. The accounts Ex.PW5/1, Ex.PW5/2 and Ex.PW5/3 are not showing any entry towards the payment to MoEF officer Neeraj Khatri by Demand Draft Ex.PW15/B. The payment is rather shown in the ledger of A­4 in cash. The fact that payment was made in cash and all entries at the respective places were also carried out showing cash entry is visible from the statements of PW­19, PW­18, PW­24 and PW­25

272. As per the statement of PW­19 Accountant also the amounts are shown against cash entry on 05.07.2012. The statement of PW­19 Smt. K. Chitra, (A/C Manager of A­4) is very crucial to gather the correct understanding of the transaction, as being in­house, CA she was responsible for maintaining the accounts of A­4.

273. The aforesaid evidence is in fact in clear departure to the averment that the amount of Rs. 4,15,000/­ was paid towards 'Demand Draft' which is cited t have been paid as 'loan'. No payment having being made by either A­2 or A­4 is shown by Demand Draft (as is specifically stated by PW­19 Smt. K. Chitra) in following words:

"that there is a cash entry dated 05.07.2012 of amount of Rs. 4,15,000/­ pertaining to MoEF Officer, Chennai payment which is now mark X to X1."

274. She admitted the cash payment voucher dated 05.07.2012 for amount of Rs. 4,15,000/­ which was exhibited as Ex.PW19/B. The cash R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 114 of 264 entry voucher preceded inter office communication Ex.PW19/C made by PW­25 Sh. S. Raja, who was Branch Head of Chennai on one hand and Sh. S. Vaikundarajan, Managing Partner on the other. She identified the signatures of both Sh. S. Raja and Sh. Vaikundrajan at points A and B respectively. In written endorsement on the said communication which was in Tamil language in handwriting of A­2 himself and was read over by her and was reproduced in English revealed as "Pls Pay and book under the heading of Donation".

275. The witness clearly stated that the endorsement made in the heading 'Donation' comprised this amount in the ledger maintained w.e.f. 01.04.2012 to 31.03.2013. She admitted that the entry was made by Accountant PW­17 N. Selvam on her directions and that there was a cash entry on 05.07.2012 of amount of Rs. 4,15,000/­ pertaining to 'MOEF Officer Chennai payment' which was marked 'X' to 'X1'. Admittedly this entry was in compliance of instructions of S. Vaikunarajan in capacity of Managing partner of A­4.

276. The aforesaid was also established by PW­24 Sh. S. Arunachalam, Asst. Manager who was working with A­4 since 2006 and had joined as clerk but had risen on ranks and was Asst. Manager, Accounts in 2011. He affirmed Ex.PW19/C, the office communication dated 03.07.2012 written by Sh. S. Raja, Manager of Chennai Branch of A­4 to S. Vaikundarajan, Managing Partner of A­4, for the purposes of reimbursement of cash amount of Rs. 4,15,000/­. He also exhibited as R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 115 of 264 Ex.PW24/C the ledger at his end in which he had made the entry of Rs. 4,15,000/­ as "Donation". The reimbursement to PW­25 of this amount (which he had paid to PW­18) was made by PW­24 who routed the payment in cash through driver of the Company which conduct itself explained, that full regard, was being maintained to avoid any form of actual accounting of this payment duly which was used in making the Demand Draft.

277. PW­24 on basis of Ex.PW19/B and Ex.PW19/C on which he translated the endorsement made by A­2 Sh. S. Vaikundarajan at point "X" in Tamil which revealed "sent the amount, accounting in Donation account", affirmed that he intended to enter this amount under the head of "Donation" ledger, for the year 2012­13 against the cash entry dated 05.07.2012 which read "pertaining to Donation of MoEF Officer, Chennai payment mark "X" which entry he exhibited as Ex.PW24/A. He further affirmed that he made entry on the directions of Smt. K. Chitra (CA) (PW­19) and the total donations shown for the assessment year 2013­14 for Rs. 43,73,000/­ also included the amount of Rs. 4,15,000/­ as mentioned by him above.

278. The witness exhibited the yellow colour cash payment voucher of 05.07.2012 (already exhibited PW19/B) on which he identified the writing of PW­19 Ms. K. Chitra and signatures of S. Vaikundarajan.

279. Another witness who affirmed and corroborated the aforesaid R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 116 of 264 statement was PW­25 Sh. S. Raja who was an old hand of the company having joined M/s. V. V. Minerals (A­4) as clerk in the year 1996 and being promoted as Manager in 1998. The witness was looking after pending legal matters and procurement of material etc. for the company in District Tirunveli, Tamil Nadu.

280. He admitted the Demand Draft Ex.PW15/B for amount of Rs. 4,13,000/­ for admission of one of the officers from Delhi. Pursuant to the directions of A­2 he gave, amount of Rs. 4,15,000/­ in cash, as generally an amount of Rs. 5 lakhs remained with him as imprest for purchasing material for the company. He gave this amount to PW­18 P. Sreenivasan, to prepare the Demand Draft in favour of the VIT University, Vellore.

281. He also affirmed that he had written inter office communication dated 03.07.2012 (already exhibited Ex.PW19/C) for reimbursement of Rs. 4,15,000/­ to A­2 Sh. S. Vaikundarajan, Managing partner of A­4 as amounts were spent from imprest of the company. Thus, there is no evidence available on record or pointed out by ld.defence counsels to show that infact the DD Ex.PW15/B was accounted in the books of A­4 or in the accounts of A­2.

The D/D was got made from the personal account of employee of A­4

282. The statements of PW­24 Sh. S. Arunachalam, Assistant Manager and PW­25 S. Raja, Manager of Chennai Branch, statement of PW­18 P. R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 117 of 264 Shrinivasan employee of M/s V.V. Minerals offers significant glimpse of the process adopted for preparation of demand draft Ex.PW15/B.

283. PW­18 Sh. P. Sreenivasan offered disclosure of some interesting facts and explained that while he was working as Office Asst. in M/s. V.V. Minerals in the year 2012 with Sh. S. Raja (PW­25) being the Manager of the Company and was posted at Chennai Office at Branch dealing with liasoning work and Marketing etc, he by deposit slip dated 03.07.2012 (which was Ex.PW18/A) which was filled by him on asking of PW­25 Sh. Raja, deposited the amount of Rs. 4,15,000/­ in cash, in his own account at Federal Bank which Account no. was then stated as 74068. The self filled deposit slip of this witness was exhibited as Ex.PW18/A which accompanied the cash which did not belong to him but was handed over to him by PW­25 Sh. S. Raja.

284. The demand draft was got made against application slip Ex.PW18/C dated 03.07.2012 by PW­18 P. Sreenivasan which also was filled under his hand, witness admitted that the application was for obtaining Demand Draft in favour of VIT University, Vellore. He admitted that the cheque through which Demand Draft was procured from bank was his personal cheque of account no. 74068 of Federal Bank which he had issued under his own hand and was dated 03.07.2012 for total amount of Rs. 4,14,161/­ in favour of "yourself" which he exhibited as Ex.PW18/D. It was explained that the aforesaid cheque along with the application for Demand Draft was made over to R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 118 of 264 Federal Bank for preparation of Demand Draft. The Demand Draft which was got made by him was admitted as the same which was exhibited as Ex.PW15/B.

285. What transpires from the reading of his statement is that the witness was provided with cash by PW­25 Sh. S. Raja, the Manager of Chennai Branch Office of A­4 which amount he deposited along with the application form Ex.PW18/E where after he issued his own cheque and drew the application for opening the Demand Draft and got prepared the Demand Draft Ex.PW15/B which was paid to VIT University, Vellore for securing provisional admission of son of A­1 Sh. Neerraj Khatri. It is worthwhile to observe that there is no cross­examination of PW­18 on this aspect.

286. Thus what was made available on record showed that the amount of Rs. 4,15,000/­ the corpus behind Demand Draft Ex.PW15/B did not go directly from the account of either A­2 S. Vaikundarajan or A­4 M/s. V. V. Minerals. The amount which is claimed to have been paid as loan by A­2 did not go directly from the account of A­2 S. Vaikundarajan who stated his personal ties and his running two engineering colleges and helping nature for students as the reason behind this payment or directly even from the account of A­4 M/s. V. V. Minerals rather it was got made from the account of an employee of the rank of office assistant who was provided with cash to put in his account and draw a DD through his personal application.

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287. PW­18 got the Demand Draft made from his account which was then handed over to PW­25 Sh. S. Raja, who then handed over the Demand Draft personally in the hands of Sh. Neeraj Khatri outside Chennai Office of the company (which is fact also admitted by Neeraj Khatri in his Statement of Accused) and made an application for reimbursement through inter office communication Ex. PW19/C which was approved by A­2 with the directions that the cash payment be reimbursed and be shown as "Donations".

288. The aforesaid facts also show that all efforts were directed towards concealment of the preparation of DD which was used for the payment, rather than account for it or show it which is evident from the conduct in preparation of the Demand Draft as even the cash amount was not deposited in any of the accounts pertaining to S. Vaikunarajan or M/s. V. V. Minerals but in account no.74068 of Federal Bank, which was the personal account of (PW18) Sh. P. Sreenivasan, an employee.

289. Thus, the record did not show any payment having been made towards loan, rather what became apparent on records through the deposition of the above witness and their exhibiting the record of the entries which were kept in due course of business and are admissible evidence u/s 34 Evidence Act, (reliance for which is bring placed on CBI vs. V.C. Shukla (1998) 3 SCC 410, for neither their production on record nor reliance is objected rather their authenticity is established by A­2 himself in his statement u/s 313 and 315 Cr.P.C. specifically) that there is no evidence that this amount to Neeraj Khatri was either R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 120 of 264 provided by DD and/or as loan. It is further shown that consequent to the aforesaid (PW­19) Smt. K. Chitra directed PW­24 S. Arunachalam to write the aforesaid payment in ledger against "Donations" which then formed part of the profit and loss account Ex.PW5/3 and was submitted along with ITR for assessment year 2013­14 Ex.PW5/2.

290. The aforesaid statement in conjunction with the statement of PW­ 19 Smt. K. Chitra showing that the amount of Rs. 4,15,000/­ were maintained in account books against cash entry does not strengthen the averment that the amount was paid by DD and were accounted for to show that it was paid as loan. Rather the necessary interpretation available from facts is that all efforts were made to keep the preparation of DD and its payment concealed due to which the process of getting the DD made from account of A­4 was avoided and rather cash was provided to an employee of the rank of "office assistant" to put in his personal account and draw a DD through his personal application.

Return of the amount, whether admitted by prosecution witnesses

291. Ld. Sh. Ajit Singh has made submissions that since the prosecution witnesses have themselves admitted that the D/D was returned by A­1 it leads to necessary interpretation and implication that the amount provided by way of D/D was towards loan, which fact does not call for other proof. He also stated that PW­19, PW­5 and PW­18 admitted that this amount was returned back by A­1 to A­2 in the light of which prosecution has no case to allege that the D/D was paid as undue favour R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 121 of 264 or bribe. In view of his submissions, lets glance over the relevant statements.

292. PW­5 Sh. Sathiyanantha Subramanian is CA/Auditor of A­4 M/s. V. V. Minerals. In cross examination he stated that the amount of Rs.4,15,000/­ was returned by officer of MoEF & CC in subsequent year, however, he did not communicate this fact to CBI as it was not asked from him. While this witness elaborated from record in form of ITR Ex.PW5/2 the profit and loss account Ex.PW5/3 the balance sheet Ex.PW5/4 and profit and loss statement Ex.PW5/3 as how entries pointed out to the amount of Rs. 4,15,000/­ having been made as part of "donation", he did not state or even whispered about the return by A­1 of the amount during his examination in chief in the subsequent year nor did he state anything about the mode and manner of acquisition of this knowledge. The statement made by him is scatchy and does not provide any detail about the date, month of return and or its finding any entry having been made at the instance of PW­5 in accounts of A­4.

293. Even if it is assumed that he did not get an opportunity to explain about the return of the amount as he claims that CBI did not ask the same, it is unexplained that if at all any such repayment was made and the said was a fact in his knowledge what prevented him from telling it on his own to either CBI during investigation while his statement u/s 161 was recorded (since by DW­1 it is stated that amount was repaid on 01.10.2013 and RC in this case is registered in 2016) or even by volunteering before the court in his examination in chief which R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 122 of 264 otherwise was the best opportunity to tell correct facts, that the amounts have been returned. In the normal course of behavior the said fact should have been his first statement which he ought to have made as expected in natural course of behaviour. That this is an 'extracted' response is apparent from the language employed through a closed ended question during cross examination to which he stated that the payment had been returned in subsequent year. He did not bring or show any ledger or other accounts of A­4 which could show that the payments were returned. At this stage, I also propose to deal with the submission that IO did not deliberately collect the ITRs of subsequent years and that accused is framed by him in this false prosecution, as no reason is pointed out by A­1 to not file his own ITR of the relevant years. Even, A­2 did not file his own ITR of relevant years to show receipt at any stage despite opportunity to lead defence evidence to set the facts straight. It is not suggested that why the IO would want to involve accused persons in a false case without any reason. No such material is even placed to suggest that IO has falsely on her own account implicated accused while the case is investigated by the three officers at different stages. It is also worthwhile to note that admittedly A­2 claimed to have received the amount of Rs.5 lac on 01.10.2013 in cash from A­1 in return of Rs.4,15,000/­ paid to A­1. This return is stated to be made in personal capacity. Hence, the fact of repayment could have been shown and established only from ITR of A­1 and A­2 and not from ITR of the company, which did not receive any amount. Hence, no useful purpose is shown or established by accused for collecting no ITR of company for R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 123 of 264 subsequent years.

294. Similarly, reliance is placed on statement of PW­18 Sh. P. Sreenivasan (who had detailed as how the Demand Draft was procured from his personal account through S. Raja by depositing cash), a closed ended suggestive question in following words was put to him :­ "that the Demand Draft amount of Rs. 4,13,000/­ which was deposited in VIT Vellore was on behalf of A­1 Neeral Khatri on loan basis", to which, he replied as "Yes". He was then inquired about the return of the amount of Rs. 4,13,000/­ by Neeraj Khatri (A­1) in the year 2014­15 to which he again replied 'yes it was returned'. Again, no expression of any return of payment finds its place in his examination in chief or his statement rendered u/s 161 during investigation before the cross examination. Witness found no opportunity to reveal the fact of return of the amount of Rs. 4,13,000/­ at any time prior to the cross examination which again is completely bereft of any of the material detail, through which the witness acquired the knowledge not only of return but also that the amount of Rs. 4,13,000/­ for which he had got the Demand Draft made was indeed meant for handing over to A­1 Neeraj Khatri as the Demand Draft which infact was actually made in name of VIT University, Vellore and did not mention either the name of Sh. Neeraj Khatri (A­1) or his son Sidharth Khatri. How the witness gained knowledge that the Demand Draft was for Neeraj Khatri, how he came to know who Neeraj Khatri was and/or any occasion when he could have either met or interacted with Neeraj Khatri (A­1) or gained access to any information including the date, time and place of return of the amount is also not R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 124 of 264 stated.

295. Similar observations are requisited to be made qua PW­19 Smt. K. Chitra. The aforesaid preposition also needs to be extended qua the cross examination of PW­19 Smt. K. Chitra where she was subjected to again a suggestive question that the amount of Rs. 4,15,000/­ was mentioned / endorsed due to 'oversight' of S. Vaikundarajan as donation to which she answered as "yes, it is correct" and further stated as it to be correct, that the amount of Rs. 4,15,000/­ was returned by A­1 in cash to Mr. S. Vaikundarajan in Oct, 2013.

296. The statement of Smt. K. Chitra that the amounts were returned in the month of Oct, 2013 is in juxtaposition to the statement of other witnesses especially PW­18 P. Sreenivasan who claimed that the amounts were returned in 2014­2015.

297. From the aforementioned statements, the question emerges is as to whether these witnesses infact have made any admission qua the DD amount having been returned, whereafter it was no more required to be proved by accused? In order to gather such an assertion, the statements to aforesaid facts were to be shown to be subscribing to the rule of Best Evidence.

298. The rule of Best evidence through oral statements has been subject matter of discussion in Kalyan Kumar Gogai Vs. Ashutosh Kumar and Anr. [AIR (2011) SC 760] wherein, the observations are made in following words:

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 125 of 264

" The idea of best evidence is implicit in the Evidence Act. Evidence under the Act, consists of statements made by a witness or contained in a document. If it is a case of oral evidence, the Act requires that only that person who has actually perceived something by that sense, by which it is capable of perception, should make the statement about it and no one else. If it is documentary evidence, the Evidence Act requires that ordinarily the original should be produced, because a copy may contain omissions or mistakes of a deliberate or accidental nature."

299. Hence, in this background, the best evidence through which defence could have proved the return of the amount could only have been made by either by A­1 or by A­2 themselves, as none of the witnesses who made the statement of return were shown to be capable of making such statement. As already observed, none of witnesses have stated that amounts were returned or taken in their presence as loan nor they showed any source of acquiring any such knowledge. The irrelevance of statement of PW5 qua this piece is also noted above as the amounts are nowhere returned to company and/or accused as seen. Similarly, neither PW19 nor PW18 have made any statement of having witnessed the return personally.

300. While it is also to be mentioned that the fact of return of payment must have been stated by the person who discharged the liability. Further, A­1 who claimed to have taken the loan did not come forward to make his own statement which is mandated by law and is again asserted in "Tulsi and Others vs. Chandrika Prasad and Ors." (2006) 8 SCC 322 in following words :

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"C. Evidence Act, 1872 - S. 103 - Need for parties to examine themselves - when arises - Appellant 1 averring that certain amount not tendered to either her or her husband - Need for appellant to have examined herself"

26. In Sardar Gurbaksh Sing v. Gurdial Singh the Privy Council emphasised the need of examination of the parties as witnesses. (See also Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh and Sudhir Ranjan Paul v. Chatter Singh Baid."

301. The effort to extract a similar reply during cross­examination met with resistance by S. Raja (PW­25) who stated that he was not aware that amount of Rs.4,13,000/­ was repaid by Neeraj Khatri. However, he improved this statement and stated that after two years the amount of Rs. 5 lakhs was returned in cash to S. Vaikundarajan which infact is in conflict to statement of A­2 himself, who claimed it to have been returned to him in October 2015. PW­25 further affirmed that he was not present when the amount of Rs. 5 lakhs was handed over and had no knowledge whether the amount is paid on demand of company. He never contacted Neeraj Khatri for refund of the aforesaid amount for which the Demand Draft was prepared and that Smt. Subbulakshmi never informed him that amount of Rs. 4,15,000/­ will be returned by the Officer.

302. The established facts of the present case have till now here shown that entries carrying the amount of Rs. 4.15 lac are made in all relevant accounts / ledger in from of cash entry and are of donation. These accounts have been shown in ITR of assessment year 2013­14 which in fact is a public document and declaration. Any deviation, alteration, R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 127 of 264 amendment, rectification in this document is capable only through a documentary evidence in terms of provisions of S. 91/92 Evidence Act. No measure of oral evidence contradicting these statements can be termed sufficient or best evidence.

303. The law is again cristalised in Roop Kumar Vs. Mohan Thedani (2003) 6 SCC 595 as below :

"Concept of jural act of "integration into a single memorial"

employed - Ss. 91 and 92 based on the recognition of the jural act of integration in the case of written instruments - Applies even to a third party seeking to establish a contract."

"S.91 - Nature and scope - Incorporation of rule of "best evidence" ­ In reality declares a doctrine of substantive law, namely, that in the case of a written contract all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it."

304. It is argued by ld. Sh. Ajit Singh that since the statements are part of cross­examination, they tentamount to admission. No doubt the cross examination is the best way to shake the credibility of prosecution case and credibility of witness. However not all statement of facts stated during cross examination tantamount to admission specially where they need corroboration. As is held in V.C.Shukla (supra), since these inculpatory statements are not made by accused themselves they fall short as being read as admissions since a statement made by a third party to the transaction did not possess any such capacity to make an admission of a transaction not even seen by him/them and furthermore, the facts stated by them do not bind them in given circumstance. It is R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 128 of 264 simultaneously to be borne in mind that these witnesses are employees of A­4 and accountable to A­2 who is the Managing Partner and thus their statements are to be viewed with caution and calls for corroboration.

305. While the attempt was made to extract the statement of return of amount, so that it could be shown as a loan, the defence forgot that the alleged loan was a transaction stated between A­1 Sh. Neeraj Khatri and A­2 S. Vaikundarajan out of personal proximity and not between A­1 Neeraj Khatri and A­4 M/s. V. V. Minerals, qua which the company must not have had any connection/relation or role in the first place. How these witnesses who were employed by A­4 for keeping record of company were capable of making the statement of an alleged personal transaction by its Managing Partner and his friend in his personal capacity and to be treated as reliable in such context is unexplained, which also fails to substantiate the submission that - firstly, the amount is to be treated as loan as it is returned, secondly, the fact of returning the amount is also not required to be proved through defence witnesses as it stays admitted in cross­examination of the prosecution witnesses, hence, both the arguments did not lend any credence to the defence theory.

Accounting of amount as "donation" inadvertence.

306. Another submission raised by A­2 and A­4 in order to buttress their theory that DD with face value of Rs.4,13,000/­ was loan, albeit shown in account as donation is that mentioning of this amount as donation was R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 129 of 264 due to inadvertence. While it was sought to be drawn from PW­19 Smt. K. Chitra that the amount of Rs. 4,15,000/­was cited as donation by A­2 S. Vaikundarajan on account of oversight, it was not explained by the witness as how she received this information that the said mention of donation was oversight,as there was no supporting material to give credence to this claim. Nowhere, it was shown as when and under what circumstances PW19 was informed of this entry of donation as inadvertence. Infact, all the supporting documents especially Ex. PW19/B and Ex.PW19/C which documents are proved by her only, show all intention to enter this payment as donation, for which she had received clear directions from A­2 and at her instance, even PW­24 entered this payment as donation.

307. Even, A­2 in order to justify the transaction relied on this amount and stated that the transaction was reflected in account books. Though, in oral statement he mentioned it as loan, the documents relied upon by him, which also were part of Ex.DW1/A i.e. the notice of Income Tax Authority, also showed this as donation. Infact, he himself admitted that in the relevant account book the entry was of donation and not loan and in order to overcome this entry, which had already been made part of record, it was claimed to have been made out of inadvertence.

308. At this stage, at the cost of repetition, it is observed that nowhere in the evidence the amount was shown either paid from accounts of A­4 or A­2 and/or any entry is shown or exhibited towards loan. This theory of loan is subsequently created and suddenly support is sought to be drawn R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 130 of 264 from the fact of rejection of the entry of Rs.43,73,000/­ by Income Tax, which was based on other reasons. A­2 S. Vaikundarajan.

309. No material is cited by A­2 that when and how he realized his inadvertence, in showing an entry of loan as donation qua which he made no further elaboration. While trying to establish a ground for inadvertence, he claimed that factum of this amount being shown towards donation came to his knowledge during the course of Income Tax proceedings, at which stage, he also claims to have carried the correction.

310. At this stage also, it be also noted that the Income Tax proceedings which are part of Ex.DW1/A are apparently qua the company transactions and any attempt for its correction cannot be co­related to an admitted personal transaction. It is also to be doubted that the auditor's certificate which also fains to show to whom it is issued, could have been made part of Ex.DW1/A and tendered and marked as such.

311. No record in his personal capacity is brought by A­2 to show the repayment/return of Rs.5 lacs as he claimed to have received it with interest. How the modification of stand adopted by company in first claiming the amounts (total amount of Rs.43,70,000/­) as donation and then offering it to tax on account of assessment notice being issued by Income Tax Authority for avoiding tax payment and too many cash entries being maintained against the company can help in changing the nature of transaction of payment is beyond any comprehension least any interpretation as "inadvertence".

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312. In order to stress the correction, he relied and exhibited document Ex.DW1/A which also comprised a certificate dated 01.09.2017 of the auditor of A­4 and admission of the fact shows that A­4 was involved in the transaction. Further, the transaction of Rs. 4.15,000/­should be treated as personal transaction is also the case of A­2 himself (as he stated to have received this amount of Rs.5 lac in return of Rs.4.15. lac alongwith interest). Furthermore, the auditor's the certificate is made only on 01.09.2017 and is an internal document prepared by auditor of A­4, and also fails to mention any requisite material details which are cleverly omitted from the certificate, nonetheless, it is reproduced below to bring home the admission qua the transaction:

"Dated : 01/09/2017 Auditor certificate This is to certify the following transactions were recorded in the books of M/s V.V. Mineral, having its office at No.: 17C, Keeraikaranthattu,Tisayanvillai­627657.

     Transaction            Amount Accounted Remarks
                                   in
     Cash paid to Mr. 4,15,000 Donation              Since the payment is not
     Raja, towards "MoEF                             a business expenditure,
     officer,     Chennai                            this was booked in
     Payment"         on                             donation ledger and
     05.07.2012                                      subsequently disallowed
                                                     when computing the
                                                     Income Tax.
     Cash returned along 5,00,000        SVR         Cash returned by the
     with interest to the              drawings      Manging Partner to the
     Managing      Partner                           Firm was given effect to
     Mr. S. Vaikundarajan                            his capital account.
     on 01.10.2013




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313. It is to be observed that despite A­2 getting an opportunity to narrate the details of returning the amount to company (in his DE), A­2 failed to clearly state the same. It is unexplained that why the auditor's certificate which is being of date of 2017 did not mention the date of payment of amount of Rs.4,15,000/­ to company. The certificate is made apparently after five years of transaction while the accused were facing trial in Court.

314. Further, it is not explained that why no document of internal nature or external declaration was filed as revised ITR as the best way to correct this error and that, why the inadvertence was not sought to be corrected even at the stage when the 'Donation' amount of Rs. 43,70,000/­ was refused by I.T. authorities and he was called as per his documents by notice to explain the expenses under various heads. Even thereafter this error was not rectified and the entire amount of Rs. 43,73,000/­ including the amount in question was offered for tax and company M/s V.V. Minerals paid the said tax after order dated 27.12.2016 (i.e. the company was made to pay tax on profit of Managing Partner who received Rs.85,000/­ as interest against claimed personal lending of Rs.4,15,000/­. Had the company received the payment as is claimed no such liability qua tax would have been offered or least paid by the company. This observation also needs to be read in conjunction with the conduct of A­2 whereby no attempt is made to correct this oversight in the accounts of the relevant period as A­2 himself wrote in his handwriting on inter office communication R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 133 of 264 Ex.PW19/C for reimbursement to PW­25 S. Raja or even PW­19 Smt. K. Chitra (Accounted) herself did not seek any correction on learning qua this alleged oversight.

315. The auditor's certificate tendered collectively with Ex.DW1/A is a contrary piece of evidence and shows how the accounts of A­4 and A­2 are merged, mingled and manged. It is also showed that the true and correct practice of keeping the record with its integrity and sanctity is lacking and the account are open to infringements and in interruptions which hence makes the tendering of auditor's certificate Ex.DW1/A unreliable.

Reasons of extension of loan due to personal proximity between A­1 & A­2 not controverted u/s 313 Cr.P.C.

316. Another submission finding place during arguments of ld. Counsel for A­1 and in additional submissions of A­1 and A­2 & A­4 to claim that amount of D/D with face value of Rs.4,13,000/­ was a loan is that there is no denial to statement of A­2 who appeared as DW1 that he was he local guardian of Sidharth Khatri which fact for want of doubt/cross­ examination is to be treated as admitted and hence show that in this background any amount given to A­1 was a loan. He also claimed that since prosecution did not put any question to A­1 u/s 313 Cr.P.C. on this aspect, the charge of bribe is not to be sustained. Reliance is made upon Samsul Haque vs. The State of Assam [(Crl. A. No. 1905/2009) (DoD 26.08.2019)] and Latu Mahto & Anr Vs. The State of Bihar, Criminal Appeal No. 923 of 2008 (DoD 16.05.2008).

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317. It is pertinent to observe that while it was argued by ld. Counsel for A­1 that A­1 (in order to explain the background of acquaintance) met A­2 through the brother of A­1, no effort was made to call the brother as witness, to corroborate this connection, which was significant piece of evidence, more so, when the defence doubted the statements of prosecution qua A­3 being the connect between the two.

318. While a clarity on this aspect was sought during final arguments, ld. Defence counsel argued that the onus was on prosecution through cross­examination and/or S A to disprove.

319. However to read this fact that the common connect of A­1 and A­2 was the brother of A­1 and not A­3, no witness was brought. A­1 did not call his brother who could establish the connect as his witness. He did not even name his brother as a connect in his own DE despite opportunity. A­2 who came in witness box also shied to provide any material of this nature to provide an opportunity to prosecution for cross­examination. It is pertinent to observe that as no prosecution witness made any such statement, there was no occasion for prosecution to frame any question based on this aspect for SA. The only reference to this fact was available in form of submission made during arguments of discharge / charge by A­1, and it was not stated that how the argument/averment raised at the stage of charge could be put to accused either in cross­examination or SA.

320. Ld. Counsel Sh. Harsh Sharma on behalf of A­2 stated that the fact R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 135 of 264 of A­2 being local guardian was not rebutted. It is claimed that this statement is to be interpreted in his favour. He made a general statement of helping students without specifically showing any connect to son of A­1. In this case, he did not state to have provided a favour to Sidharth Khatri, who applied for admission but on contrary he claimed to have helped Neeraj Khatri. He nowhere followed his statement of giving donation to desirable students and rather claimed to have extended loan. How in this case his helpful, generous nature came to be read in conjunction with facts is not stated clearly and are rather shown to exist in contrast to what is pleaded on record. Even the name of the brother was not stated along with any past reference to put this fact in perspective. It is again to be noted that no help is provided by A­2 personally but the payments are debited to the account of A­4. How M/s. V. V. Minerals become liable to his personal claim is again a contrasting fact which the defence has omitted to explain.

321. In the absence of any evidence being led, the reliance upon Samsul Haque and Latu Mahto (Supra) relied upon by the ld. counsels for accused persons is not applicable and in fact the law is contrary to what is sought to be argued as is evident from Latu Mahto (supra) as below :

"What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him".

322. On the basis of material, it is trite to say that there was no occasion R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 136 of 264 for prosecution to ask the above facts which were never made part of evidence by it, rather it is the claim of accused themselves which they were burdened to prove and which they failed to establish.

Demand of loan does not fall in definition of demand

323. Ld. Counsel for A­1 has vehemently argued and tried to interpret the definition of "Demand". It is stated that what accused has received, was a 'loan' and it cannot be termed 'bribe' as there was no authority behind the act of asking for it and hence it is to be interpreted as a 'request' for a favour.

324. In order to correctly understand the meaning of word 'demand', I draw support from The Law Lexicon Reprint Edition 1995, wherein the meaning of word 'demand' is explained as under :

"A claim or request made as of right; a legal obligation; a requisition of request to do a particular thing specified under a claim of right on the part of the person requesting; a thing or amound claimed to be due ; a calling for a thing due or claimed to be due. (Tomlin's Law Dict) Purchaser's call for a commodity (as, demand and supply in Economics)."

"DEMAND is a word of art, and in the understanding of the Common Law is of so large an extent as no other one word in the law is unless it be claim" (Co. Litt. 291 B.) "If a man release to another all manner of demands, this is the best release to him to whom the release is made, that he can have. (Litt. S. 508)"

"TO DEMAND REQUIRE, We demand that which is owning and out to be given; we require that which we wish and expect to have done. A demand is more positive than a requisition. The creditor makes a demand on the debtor; the master requires a certain portion of duty from his servant : it is unjust R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 137 of 264 to demand of a person that he has no right to give; it is unreasonable to require of him what it is not in his power to do."

325. The argument that the demand of bribe inherents an authority and demand of loan by way of favour does not command any such authority is a hypothetical argument without premise being shown from evidence and facts. However, in common understanding, Demand by virtue of its understanding in common parlance contains an element of assertion of right for its fulfillment from seeker whereas loan will be preceded with a meek request capable of its refusal whereas demand will be an assertion of prerogative held in seeker to compel from whom the demand is made qua its obligation for fulfillment. At this stage, I have borrowed the following definition of law from The Law Lexicon,which states as under:

"LOAN : As a noun, a lending; that which is lent; a permission to use; a bailement of an article for a certain time to be used by the borrower. "

326. However, this assertion which is mixed question of law and fact and can only be adjudged from the evidence which was required to be proved by defence since it was their own claim in defence. No witness in the first place is produced to show the tone or tenor and/or the exact words/language employed for communication of 'Demand' of loan. Even A­2 who deposed in support of the contents that demand draft was a loan transaction, did not state any date, month, time, place or explained the mode adopted in receiving the communication no where it was explained that such a request or communication was received personally or on phone.

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327. Nonetheless neither loan nor bribe could have been solicited in absence of demand. During arguments the fact that indeed the demand of DD Ex.PW15/B was made by A­1 was repeated albiet in reference of loan. It was clarified specifically that accused Neeraj Khatri demanded the DD from S. Vaikundarajan. It is then claimed that this demand cannot be read as bribe for want of any element of such nature.

Acceptance of demand draft by A­1 for payment to VIT University, Vellore

328. It is observed that the acceptance of amount of Rs. 4,15,000/­ by way of Demand Draft (Ex. PW15/B) having been paid for the admission fee of Sidharth Khatri, son of Sh. Neeraj Khatri (A­1) at VIT University, Vellore is an admitted fact, despite which it is strengthened further through the deposition of Sh. Varun Saigal, Advisor, Administration, VIT University, Vellore who was examined as PW­3. He exhibited the receipt of VIT University in the name of Sidharth Khatri for the year 2012 for an amount of Rs. 4,13,000/­ with the stamp of VIT University and under signature of Sh. Laxminarainan, Accounts Officer. The receipt was handed over to CBI during investigation which was exhibited during trial as Ex.PW3/C. This amount was received towards the provisional admission of the son of A­1 is also detailed by this witness who exhibited the provisional admission letter of Sidharth Khatri vide letter dated 04.07.2012 which was then exhibited by him as Ex.PW3/D, the bank details of VIT University were then exhibited whereas the amounts were shown received as Ex.PW3/E. R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 139 of 264

329. Coupled with above the fact that Demand Draft Ex.PW15/B was received by VIT University, Vellore was also proved by PW­17 N. Selvam who had brought the statement of account of VIT University with the official seal showing the entire amount of Rs. 1,26,85,355/­ (which was supported with Certificate u/s 65B (4) (C) of the Indian Evidence Act). There was no cross examination of these witnesses.

330. That the Demand Draft no.557534 for amount of Rs. 4,13,000/­ which was used for securing admission of Sidhart Khatri was issued from Federal Bank was proved by PW15 Sh. Amjith C John, Senior Manager (Legal), Federal Bank, New Delhi who had produced the relevant record. He had handed over the original Demand Draft bearing No. 557534 dated 03.07.2012 for Rs. 4,13,000/­ which he had exhibited as Ex.PW15/B. Absence of demand and non­applicability of presumption u/s 20 P.C. Act

331. Another argument which goes to the root of the facts for establishing the charge u/s 7 PC Act emerges from the submission that there is no evidence, either documentary or oral to support any demand of bribe and the prosecution has failed to establish the ingredients of Sec. 7 PC Act and for its want even the charge u/s 13(1)(d) PC Act cannot be termed to have been substantiated against the accused persons.

332. It is sought to be argued that none of the ingredients of Section '7 P.C.Act' are proved by prosecution, as there is no direct witness to the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 140 of 264 demand having been made by A­1 and since proving the factum of demand is sin qua non no case under the provisions of offences for which accused persons, have been charged, is made out.

333. Since the fact of obtainance and acceptance of DD remained admitted, in this backdrop presumption u/s 20 was to be drawn against the accused. Both the ld. counsels for A­1 and A­2 & A­4 have opposed this. Ld. Counsel Sh. Harsh Sharma, ld. Counsel for A­2 and A­4 has placed reliance on Sulen Singh vs State of Jharkhand, through CBI 2020 SCC OnLine Jhar 631 to support his averment. However, interestingly in this case also the plea of accused was that the amounts obtained were loan and not bribe and in view this statement of presumption against him was raised. It is in wake at of this presumption the defence evidence was led and discussed to arrive at conclusion. However, there was no doubt raised qua the applicability of Sec. 20 PC Act, which is sought to be raised here. Hence, the aforesaid law does not support the contention of Sh. Sharma.

334. Ld. counsels have infact not disputed the factum of demand but have questioned the attempt of prosecution to colour it as bribe. There is no dispute that the amount in question is received and accepted by A­1, which is admitted by both A­1 and A­2 in their respective Statements of Accused also which fact itself gives rise to presumption u/s 20 P.C. Act. The reliance by accused on sullen Singh (supra) rather shows that applicability of presumption u/s 20 PC Act is admitted by accused themselves, wherein, the similar observations is made in view of R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 141 of 264 acceptance of amount and recovery from accused. It is pertinent to observe that while no evidence is brought on record to show the actual demand, accused did not dispute that the factuam of acceptance of DD was searched out and discovered during investigation of a case registered by CBI against A­1. After this discovery from the account books of A­4 was made by IO, the acceptance of DD (Ex.PW15/B) was admitted. After it became pertinent for accused to show the true nature of these amounts so discovered to have been utilized by him. In arrived at above view, I draw support from the law laid down in H. Haumanha Rao vs. State of Andhra Pradesh AIR 1992 SC 1201 wherein, it is held "once the amount is found in possession of accused, the burden shifts on him to explain the circumstances to prove his innocence as contemplated under Sec.20 of P.C. Act."

335. No doubt that the presumption is rebuttable in nature and cannot be treated as proof against the accused, on which, I am in humble submissions with the law laid down in Sulen Singh (supra) and Punjab Rao vs. State of Maharashtra (2002) 10 SCC 371 at page 372, wherein, it is held:

"it is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability."

336. Similar observation is made in M. Abbas vs. State of Kerala (2001) R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 142 of 264 10 SCC 103 and also C.M.Girish Babu vs CBI, Cochin, High Court of Kerala (2009) 3 SCC 779, which are also relied upon by accused A­1, A­2 and A­4. As in the sum and substance of all the case law on which defence counsels themselves have relied, nowhere the applicability of Sec. 20 PC Act in the present like circumstances is disputed rather the law relied upon provide the guidelines qua probative value and lays down the test of preponderance of probability in juxta position to the test of beyond reasonable doubt put upon prosecution.

337. Interestingly, while opposing the applicability of Sec. 20 P.C. Act the accused made conscious effort to rebut the presumption itself by claiming that the accepted amount was a loan transaction. Vigorous attempt is made to show the transaction of DD as a loan transaction and for which vehement reliance is placed on various aspects, which I have already discussed in foregoing paragraphs.

338. Another attempt to rebut the presumption is made and it is argued that payment of DD is legitimate since it is accounted and the account entries are a proof of its legitimacy which are Ex.PW5/1 to Ex.PW5/4. I have already observed that all above entries talk of cash entries which are stated to having been paid by A­4 and not by A­2 and are accounted as donation.

339. Another submission targeted to argue against the presumption is made through Ex.DW1/B. It is stated that Ex.DW1/A is a proof of return of payment by A­1 and hence shows that the amount was a loan R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 143 of 264 transaction. The documents which are collectively tendered are comprising of the assessment order of M/s V.V. Minerals for Financial Year 2013­14 consequent to demand notice dated 27.12.2016 of Income Tax Authority. It is also appended with Certificate of Veeravanthan & Company, auditors of A­4 dated 01.09.2017.

340. However, the documents stated above are neither showing return of payment on alleged date of 01.10.2013 nor proving the return of the amount to the company. As per the certificate which is dated 01.09.2017 certifies that payment of Rs.5 lac is returned to A­2 and is shown as his personal drawing. Interestingly, these amounts have been shown in ITR of Company as donation in relevant year in which no amendment is sought. While the certificate is drawn by auditor on 01.09.2017 on which date the RC in present case has already been lodged. In foregoing paras, I have already commented upon the veracity of this certificate as well as the accounts of A­4 which are not required to be repeated here, however, it is needless to say that Ex.DW1/A has failed to inspire confidence to establish the transaction as loan.

No direct witness or document to prove demand

341. Another argument which is made to avert the challenge of prosecution is raised in form of contention that there is no direct witness to the factum of demand. It is argued that prosecution has neither rely nor through any documentary evidence proved any demand of money having been made by A­1.

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342. In order to assess this argument, I have to re­look at the evidence of PW25 Sh. S. Raja, which part of testimony is material. It is stated by PW25 S. Raja that he got the DD made on instruction of A­3 Subbulakshmi who called him on phone directly for this purpose. Subbulakshmi at the relevant time was working as "Liasoning Officer"

for A­4 on "contract basis". He deposed that Subbulakshmi was dealing with the MoEF and she was directly dealing with A­2 Sh. S.Vaikundarajan, Managing Partner of A­4. He was asked by A­3 Subbulakshmi for the aforesaid payment on which he contacted Mr. Vaikundarajan telephonically and sought his directions. After receiving the affirmation for preparation of the draft he gave the amount of Rs. 4,15,000/­ in cash to (PW­18) P.Sreenivasan for preparation of Demand Draft which draft he personally handed over to A­1 outside the Chennai Branch office.

343. The language of deposition of PW­25 S.Raja leaves no scope for ambiguity. It is clear that demand draft was asked. The accused Neeraj Khatri in place near to the office of Chennai office of A­4 took the draft directly in name of VIT University from PW25. While all through the defence lead the arguments that the DD was obtained as loan, none of the accused persons revealed as why despite having personal/ one to one relations, A­1 did not seek the loan directly from A­2, and why A­3 Subbulakshmi who was the Liasoning Officer of A­4 dealing with the MoEF & CC was put in place to communicate the demand for the preparation of Demand Draft for the benefit of A­1. It hence became R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 145 of 264 apparent that payment was never intended to be brought before or in the knowledge of any concerned. For the said purpose only the communication of demand found its way through A­3 and not through the direct source between A­1 and A­2, so did the payment, as it did not go from the account of A­2 but from the funds of A­4. The statement of PW25 to the above fact is not controverted. Even, in the statement of accused, she admitted that demand for the draft was communicated to PW25 by her. The narration of demand is in fact stated clearly by PW25, who was a crucial and material participant in the preparation of DD. It is also crucial that the factum of demand is documented in Ex.PW19/B and Ex.PW19/C, which are the internal documents of A­4 and are made upon directions and consent of A­2. Ex.PW19/B, which is a yellow coloured "cash payment voucher" to payee S. Raja (PW25), shows "Dr donation" (MoEF officer Chennai payment). This voucher is acknowledged and payment allowed by A­2 under "approved by MD". Further, Ex.PW19/C, which is inter­office communication on behalf of PW25 also reads "as per instructions of Ms. Subbulakshmi I have taken one DD in the name of VIT University payable at Vellore for Rs.4,13,000/­ for one MoEF officer Delhi officer", which is also approved with directions to put the same as donation by A­2 in Tamil".

344. The reliance upon judgment of Sharad Yadav vs. Union of India 1999 (41) DRJ, L.K. Advani vs. CBI 1997 (41) DRJ, Sujit Biswas Vs. State of Assam, (2013) 12 SCC 406 as well as on Subramaniam Swami vs. A. Raja (2012) 9 SCC 257, wherein it is held that even strong R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 146 of 264 suspicion cannot replace proof, is inconsequential and not applicable to the present case as the witnesses involved in preparation and handing over the demand draft have clearly and cogently stated mode of demand and payment since PW25 through PW18 had got the draft prepared and had also personally handed it over to A­1. This hence belies the argument raised by ld defence counsels that no witness involved in preparation of DD has witnessed the demand.

345. At this stage, I may also deal with the submission that whether absence of direct evidence to demand is fatal to the prosecution case and the prosecution must necessarily fail ?

346. Answering to the above argument, ld. Sr. PP brought before this Court the case law cited as State of Gujarat vs. Mansurbhai Motibhai Damor (1996) 3 GLR 620 and Hazarilal vs. Delhi Administration 1980 AIR 873. He averred that it is not requisite that in all cases direct evidence must be available. It is averred that the court may also consider circumstantial evidence produced to prove the allegation against the accused. No contrary case law is pointed out by the accused persons, who merely questioned its applicability. However, I find myself in humble submission with the law laid down and propose to reproduce the relevant para of judgment in Hazari Lal's (supra) as below:

"3. Under section 114 of the Evidence Act the Court may presume the existence of any fact which is likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. One of the illustrations to R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 147 of 264 this section is that the Court may presume that a person who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. So too in the facts and circumstances of the present case the Court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from the complainant who, a few minutes earlier, was shown to have been in possession of the notes. Once it is found that the accused had obtained the money from the complainant the presumption under section 4 (1) of the Prevention of Corruption Act is immediately attracted. The presumption is rebuttable, but in the present case there is no material to rebut the presumption. The accused was, therefore, rightly convicted by the courts below. [1061D­F]

347. The statement of PW­5 Sh. Sathiyanantha Subramanian that the payments towards DD was indeed shown as donation to officer of MoEF as well as the clear documented evidence under the ledger of A­4 under hand of PW24 Sh. S. Arunachalam wherein payment of Rs.4,13,000/­ was made on asking of A­1 through A­3 and was approved by A­2 under his hand and was directed to be paid from the accounts of A­4 are material circumstance supporting the statement of PW25 S. Raja and give credence to leading to an unbroken chain of circumstantial evidence. The following observation by Lordship's in Hazari Lal's (supra) pertaining to value of circumstantial evidence which gains pertinence and is relevance is detailed as below :

"................ It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from P.W.3. Under s.114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 148 of 264 the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. .............."

348. There is no rebuttal to the facts that the payment of D/D was not made from the amounts of A­4 (M/s V.V. Minerals). It is established that the D/D was got made by cash from imprest. It is clearly established that the cash was paid to PW18 Sh. P. Srinivasan who deposited it in his personal account at Federal Bank for getting D/D, which he got made on instructions of PW25 Sh. S. Raja who in turn was asked by A­3 Ms. Subbulakshi for payment which was approved by A­2, Managing Director and thus in records of A­4 it was shown as cash entry as "payment MoEF Officer". It is shown sufficiently that Ex.PW19/C and Ex.PW19/B both documents show that the amounts were given in form of DD for VIT University at the asking of A­1 which demand was communicated through A­3. In such circumstances, reliance upon C. Chenga Reddy & Ors. Vs. State of Andhra Pradesh (1996) 10 SCC 193 and Ramreddy Rajeshkhanna Reddy and Anr. Vs. State of Andhra Pradesh (2006) 10 SCC 172 is to be distinguished from the facts of the present case. As it shows that material is sufficient to show the presence of demand and subsequent obtainance.

No connect between A­1 and A­3 shown

349. Another connected argument raised by ld. Counsel is that prosecution has not shown any connect between A­1 and A­3. However, ld. counsels for A­1 and A­3 have contradicted each other.

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While Ms. Shwetima Dwivedi (ld. counsel for A­3) denied the very presence of A­3 in Delhi (in her written submissions), A­1, A­2 and A­4 admitted the same. The travel record produced by PW11 through Ex.PW11/2 also showed that she arrived in Delhi on 01.07.2012 and went back on 04.07.2012 by SpiceJet flight.

350. Ld. counsel for A­2 and A­4 as well as ld. counsel for A­1 in order to contradict the above that demand was communicated by Subulakshmi, argued that there is no evidence of any meeting between A­1 and A­3 in Delhi and mere presence of A­3 in Delhi does not tantamount to any demand and that there is no CDR etc. furnished by the prosecution to suggest any connect between A­1 and A­3 or to support the contention of communication of demand.

351. In this regard, I refer again to the statement of PW­25 S. Raja who affirmed that demand for draft in favour of VIT University was communicated by A­3. However, despite PW25 S. Raja clearly stating otherwise, he was subjected to any cross­examination on the aforesaid aspect and this fact remained proved that indeed it was A­3 Subbulakshmi who called S. Raja for preparation of the Demand Draft for the benefit of A­1 for securing provisional admission of his son Sidharth Khatri. There is no denial that Subbulakshmi was present in Delhi in pursuance of job assigned by A­4. What is being argued is to the effect that her mere presence does not lead to conclusion that she was in contact with the accused. However, it is for A­1 and A­3 to disclose that how in absence of any contact the requirement of A­1 for a Demand R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 150 of 264 Draft of Rs. 4,13,000/­ payable to VIT University, Vellore for admission of his son was conveyed to PW­25 S. Raja who complied with this demand.

352. Sh. Vijoy Roy (PW­9) and Sh. Balsubramaniyan (PW­11) are two other material witnesses in this connection. PW­9 had brought the travel record of A­1, his son and A­3. To show nexus between A­1 and A­3, statement of PW9 assumes significance. It is an uncontroverted testimony. PW9 has produced the details of PNR no. WFQ7CE (Ex.PW9/4) of proposed travel which was to be undertaken by A­1 collecting his son and A­3. It is a common PNR for A­1 and A­3. By this ticket, they proposed to travel to Chennai on 03.07.2012 together by common flight. (It is only subsequently that plan of A­3 was changed and she booked separate PNR (ticket) for Surat). For the absence of any nexus, and/or communication between A­1 and A­3, how a common ticket was booked is a question which can be answered by accused only.

353. In fact, the fact/evidence of communication between the two accused is also cemented by statement of PW11 who stated that the tickets were booked on instructions of A­3 Ms. Subbulakshmi and that, payment of return tickets for 05.07.2012 were paid by her and only she paid for the tickets, while A­1 and his son who undertook the return travel to Delhi made no payment. Even, PW11 is not cross­examined on the aspect of booking of ticket by A­3 for herself and for A­1 and his son. It hence was to be shown by defence that how without any R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 151 of 264 communication from A­1 she got the travel requirement for A­1 and his son and arranged for it from her travel agent having office at Chennai, which all facs establish cogent and reliable material to show connect between A­1 and A­3 and counters the argument that there is no evidence to establish the same.

354. The aforesaid discussion hence suggest that the air tickets from Delhi to Chennai were not arranged / purchased / paid by A­1 Neeraj Khatri, who, infact, as per PW10 even avoided to inform the fact of his travel and receipt of amount of Rs.4,13,000/­ by DD to his department. I also propose at this stage to deal with the submission of ld. Counsels of A­2 and A­4 that in view of the law laid down in Ashok Tehrsing Bhutia vs. State of Sikkim, (2011) 4 SCC 402, the non­information of such fact only tentamounts to a departmental irregularity and do not involve an element of mens rea. However, this aragument is misplaced in wake of the conjunct and entire reading of the prosecution evidence since all material witnesses have shown a a clear lack of intent on part of all accused to provide any information of the exchange of amount by DD and/or travel. The evidence in this regard produced by PW10 is material who collected all the requisited information from all departments including accounts, leave, protocol etc. to establish that nowhere any material revelation was made. The avoidance is not without cause as it became evident from the conduct of A­2 and A­4 also that even the mode of preparation of DD was kept clandestine. The fact that A­1 is a Scientist and being a government official obliged to divulge all details of R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 152 of 264 transactions and also travel as well as even the information of acquisition and spending is to be informed is fact which must be in his knowledge. The reason to not provide even a single information hence must be stated. No cause is shown least a justifiable one to commit such an omission which points out his intent to keep the entire transactions and the benefits hidden. On what premise this omission is capable of being read as mere irregularity must have been specifically pleaded by him and in absence of which no occasion is shown to read it as mere irregularity of the conduct which points towards the element of mens rea, incapable of distinct treatment and hence the reliance on Ashok Tehrsing Bhutia (supra) is mis­premised.

Ms. Subbulakshmi assigned the region of Gujarat and Andhra Pradesh

355. Another argument raised to plead disconnect of A­3 from A­1 was that A­3 was employed for environment clearance from government agencies outside Tamil Nadu etc. and was doing liasoning work only for the region of Gujarat and AP. However no material qua the aforesaid is submitted to suggest that her work was within the confine of regions outside Tamil Nadu and/or she was dealing with region of Gujarat and AP. The contract of employment for A­3 suggesting the domain, nature and profile of her work as well as the submission should have been placed to support and establish the above contention. However, it was avoided by both A­3 as well as by A­4.

356. While it remained admitted that she was doing liasoning work for R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 153 of 264 M/s. V. V. Minerals for obtaining environmental clearance from Government agencies. It was not specified as what was the profile that she was handling and what was her exact nature of job. However it is not difficult to godge from her own admission that being a liasoning officer she was employed for the purpose of making it possible for A­4 to obtain the environmental clearance from Government agencies. The fact that she was in contact with accused Neeraj Khatri for the environment clearance of Thiruveli project for which he received the DD of Rs.4,13,000/­ is established by PW­25 S. Raja and is discussed in great detail above.

357. No evidence to exclude her participation in works other than Gujarat and Andhra Pradesh is stated on record, whereas her involvement and presence in Delhi in pursuit of official work in Delhi, in fact, is affirmed through material placed on record and is in fact admitted during arguments by ld. Counsel for A1 and A­2 & A­4. Hence, the argument that no witness has come forward that demand was made through A­3 is a misplaced argument.

358. To put across his submissions, ld. Counsels for A­1 and A­2 and A­4 relied upon the following judgments : Khaleel Ahmed Vs. State of Karnataka (2015) 16 SCC 35, C. Sukumaran Vs. State of Kerala (2015) 11 SCC 314, B. Jayaraj vs. State of AP. (2014) 13 SCC 59, P. Satyanarayan Murthy Vs. Distt. Insp. of Police, State of A.P. (2015) 10 SCC 152 Mukhtiar Singh Vs. State of Punjab, (2017) 8 SCC 136, C.B. Nagaraj Vs. State of Lokayukha Police, Davanagree, (2013) SCC R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 154 of 264 OnLine Kar 5293, Narender Mohan Sharma Vs. State of State of Rajasthan SB Criminal Appeal No. 221/2016 (DoD 22.07.2019); Ashrafi Lal Vs. State of UP in Criminal Appeal No. 6755 of 2009, State Vs. Awadhesh Narayan in CC No. (1/15) 532215/21016 decided on 10.07.2018, Sanjay Kumar Singh vs. CBI 2019 III AD (Delhi) 545 and Vikram Singh vs. CBI 2018 III AD (Delhi) 288, S.K. Bhatia vs. CBI (Crl. A.1256/2014) (DoD 19.08.2019), C.M. Girish Babu vs. CBI, Cochin (2009) 3 SCC 779 and Ganesh Sharma vs State of U.P. (DoD 06.09.2019) .

359. I now propose to deal with the judgements relied upon by ld. Counsels to suggest non applicability of charge for want of proof demand of demand on behalf of accused persons. Ld. Counsel for A­1 Sh. Ajit Kumar Singh has relied upon Khaleel Ahmed Vs. State of Karnataka (2015) 16 SCC 35 in order to assert his arguments that demand is sine qua non. However from the facts in hand the judgement is distinguishable as the same is arising out of a trap case wherein even the complainant did not support the prosecution case and was declared hostile. Subsequent to the recovery of the trap amount the complainant claimed that compliant was made by him due to anger as he was asked by the accused to come to the office frequently for his work. Even the shadow witness, who was examined did not support the claim of prosecution of demand and only stated that "the party gave amounts in the hands of accused". In the said case it was held that prosecution did not prove its case through evidence on the aspect of demand.

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 155 of 264

360. He then relied on the law laid down in C. Sukumaran Vs. State of Kerala (2015) 11 SCC 314. The facts of this case also reveal that the proceedings in the matter were out of trap, where the FIR did not mention the name of the accused. It is clear that the facts which were stated in the FIR did not match the actual proceedings and even the complainant who was examined as PW­2 turned hostile. The observations made in paras 15 and 16 of this judgement in this regard are reproduced as below:

"15. Further, the fact that out of Rs.1500/­ that was allegedly demanded as bribe money from the complainant, an amount of only Rs.250/­ was paid by him, out of which the appellant allegedly managed to return Rs.50/­ to the complainant, since he had no money left, makes us pause and ponder over the facts and circumstances of the case and casts a serious shadow of doubt on the sequence of events as narrated by the prosecution.

16. Further, none of the prosecution witnesses have actually deposed in the case that the appellant was the person who had demanded and accepted the bribe from the complainant and since PW2 has materially turned hostile, therefore, neither the demand aspect nor the acceptance of the bribe money can be verified from any other witnesses of the prosecution. Further, PW1 in his deposition before the Special Judge has also not supported the case of the prosecution, as he had refused to acknowledge the ownership of the tea shop, on the premises of which the bribe money was allegedly accepted by the appellant from the complainant.

361. The ld. Counsels for A­1 and A­2 & A­4 further relied upon the judgement of B. Jayaraj vs. State of AP. (2014) 13 SCC 59. Even in this case the complainant did not support the prosecution and was hostile. He disowned making his complaint and stated in his deposition that only the amount of Rs. 250/­ was paid by him to the accused with a request that the same may be deposited with bank as fee for renewal of his license.

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362. The reliance place on the judgement P. Satyanarayan Murthy Vs. District Insp. of Police, State of AP (2015) 10 SCC 152 is to be distinguished for the reason that the proceedings in the said case, which again arose out of a trap proceedings could not be proved conclusively as the complainant expired before the trial and he was not examined as a witness for the prosecution. The testimony of trap witness accompanying the complainant was held inadequate as it did not speak of complete version since the demand aspect made on a day preceding to the trap was not witnessed by the trap witness.

363. In Muktiyar Singh Vs. State of Punjab (2017) 8 SCC 136, their lordships based on the entire evidence concluded that the trap was laid upon the accused as a consequence of revenge as the complainant was accused in Section 498A proceedings which were investigated by the original accused (Mukhtiyar Singh) and there was no clear material to support the allegations of demand as the complainant himself was inconsistent during cross examination and a similar observations was made about the testimony of shadow witness. After making observations regarding the veracity of their statements in para 18 to 21 the following observations were made in para 24 as under:

"It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3,000/­ which had been paid or of Rs.2,000/­ as made on the day of trap operation is wholly inadequate to comply with the pre­requisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 157 of 264 even the person in whose presence Rs.3,000/­ at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3,000/­ as well as the demand of Rs.2,000/­ has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act."

364. In CB Nagaraj Vs. State by Lokayukha Police, Davanagree (2013) SCC Online Kar 5293 the Hon'ble Court raised doubt qua the veracity of statement of complainant and the shadow witness. The reliance upon the judgement of Sharad Yadav Vs. Union of India 1999 (51) DRJ which is a case arising out of famous Jain Hawala case was made. The facts are apparently distinguishable and the matter had been discussed pertaining to the insufficiency of material for the purposes of framing of charge.

365. Reliance upon Narindra Mohan Sharma Vs. State of Rajasthan S.B. Criminal Appeal No. 221/2016 (decided on 22.07.2019) is again arising out of the proceedings where facts are in sharp contrast and do not provide any base for the aforesaid judgment to be treated as precedent applicable to the present case, it is revealed that PW­1 Jagdish Rai, independent witness present at the time of personal search of applicant R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 158 of 264 denied the facts mentioned in the personal search memo Ex.P/1. Similar hostile statement was made by PW­3 Sh. Bachhu Singh who also did not support earlier allegations as a result both the witnesses were declared hostile.

366. Whereas in Ashrafi Lal Vs. State of UP in Criminal Appeal No. 6755 of 2009 the facts are so opposite that even the accused were incorrectly identified and the witnesses present were not brought to testify for proving the prosecution case as is observed in paras 13 and 14 which are reproduced herein below:

"13. ..... While those were the allegations in the FIR, at the trial neither Jagdish Shetty was produced nor the testimony of the informant was consistent. In his examination­in­chief, the first informant claimed that he had paid the bribe money of Rs. 2,000/­ to the appellant personally. However, during his cross examination he changed his stand and asserted that he did not have money with him at that point of time and therefore, the money was paid by his friend Mohd. Isa, to the appellant. Besides, the fact that testimony of the informant becomes shaky, the prosecution chose not to cross examine Mohd. Isa. On the other hand, the prosecution did examine brother of Mohd. Isa, namely Sheikh Ayub who in his cross examination denied the suggestion that his brother Mohd. Isa had informed him that he had paid bribe money to the appellant....."

14. Then, it is crucial that the first informant had first identified the appellant and two constables, namely Chandrabali Yadav and Yoghit Singh to be the co­accused persons who had detained the informant and Jagdish Shetty and demanded payment of bribe of Rs. 10,000/­ However, that version was found to be false or wrong in the preliminary inquiry itself......"

367. In State Vs. Awadhesh Narayan in CC No. (1/15) 532215/21016 decided on 10.07.2018 which is judgement relied upon from Delhi R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 159 of 264 District Court, is to be distinguished as the observations are based on finding that the claim of prosecution rests on hearsay evidence.

368. In addition to the above judgements relied upon by ld. Counsel for A­ 1, ld. Counsel for A­2 and A­4 has also relied upon the judgments of Sanjay Kumar Singh vs. CBI 2019 III AD (Delhi) 545 and Vikram Singh vs. CBI 2018 III AD (Delhi) 288, besides relying upon Khaleel Ahmed (supra), P. Satyanarayan Murthy (supra), B. Jayraj (supra) on the above aspect. However, his judgments on this point are also distinguishable. In Sanjay Kumar Singh (supra) (para­7) and in Vikram Singh (supra) (para 19) are setting the reasoning on distinguishable facts and are reproduced herein below:

"7. It is the case of prosecution that from the original DVR, a cassette (Q1) was prepared. It has come in the evidence of Complainant (PW1) that when the said cassette (Q1) was played, it was not found to be audible and the original DVR was not produced before the Court. It transpires that in the cassette Q1 and Q2, the voice of appellant is not audible to attribute any role to him and that the electronic evidence led is not accompanied by a certificate under Section 65B of the Indian Evidence Act, 1872. Supreme Court in Anwar P.V. Vs. P.K.Basheer & ors. (2014) 10 SCC 473 has categorically reiterated that in the absence of certificate under Section 65B of the Indian Evidence Act, 1872, secondary evidence in electronic mode is not admissible. Since the electronic evidence led by prosecution is not accompanied by certificate under Section 65B of the Indian Evidence Act, 1872, therefore, it has to be excluded from consideration and thereupon, this Court finds that the prosecution is left with the evidence of Complainant (PW­1), who has categorically stated in his evidence that he was told by CBI about appellant being a party to the commission of offence in question and that Complainant (PW1) had not heard or seen appellant talking to his co­ accused Hari Chand. It has come in the evidence of Complainant (PW1) that appellant was not spotted by him when inspection of his factory R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 160 of 264 was purportedly done by appellant and his co­accused Hari Chand on 31st December, 2007. Even the presence of appellant on the day of inspection is not established from the evidence of Complainant (PW1). Appellant is not required to explain his presence at the spot and so, presumption under Section 20 of the PC Act does not arise."

19. The evidence collected as a whole does not inspire confidence. PW­5 was the star witness of the prosecution. He did not support the case of the prosecution. He set up a new version in his cross examination. As per him, the person who had collected the money was standing in a group along with three traffic police officials. The two accused persons were standing in another group meaning thereby that the person who had collected the money was not one of the two accused persons. The three persons including the person who had accepted the money dropped the money on the ground and ran away. The police party chased them but they could not be traced. Further version of the complainant being that one of the accused person (most likely constable Vikram Singh as his hand­wash had tested positive as per the report of the FSL) had picked up this money from the ground and handed it to the CBI officials. This is not the case as set up by the prosecution. The version of the prosecution being that a demand was made by the ASI to PW­5 in the presence of PW­9 and the money was then handed over and received by the constable. This version is not established. "

Obtaining air tickets by A­1

369. Accused, in addition to other charges, have been subjected to charge under Section 11 PC Act, which reads as under :

"Public servant obtaining valuable thing, without considera­ tion from person concerned in proceeding or business trans­ acted by such public servant.--Whoever, being a public ser­ vant, accepts or obtains or agrees to accept or attempts to ob­ tain for himself, or for any other person, any valuable thing without consideration, or for a consideration which he knows to be inadequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceed­ ing or business transacted or about to be transacted by such public servant, or having any connection with the official R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 161 of 264 functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be inter­ ested in or related to the person so concerned, shall be pun­ ishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."

370. The allegations and imputations made against accused persons are pertaining to acceptance of valuable thing, which are air tickets in the present case. The prosecution has charge­sheeted the accused persons for having accepted the air tickets from Delhi to Chennai for their travel on 03.07.2012 and return on 05.07.2012 from Chennai to Delhi. Admittedly, the tickets were purchased for travel of A­1 and his son Sidharth Khatri, who undertook the journey. The prosecution proved the journey undertaken by A­1 and his son Sidhart Khatri though PW9 Sh. Vijay Roy, DGM, Spicejet, who handed over the documents Ex.PW9/4 pertaining to PNR of travel details of A­1 and his son Sidharth Khatri. The documents were seized against seizure memo Ex.PW9/1 dated 26.10.2016 which was signed by the witness and the travel details which he furnished under his own letter dated 25.10.2016 were then exhibited as Ex.PW9/2. Needless to say that these details were accompanied with certificate U/s 65B of Indian Evidence Act which was also exhibited as Ex.PW9/3. He also stated that through PNR No. WFQ7CE, passenger A­1 Neeraj Khatri and his son Sidharath Khatri and A­3 Subbulakshmi had booked their tickets from Delhi to Chennai on 03.07.2012 for travelling date 04.07.2012. The tickets were booked on­line on travel boutique through their sub­agent Raja Travel and Tours, Tuticorin. While, A­3 Subbulakshmi cancelled her ticket from Delhi to Chennai and re­booked R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 162 of 264 her ticket from Delhi to Surat for the same date i.e. 04.07.2012 and took flight at 6.05 AM, as per the document Ex.PW9/4, which is PNR details of A­1 Neeraj Khatri and Sidharath Khatri, they both boarded the flight at the same date at 6.30 AM from Delhi to Chennai. The fact that the tickets were booked by A­3 is strengthened by PW­11 Sh. Balasubramanian, Reservation Manager of Raja Travels and Tours, who against seizure memo Ex.PW11/3 signed under his hand, supplied the travel details of A­ 3 from 01.01.2012 to 31.03.2013, which all traveling details were collectively exhibited as Ex.PW11/2. The witness when was confronted with PNR No. WFQ7CE (Ex.PW9/4) stated that the said PNR tickets were booked by Ms. Subbulakshmi (A­3) for herself and Neeraj Khatri (A­1) and Neeraj Khatri (son of A­1) for which she paid and in the next line he stated that the payment is still pending. He then claimed that Ms. Subbulakshmi canceled her tickets while Neeraj Khatri and Sidharth Khatri performed their journey from Delhi to Chennai, which tickets he exhibited as Ex.PW11/6. He further revealed that Ms. Subbulakshmi booked the return ticket of Neeraj Khatri from Chennai to Delhi and paid as per ledger entry.

371. While furthering the submissions, ld. Defence counsel for A­1 and A­ 2 and A­4 submitted that no undue benefit of pecuniary nature was provided as is being claimed by prosecution as while A­3 traveled she paid from her personal expenses and expenses carried for travel on behalf of M/s V.V. Minerals were paid by M/s V.V. Minerals. It is argued that the aforesaid fact as well as that A­1 paid for his ticket in 2017 in cash is R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 163 of 264 admitted by the witness.

372. It be observed that from the reading of statements of PW9 and PW11 in conjunction, it is clearly showed that on the date when the journey was undertaken by A­1 from Chennai and while returning back on 05.07.2012 from Chennai to Delhi, no payment was made for travel by A­1 for himself and for the tickets of his son.

373. Further the witness disclosed that he had received some payments from A­3 against her ledger. However, he was not asked specifically to seek clarification as to which tickets the payments were received and were made by whom as it was the case of defence itself that for travel of Ms.Subbulakshmi, M/s V.V. Minerals also paid, however the travel was certified for the purpose of company.

374. It is stated by witness during examination­in­chief in unequivocal terms that the payment for travel from Delhi to Chennai undertaken against PNR on 03.07.2012 was pending. Suddenly in cross­examination it was stated against the close ended suggestion that the payment was made by A­1 in 2017 without placing any document/ledger or proof of receiving payment which was claimed to have been made in cash without revealing any background as how after five years cash payment was made and accounted for. Interesting is fact that present FIR came to be lodged in the year 2016 and apparently if the payment is made, though no document to show the same is furthered, is paid only after its registration, knowing fully well the nature of offence for which accused has already R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 164 of 264 been subjected to a charge­sheet and that too, after due investigation. It is also interesting that witness who produced all documents pertaining to ledger against notice u/s 91 of IO and admitted his response having been tendered with seizure memo Ex.PW11/1 through which documents were seized did not furnish any information or document regarding the return of payment having been received even during the trial nor A­1 submitted any record of this payment. No date, month etc. was mentioned when he claimed to have made cash payment. Even, for the sake of arguments if it is believed that A­1 made the payment to PW11 in 2017, he by this very argument has admitted not only the fact that he did not make any payment for his own travel on relevant dates i.e. 03.07.2012 and 05.07.2012 and also that he accepted the pecuniary benefit from A­3 who booked his tickets and that there was a nexus between A­1 and A­3 who acted on behalf of A­4 and on instruction of A­2.

Matter not pending with accused

375. While tendering written arguments as well as during oral arguments it is vehemently, vociferously and repeatedly argued that on the date of exchange of DD Ex.PW15/B no file was pending with him. It is argued that there can be no imputation of knowledge upon the accused that such a matter of A­4 is likely to be placed before him or correspondingly there can be any inference of knowledge from evidence that A­4 through A­2 were at any stage aware that son of A­1 is seeking admission for which he needs to be facilitated. For the aforesaid purpose, it is argued that it was a simple transaction of loan as in absence of any matter being pending the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 165 of 264 transaction cannot be read as bribe. In order to again strengthen this submission, statement of PW27 Sh. T.V. Ravi is relied upon to suggest that the formal approval for the proposal of A­4 was provided by Ministry of Commerce on 06.07.2012. It is stated that prior to 06.07.2012 nothing was pending with A­1 and/or with the Ministry of MoEF. It is argued that the proposal was first time handed over to MoEF on 15.10.2012 and till this date, there is no material to suggest that any matter had been pending with A­1 in absence of which no adverse inference can be drawn.

376. While taking the submissions further, ld. Counsel for A­2 and A­4 claimed that as per the language of provision for which accused is charged, any undue advantage or favour must correspond to a reciprocal promise. He referred to paras 22 to 26 of Selvi Jayalalithaa vs. CBI (Crl. OP No. 19152/2010) (DoD 30.09.2011) and also R.S. Nayak vs. A.R. Autenlay 1984 AIR 684. It is averred further that a cause to derive benefit of such a nature cannot be kept for infinite period and for undefined limitation of time. It is claimed that in absence of any give/take shown side by side the accused cannot be held liable for having indulged in exchange of undue favour.

377. However, the submission is rebutted by ld. Sr. PP who while relying on judgment of Jwala Prasad (supra) and Hazari Lal (supra) submitted that it is not requisited by the language of Section 7 of PC Act that a matter must necessarily be pending at the time of acceptance of the undue advantage as the language used under section 7 PC Act is stating about acceptance as motive or reward which point out that the acceptance may R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 166 of 264 be prior or after Act omission for which the accused is advantaged.

378. I am in agreement with the submissions of ld. Sr. PP as though clever argument qua 'reciprocity' is raised, it is not denied that there infact is 'reciprocity' in acceptance of DD Ex.PW15/B and returning the favour by making note on Ex.PW6/1 and indulging on an acknowledged copy of already submitted proposal. The question of 'reciprocity' cannot be stretched to such interpretation that in all cases a public servant must first grant favour or ascertain giving the advantage to the other party side by side or immediately on which he should receive or return a favour and that, a matter in all possibilities must be physically pending with him and/or that he must be able to return the favour in quantified proximate time. At this stage, I again draw support from the law sated in C.K. Damodaran (supra) which is reproduced as below :

"......... According to Shorter Oxford Dictionary `accept' means to take or receive with a `consenting mind'. Obviously such a `consent' can be established not only by leading evidence of prior agreement but also from the circumstances surrounding the transaction itself without proof of such prior agreement. If an acquaintance of a public servant in expectation and with the hope that in future, if need be, he would be able to get some official favour from him, voluntarily offers any gratification and if the public servant willingly takes or receives such gratification it would certainly amount to `acceptance' within the meaning of Section 161 IPC. It cannot be said, therefore, as an abstract proposition of law, that without a prior demand there cannot be `acceptance'."

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379. It is also to be observed that such clandestine transactions are result of tasit understandings of parties who are free to formulate and frame their own ill­gotten terms for such malafide acts / contracts and hence, the decision to keep such terms lucid/flexible and/or liquid is a matter of their own doings and in their hands. In such scenario how it will be inferred or interpreted that the period of first act and its reciprocity is far and wide, as apparently such a transaction is outside the scope of domain of legal obligation is difficult to construe. Further in order to arrive at a conclusion that there is a failure to show a reasonable proximate time limit in return of favour, by A­1 after receiving the Demand Draft, it was required to be shown in the first place that their existed a legal enforceable contract and/or obligation between the parties setting out any time limit for its performance. In absence of which how the parties are likely to keep their acts time bound by any term is for the defence to show.

380. It is also worthwhile to note that the argument of defence is apparently made with an intention to create a "metaphor" to suggest that prior to 15.10.2012 no work of A­4 was pending in MoEF and/or that A­ 4 for the first time came in contact with MoEF only on the above date 05.10.2012, which fact is negated by the charge­sheet itself. It is clear that A­4 had been granted CRZ clearance for their operation in Tirunelveli District, Tamil Nadu in 2005­06 by MoEF. It is a matter of knowledge of accused themselves that setting up of CRZ (Coastal Region Zone) attracts approvals from various Ministries/stake holders and it is a continuing process which cannot be started and/or finished in R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 168 of 264 one day, and that the process is long drawn and time consuming. The fact that the aforesaid approval had been made in the year 2005­06 and in pursuance A­2 had been taking continuous steps is also visible from his statement recorded u/s 313 Cr.P.C. as in response to the questions he admitted as matter of record the portion of statement of PW29 Sh.R. Surendra Purshothaman, Dy. Secretary in Industries Section, Tamil Nadu who handed over the application of A­4 which was exhibited as Ex.PW29/B which was approved by Industries Department, Tamil Nadu after due process and the communication was exhibited as Ex.PW29/C letter dated 26.07.2010. Similarly, through statement of PW27 Sh. T.V. Ravi, it is explicit that when DD was paid the matter was pending for communication of only formal approval with Ministry of Commerce which letter was received on 06.07.2012. This is intriguing that the DD was handed over on 05.07.2012 i.e. only a day before. What more is needed to show the proximity of acts of accused. After the receipt of formal approval on 06.07.2012, it was in the hands of accused persons to decide the time when they would move the MoEF in next step. Apparently, the accused chose to delay the application for approximately two months which goes to indicate the intention to keep both these transactions apart to not let any suspicion arise. It is also pertinent to note that A­4 through A­2 had been in process of receiving clearance from MoEF earlier on five occasions since he received first approval in 2006 as is stated by IO/PW34 that he had been in and out of MoEF is thus clearly established by these statements, in view of which, reliance made on R.S. Nayak and Selvi Jaylalitha (supra) (para 26 (iv) R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 169 of 264 of Selvi Jaylalitha (supra), is distinguishable to the facts of the present case.

381. It is not necessary for the court to consider as to whether or not the accused as a public servant was capable of doing or intended to do any act as such. Where the illegal gratification is alleged to be received as public servant, the necessary ingredient are met. The guidelines for incorporation of the word "motive" or "reward" for doing have been detailed by Hon'ble Supreme Court in Mahesh Prasad's case (supra), wherein, following is held :

"It is pointed out that the appellant though employed in the Railway was not himself a person who was in a position to give a job to the complainant nor is it shown that he had any intimacy or influence with any particular official who could give a job. It is urged therefore that the offence, if any, committed by the appellant could only be one of cheating and not the receiving of a bribe. This argument is without any substance. By the terms of section 161 of the Indian Penal Code a person who is a public servant and accepts illegal gratification as a motive for rendering service, with any public servant as such, is guilty of the offence thereunder. To constitute an offence under this section it is enough if the public servant who receives the money takes it by holding out that he will render assistance to the giver "with any other public servant" and the giver gives the money under that belief. It may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it. He may not even have intended to do what he holds himself out as capable of doing. He may accordingly be guilty of cheating. None the less he is guilty of the offence under section 161 of the Indian Penal Code. This is clear from the fourth explanation to section 161 of the Indian Penal Code which is as follows :

"A motive or reward for doing.' A person who receives a gratification as a motive for doing what he does not intend to do (or as a reward for doing what he has not done) comes within these words. "

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 170 of 264

Illustration (c) to section 161 of the Indian Penal Code which runs as follows also elucidates this: A, a public servant, induces Z erroneously to believe that A's influence with the Government has obtained a title for Z and thus induces Z to give A money as a reward for, this service. A has committed the offence defined in this section. "

Thus where a public servant who receives illegal gratification as a motive for doing or procuring an official act whether or not he is capable of doing it or whether or not he intends to do it he is quite clearly within the ambit of section 161 of the Indian Penal Code. ......"

382. Based on above discussion, the arguments raised qua reciprocity in a reasonable time bound manner is misplaced submission and is to be discarded.

No anomaly in receiving the application directly

383. Another set of submissions arise towards protection of the Act of A­1 in handling of the proposal of A­4. It is claimed that the proposal which was furnished by A­4 through its Managing partner A­2 could have been furnished and dealt with in both IAs i.e. IA­II and IA­III at MoEF. It was argued that the activities attached to the proposed project were capable of being undertaken, entertained and approval from both the IA Sections, divisions and therefore, two separate applications were submitted by A­4 in both the divisions which were allotted separate diary numbers and file numbers. It was averred that since the project was done alongwith SEZ project, it comprised multiple activities like mining which required clearance in CRZ (Coastal Region Zone which was being dealt in IA­III Division) and other activities required clearance under IA­II Division.

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 171 of 264

384. Since the right procedure to be followed was according to major project, which was mineral processing plant, it was to be dealt in IA­II Division. Ld. Counsel heavily relied upon the statement made by PW26 Sh. Sushil Kumar Srivastava, PW30 Sh. Chander Mohan Sharma as well as PW33 Sh. Amardeep Raju in this regard. Ld. Defence counsel has also raised the argument that two separate applications were furthered by A­4, since the project comprised of the activities which was pending before two different IAs i.e. IA­II and IA­III.

385. However, a close glance over the evidence submitted on record by prosecution belies this assertion. What is apparent from the statement of PW8 Sh. Praveen, who at the relevant time was working in Central Registry (CR Section) and was an employee in MoEF since August 2004, shows that original proposal was submitted on 15.10.2012 by A­2 in CR Section. PW8 then made acknowledgement/receipt upon the copy of application/proposal originally submitted on which he wrote in his own handwriting "letter is sent to IA­III 8039/CR/BH dated 08.11.2012". The original proposal is exhibited as Ex.PW8/1. He added that he marked the letter to IA­III because the subject matter of covering letter pertained to SEZ project. He was not subjected to any cross­ examination.

386. Had there been any endeavour to submit two applications, two applications must have been tendered at CR Section and in the first instance itself, the defence must have pointed out from the set of documents the other application alongwith Ex.PW8/1, which was made R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 172 of 264 over by A­2 under his own signatures complete in all respects with annexures at the CR Section. There is no other application and the only one application which is made in following course of procedure is accepted at CR Section and is forwarded to IA­III division. There is no cross­examination of this witness, which also goes on to suggest that accused was well aware of the procedure (which itself shows the knowledge on the part of A­2 that only one application is tenderable and not two). It was also shown by tendering the application at Central Registry that accused knew that any application needed to be moved before the Ministry must be submitted under procedure first to CR Section. Having noted that the application comprised of the SEZ project was forwarded to IA­III, A­2 approached A­1 and handed him over (by hand) the acknowledged copy of the application, which is exhibited as Ex.PW6/1. It was this acknowledged copy of Ex.PW8/1 is a fact, which was proved by PW6 Sh.Sudhir Kumar, Office Attendant, who admitted handwriting of A­1 on this acknowledged copy. There is no cross­ examination of this witness, which leads to no controversion to the above facts and dispels the arguments that two applications were moved.

387. The fact that Ex.PW6/1 was not received through formal process or through procedure established by Ministry is detailed by PW14, PW8 and PW30. The fact that copy of the application Ex.PW6/1 was directly received by A­1 is admitted by ld. counsel Sh. Ajit Kumar Singh as at one stage he pointed to the portion in charge­sheet to seek support in saying that there was no anomaly in receiving the application directly by R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 173 of 264 A­1 is affirmed by A­1 himself in Statement of Accused.

388. Further, the material witnesses of prosecution i.e. PW14 Dr. Saroj, PW30 Sh. Chander Mohan Sharma have uniformly stated that in order to maintain transparency the application was mandated to be received in CR Section of Ministry and that, though the Central Secretariat Manual is applied, it is applied in variance due to the work of different nature being undertaken at MoEF and that, the nature of work at MoEF is also at variance with other departments. Hence, the argument of no anomaly in receiving the application directly by A­1 resting on support of Central Secretariat Manual and a portion of charge­sheet did not find support in view of the specific evidence contrary to the submissions. Hence, it could not be established that no deviation was done by A­1 in receiving the application directly from A­2 or that, A­4 had moved two original applications simultaneously. It is also suggested from evidence that fact that PW8 sitting at CR Section in view of applicable notification and considering the contents of the application, forwarded it to IA­III, which act led A­2 to handing over the acknowledgment to A­1 which was incomplete being unsigned and without complete annexures.

389. Ld. defence counsels have also vehemently argued that there was no anomaly in the application itself as is stated by prosecution and is also claimed by IO Insp. Shobha Dutta (PW34) who has pointed out that Ex.PW6/1 was an incomplete document. The assertion that for the reason that the application Ex.PW6/1 did not bear the signatures of A­2, no undue inference is possible, is again a mis­premised assertion. It is an R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 174 of 264 uncontroverted fact that indeed a complete application with annexures was submitted and the said application was marked by CR Section to IA­III as discussed above. The reason for Ex.PW6/1 being incomplete document is self­explanatory as it is not the application but mere acknowledgment due to which reason it is neither complete with annexures nor bears the signatures of the project proposer/applicant S. Vaikundarajan (A­2) for A­4 M/s V.V. Minerals.

Proposal could have been considered in both IA divisions

390. During the submissions heavy reliance is made to the statements of PW­26, PW­30 and PW­33 in order to bring home the submission that the proposal was capable of being considered in both the sections. I, now, proposed to minutely peruse the statements of the above­said PWs for finding the substance in this statement.

391. It is observed that PW26 Sh. Sushil Kumar Srivastava, Scientist in MoEF during his examination­in­chief detailed that proposal Ex.PW6/1 was based on form­I, which was a part of Environment Impact Assessment Notification, 2006 (already Ex.PW7/DX1) was for proposal for SEZ activities. As per form­1 for the proposal SEZ activities/project comes under physical infrastructure including environmental services and were dealt with by the Expert Appraisal Committee (EAC) constituted for appraisal of infrastructure/CRZ related projects in IA­III division. He stated that non­coal mining projects were being dealt in IA­ II Division and also asserted that one work of IA­II cannot be dealt with R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 175 of 264 by another IA Division even if one proposal under confusion comes in another section, it has to be sent and apprised by concerned section only. He again detailed that even on the date when he was making the statement, IA­III dealt with infrastructure­I/II/CRZ. In cross­ examination, he stated that as per notification Ex.PW7/DX1, mining of minerals is covered under item 1(a) of the schedule to EIA notification 2006, were presently dealt with in IA­II Division. He again asserted that as per his knowledge, item 7(e) and 7(h) were being dealt with IA­III Division and contrary suggestions were denied by him. He was then asked vaguely that if a proposal pertaining to both the sections is furthered in one IA, then how the proposal would be dealt with, to which, he replied that the answer can be made only if a specific case is pointed out and while providing example again reiterated that SEZs are to be apprised in IA­III. From the cross­examination of the aforesaid witness rather contrary facts to the detriment of defence were elicited. The witness did not support the contention that the proposal tendered by A­2 was capable of being dealt with in two IAs. He very specifically controverted this statement and clearly stated that one proposal cannot be dealt with in two IAs and one division cannot indulge in the jurisdiction of the other division and even if by chance any such proposal is received it must be returned to the proper division where it should be dealt with. He rather negated in cross­examination the submission that the proposal of accused was capable of being dealt in IA­II and stated that since it was comprising a SEZ project, even in terms of Notification Ex.PW7/DX1 it must have been dealt with in IA­III as the items 7(e) and (h) mentioned R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 176 of 264 in the notification were scheduled in IA­III division.

392. The reliance was then made on the statement of PW30 Sh. Chander Mohan Sharma, Addl. PS to Minister of Civil Aviation, who at the relevant time was posted as Section Officer in MoEF. He was posted as Section Officer in Impact Assessment Division IA­II. He detailed that the division handled projects in which he had handled project proposals relating to coal mining, non­coal mining, industry and thermal power plants submitted to the Ministry for seeking Environment clearance. He further revealed that at his time, Dr. Saroj was Director and Neeraj Khatri (A­1) was Dy. Director. He was shown file pertaining to V.V. Minerals (A­4), to which, he then averred that the proposal was received in his section from the office of Neeraj Khatri, Dy. Director vide diary no. 283 dated 31.10.2012, on which, it was remarked by Neeraj Khatri, Dy. Director, IA­II, Mining "to be considered in next EAC meeting (November) urgent" and the same was marked by Neeraj Khatri to the witness. He identified the handwriting of Neeraj Khatri (A­1) encircled at point A as well as the signatures at point X. This document was already Ex.PW6/1 (acknowledgment of the application Ex.PW8/1). The witness then claimed that since the document was alongwith pre­ feasibility report and relating to mining, it was to be dealt in IA­II division, however, in the same breath he admitted that endorsements made encircled in red at point 'A' on Ex.PW6/1 are usually not made and these endorsements are made only in those cases where the papers are directly received in section from Central Registry. He then detailed R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 177 of 264 that the Coastal Regulation Zone (CRZ) clearance relating to M/s V.V. Minerals was previously dealt with in IA­III. He then detailed that letter Ex.PW6/1 was entered in the diary maintained in their Section on 05.11.2012 whereafter he marked the papers to dealing hand on 09.11.2012. He also revealed that the original project documents submitted by proponent in CR Section were not available in the file which contained the copy of project proponent as the project proposal submitted by proponent in CR Section might have been sent to IA­III Section since the subject mentioned in the proposal pertains to SEZ projects and these projects are dealt in IA­III Section. He was then shown another letter dated 22.07.2009 pertaining to file no.F.1/21/2009­ SEZ, CF 27277 on which he replied that the project was dealt in IA ­III Section as it was SEZ project. During cross­examination, he was put a specific question that as per Central Secretariat Manual even if the files come to higher officer (Dy. Director) he has the powers to do endorsement but it will be put back to the witness for verification, to which, he volunteered that some practices were being followed in IA Section in variance to the Central Secretariat as the issues being handled in IA division were not normal secretarial correspondences but those were scientific projects and in order to maintain transparency in the entire process, it was established as a procedure that papers were to be submitted to CR Section only and therefrom would be delivered to concerned section.

393. In response to a specific court question as to whether the project R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 178 of 264 could have been only dealt only in IA­II or not, he replied that the proposal of M/s V.V. Minerals (A­4) for EC of product specific mineral based SEZ project and during the relevant period, SEZ projects were dealt in IA­III, and he only dealt with the papers as they were marked by A­1 for consideration due to which he marked the papers to dealing hand. He also stated that during the relevant period, as per office memorandum issued by the policy section for handling such composite cases the matter was used to be handled in IA­III section only as it was a SEZ project and he did not point out that matter is to be dealt with in IA­ III when the file came to him due to the reason that there was clear direction of Neeraj Khatri, Dy. Director, Mining (A­1) on document to consider this case, which mean that these papers were to be dealt in mining section. He denied that matter could have been dealt in Both IA­ II and IA­III and not exclusively in IA­III division.

394. From the above statement, again, no inference in favour of the accused can be drawn. During cross­examination it is denied that the proposal submitted by the applicant/accused could have been dealt with in IA­II, leave aside that it was capable of being dealt in both the divisions i.e. IA ­II and IA­III. This also belies the averments that two applications could have been moved for different activities. The witness clearly and cogently stated his helplessness in dealing with Ex.PW6/1 as it had come to him under the remarks of his senior, who had issued clear directions to him.

395. Let, now the statement of PW33 Sh. Amardep Raju be now R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 179 of 264 discussed. He was shown the file of A­4 and in the straight way it was replied that file should have been dealt in IA­III Division because it has components of SEZ and also involved coastal region zone and mining of rare minerals. He was then shown file pertaining to A­4 for product specific (mineral based) SEZ project over an area of 166.66.5 hectare in village Thiruvamblampuram, Taluk Radhapuram, District Tirunelveli, Tamil Nadu (already Ex.PW10/4), which he had dealt with as the file was put up before him by Section Officer, IA­III on which he made a note dated 16.11.2012 to put up the proposal in EAC meeting and the file was marked to Director Sh. Lalit Kapur. The file was put up before him again on 26.02.2013 by Section Officer, IA­III, on which, he made a note that the proposal may be considered in the next EAC meeting in February, 2013.

396. He was then shown letter dated 15.10.2012 (already Ex.PW6/1), to which, the witness replied that the letter does not bear CR number, though, there is stamp of CR Section of 15.10.2012. He detailed the work distribution during the cross­examination and detailed that in IA­III infrastructure and CRZ projects are dealt with. On being specifically asked about that Thermal Power Plant and Co­generation Plant, wind turbine, solar power plant 600 MW and De­salination plant of 100 MLT were covered under industrial projects, which were being dealt with in IA­ II, he replied that industrial projects are proposed in the SEZ projects for which the proponent have applied for environmental clearance and that, SEZ projects are dealt in IA­III irrespective of industrial project proposed R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 180 of 264 by the proponent in his proposal. He was then shown notification dated 14.09.20006 (already Ex.PW7/DX­1) as it was claimed during cross­ examination that the notification does not speak so, in response to which the witness replied that Schedule of EIA Notification 2006, page no. 16 heading/column Project or Activity at Sl. No. 7(c), the details were provided, which incorporates industrial estate or park/complex/areas, Export Processing Zones (EPZs), Special Economic Zone (SEZ), biotech parks, leather complexes and denied that mining of minerals and thermal power plants were exclusively required to be dealt with IA­II and not with IA­III, even if the same were part of SEZ. He denied that mater could have been initiated in both the divisions IA­II and IA­III and not exclusively by IA­III. It was denied that he was making a statement contrary as he was under pressure from CBI to state that the matter could only be dealt in IA­III division.

397. I am constrained to observe that no amount of clever drafting of written submissions, additional written submissions (05.08.2020) and mis­interpreting and half reading of the statements helped the cause of accused persons. From the complete reading of examination and cross­ examination, I am unable to find any statement supporting the arguments of the ld. Defence counsels that the proposal could have been dealt in both the IAs. Rather, what has come out from the aforesaid detailed discussion is firstly that there were no two applications moved which also proves that two applications on same proposal would not have been moved, that it also come up on record that as the project could not have R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 181 of 264 been dealt in two different divisions, hence, the argument that the accused made two applications is a false claim as he only moved one application under his signatures on 15.10.2012 which was duly received (it also became apparent that attempt of diary marking was made on Ex.PW6/1 as well, but it could only succeed up till the stage of securing a CR stamp) and diarized in CR Section and was exhibited by the concerned dealing as Ex.PW8/1. Secondly, that, only the acknowledged copy of the application (Ex.PW6/1) was moved in IA­II which in fact was handed over personally in the hands of A­1. It also goes to show that despite having knowledge of the requisited process, both A­1 (Neeraj Khatri) and A­2 (S.Vaikundarajan) indulged in exchanging the acknowledged copy of the application. It was well within the knowledge of A­1 and A­2 that no two applications were capable of being moved, due to which, the acknowledgement was not signed and A­2 forwarded an unsigned acknowledgment issued to him in response to his application without any Central Registry entry directly in the hands of A­1, which fact is proved by PW30 Chander Mohan Sharma and PW6 Sh. Sudhir Kumar and which fact is also admitted by A­1. Tlthough, it was well within his knowledge, being a senior officer working at Dy. Director level that procedure does not provide him any leverage to consider this application in IA­II division since the project proposal was pertaining to CRZ/SEZ which must have been dealt in IA­III division only. It was also within the knowledge of both the accused that no two applications can be considered simultaneously even if the project comprised of mineral/industrial activities as stipulated by the terms of notification R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 182 of 264 admitted by accused themselves and confronted as Ex.PW7/DX1 in view of item no. 7(e) and (h) specifically the project must have been dealt in division IA­III and not in division IA­II. The assertion that no irregularity had been committed by accused in indulging in receiving the application directly is also a misplaced argument as the settled/established procedure has been detailed by PW30 Sh. Chander Mohan Sharma, which showed that proposal was to be handed over at CR Section and not in the hands of A­1. He in response to cross­examination specifically pointed out that since it was the project of scientific nature, normal secretarial practices and procedure are applied in 'variance' in order to maintain transparency. It was this concern of maintaining transparency which gave rise to establishing the procedure for receiving application in CR Section which then was to forward the proposals to the concerned division. The statement of PW8 Sh. Praveen, dealing hand of CR Section has cogently shown that accused was not only aware of the aforesaid procedure but has also indulged by moving an application formally which then was marked to IA­III division.

By making a remark no illegally is committed by A­1 and he has not provided any undue favour to A­2.

398. I, now, propose to deal with the connected argument of ld. defence counsel that by making a remark no illegally is committed by A­1 and he has not provided any undue favour to A­2.

399. It is vehemently argued that no illegality is shown by A­1 despite his making a remark "to be considered in next EAC meeting (November) R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 183 of 264 urgent" as the project was considered in EAC meeting in the month of February/March as is detailed in the statement of PW30 Sh. Chander Mohan Sharma. While making the aforesaid submission, ld. Defence counsel conveniently bye­passed the facts brought on record. It is forgotten that the proposal/application originally moved alongwtih due annexures and PDF and was marked Ex.PW8/1 was the proposal which was discussed in this meeting. It is shown on record that Ex.PW8/1 which was submitted by A­2 was moved by following the due terms of the established procedure at CR Section and was marked to division competent to deal with the proposal i.e. IA­III, had been undertaken subsequently at various levels in IA­III division and then had reached the EAC meeting in February/March, whereas the copy of application Ex.PW6/1 which was given by A­2 to A­1 did not survive the scrutiny and was returned as has been stated by PW14 Dr. Saroj, who was shown the proposal of A­4 dated 15.10.2012 (Ex.PW6/1).

400. She further commented on the writings of A­1 "to be considered in next EAC meeting (November) urgent" that "at no point of time she had directed A­1 the then Dy. Director for placing the proposal before EAC in any meeting after her joining as Director in the year 2012". In cross­ examination, she specifically denied that as per Office Procedure Manual (at the relevant time), Dy. Director was competent to receive the proposal directly from the project proponent and volunteered that as per the procedure prevalent in 2012, all proposals were to be submitted to Central Registry Section, which were then forwarded to concerned section for R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 184 of 264 opening the files. Thus, pointing out that accused misconducted himself even by receiving the application by hand directly.

401. In response to a specific questions regarding putting up proposal of M/s V.V. Minerals in EAC meeting in the year 2012, after checking the record, she replied that documents in PDF format were not available and the application of the present proposal would be considered only when the document in PDF format is submitted in the Ministry and the proposal of M/s V.V. Minerals was not placed in meeting of November, 2012.

402. From the bare perusal of the statement, it again becomes clear that not only A­1 misconducted himself by making a note under his hand writing for taking up the matter in next EAC meeting citing it as "urgent". It is apparent from the statement of Dr. Saroj, who was his superior at the relevant time, that this act of the writing a remark of such nature on part of A­1 was unauthorized not only for the reason that his division was not competent to entertain the proposal but also that there were no instructions/directions to him for putting such remark by the Director, who was the Member Secretary of EAC and competent to decide the agenda.

403. He then forwarded the acknowledged copy to the Section Officer, who forwarded it to the dealing hand. The reason for the proposal (Ex.PW6/1 dated 15.10.2012) not being taken up in EAC meeting in the month of November was due to the proposal being incomplete and was not supported with the PDF format. The acts of accused in writing a note R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 185 of 264 clearly showed his intention to indulge in a matter which knowingly was outside the scope of his jurisdiction. He then compelled PW30 his subordinate to list it in next meeting, to bye­pass the established process through his remarks due to which PW30 was forced to place it in the agenda of next meeting. A­1 was aware that Section Officer (PW­30) was responsible for drafting the agenda and he could not have over come his instructions he being his superior which cleared the passage of listing of application of A­4 in the meeting of November, 2012 which otherwise would not have been dealt with for the said meeting. This act of A­1 was unauthorized is also clearly stated by PW14 who did not instruct for placing this matter in EAC and is clear misuse of his authority is all stated by the witnesses clearly.

404. Another connected argument which is also being taken up simultaneously is that accused did not show any urgency in dealing and processing the application is another set of misplaced submission. It was not for the inaction of accused by not showing any urgency that the matter was not considered in upcoming meeting but rather A­1 (Neeraj Khatri), who while holding the public office, utilized all powers at his command to leave no stone unturned within his domain to see that the matter is expedited for which he wrote even in his own handwriting as "urgent" to be taken up in next meeting in November" which also falsifies the defence claimed that the accused did not show any urgency or haste in dealing with the proposal and hence did not impart any undue advantage or favour to A­2 or A­4. The consideration of proposal Ex.PW6/1 did not fail due R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 186 of 264 to omissions of accused but for the reasons beyond his control as despite his best effort the proposal could not reach the approval of EAC due to inherent defect in application, the benefit of which now cannot be claimed by accused to his advantage.

405. The submission that the proposal of 15.10.2012 could not be handled by A­1 since he had no competence to decide the agenda for EAC which was to be finalized by Director and that he did not forward the proposal immediately on 15.10.2012 for which the reliance is again placed on the statement of PW12 Sh.Jagdish Kumar Chaturvedi, PW30 Sh.Chander Mohan Sharma and PW14 Dr. Saroj, is contradictory argument. It is evident that through the agenda for EAC was set up by Director, the Dy. Director was responsible to impart assistance in the said process, which in fact, had to initiate from the Section officer. There is no denial that being Dy. Director A­1 (Neeraj Khatri) was not responsible to actively help/assist and/or prepare the agenda for EAC which is again stated to be affirmed by PW14 Dr. Saroj in her statement.

Vicarious liability

406. Another challenge proposed to the case of prosecution is made with the arguments of A­4, who stated that A­4 company (M/s V.V. Minerals) cannot be held liable as there is no recognisation to the principle of vicarious liability which may be in criminal jurisprudence extended to A­

4. It is argued that there is no provision for extension of mens rea upon a company which is an artificial person in Criminal Law. He relied upon R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 187 of 264 the judgment of Sunil Bharti Mittal Vs. CBI (Crl. Appeal No. 34 of 2015) (DoD 09.01.2015). This argument met with rebuttal by ld. Sr.PP who relied upon Iridium India Telecom Ltd. (supra) and Standard Chartered Bank (supra) to controvert this submission.

407. At this stage, it be observed that under the zest to take up this argument in favour of A­4, ld. Counsel forgot that the judgment cited on the above aspect in fact is against him and proposes reverse.

408. In Sunil Bharti Mittal (supra), the question which came for consideration was qua personal liability of Directors of the company in a case, where, the companies were already made accused in the charge­sheet, whereas, in the present case, Managing Partner and company both have been cited specifically as accused.

409. However, it will still be benefiting to note the relevant law. While discussing the question as to whether a corporation can be held liable with requisite mens rea, their Lordships relying on Iridium India Telecom Ltd. Vs. Motorola Incorporated & Ors. Made following observation :

"................................................................................................................ .................................................................................................................

In Iridium India (supra), the aforesaid question fell directly for consideration, namely, whether a company could be prosecuted for an offence which requires mens rea and discussed this aspect at length, taking note of the law that prevails in America and England on this issue. For our benefit, we will reproduce paras 59, 60, 61, 62, 63 and 64 herein:

59. The courts in England have emphatically rejected the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 188 of 264 notion that a body corporate could not commit a criminal offence which was an outcome of an act of will needing a particular state of mind. The aforesaid notion has been rejected by adopting the doctrine of attribution and imputation. In other words, the criminal intent of the "alter ego" of the company/body corporate i.e. the person or group of persons that guide the business of the company, would be imputed to the corporation."

410. After having made the above observations, it needs to be remembered that the argument raised qua vicarious liability is emanating from and/or through interpretation of requisite provisions of the Company Law. However, in the present case the company A­4 M/s v.v. Minerals is not a company constituted under The Companies Act but is a partnership concern which fact is shown in the statement of PW13 Sh. S. Stephen Jairaj, District Registrar (Admn). He brought on record the attested true copy of certificate of registration (Ex.PW13/B) issued to M/s V. V. Minerals (A­4) U/s 58 (1) of the Partnership Act, 1932. He is not subjected to any cross­examination. The document Ex.PW13/B is admitted. The constitution and nature of formation of A­4 hence is established as a Partnership. It is a settled provision that a partnership is not a distinct legal entity which status is enjoyed by a company, whether private, limited or unlimited by virtue of the enactment and is considered completely as a separate entity. A partnership firm is not a legal entity but is a group of individual partners as is recognized in Comptroller and Auditor General vs. Kamlesh Vadilal Mehta (2003) 2 SCC 349. Similarly, it is observed in Khabervali Sahib vs. N. Guddu Sahib (2003) 3 SCC 229 "firm name is only a compendious R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 189 of 264 name given to the partnership and the partners are the real owners of assets and partnership firm is not legal entity".

411. In this background, when the partners did not enjoy a separate distinct legal status and/or the partnership firm also does not have form the partnership firm they have constituted a legal status, how the question of vicarious liability is to be construed is not explained by ld. Counsel Sh. Harsh Sharma.

412. It is to be reminded that the partner of a firm is its agent and as a principal, partnership firm is liable for all wrongful acts of his agent and even if the act of agent is criminal, it does not necessarily take it out of the scope of his authority as is settled in Hamlyn vs. Houston & Co. (1903) 1 KB 81.

413. The question next comes is whether the act done by A­2 S. Vaikundarajan can be considered as an act done by paratner outside the scope of aforesaid law. Looking at the evidence brought on record, it is apparent that the acts of payment of Rs.4,13,000/­ vide Ex.PW15/B were carried out at his instance, instructions and were result of his active involvement. As is evident, A­3 M.s Subbulakshmi obtained the consent directly for aforesaid payment vide Ex.PW15/B which was the demand draft to be paid to VIT University, Vellore for securing the admission of son of A­1. The demand draft indeed was accepted by A­1 outside the Chennai office of A­4 and was handed over to him personally by hand by PW25, an employee of A­4 in furtherance of such R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 190 of 264 directions by A­2, who had also on Ex.PW19/B and Ex.PW19/C consented for its reimbursement in his own hand and the amounts were put in the balance sheet Ex.PW5/4 by Mr. Arunachalam in furtherance of aforesaid directions. Not only the aforesaid the amounts paid were shown in Income Tax Return Ex.PW5/1 to Ex.PW5/5 as "donation' from the accounts of A­4, which shows that at all stages the act of A­2 S. Vaikundarajan was carried out in his 'implicit' capacity as Managing Partner of A­4 in furtherance of the implied authority which he had received from the partners as they finally approved the financial statement which became the subject matter of Ex.PW5/2, the ITR.

414. The fact that this payment was not connected with business is also admitted vide Ex.DW1/A (colly) which also comprise the order of Income Tax Authority and was passed on participation of PW19 Smt. K. Chitra, accountant of A­4 with FCA Satyanarayan Viravanthan, Auditor of company where this amount of Rs.4,15,000/­ was admitted as donation paid by company which entire amount was then offered to tax. The fact that the amount of Rs.4,15,000/­ was paid from the company account also stood established by reading of statement of PW18, PW19, PW24 and PW25 as this payment was entered in company ledger. Thus, this amount was owned by company i.e. A­4. It is only after registration of FIR in 2016 a realization dawned upon the accused A­2 and A­4 that the payment which is stated as donation in accounts of A­4 is rather a loan given in personal capacity and an Auditor's certificate dated 01.09.2017 was made which was tendered with a photocopy of ledger of R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 191 of 264 preceding year(s) and is unauthorized document and is not shown to have undergone into books of account i.e. balance sheet maintained in relevant year. The Ex.PW5/2 which is the only ITR based on balance sheet Ex.PW5/4 is not sought to be amended and apparently the document Ex.DW1/A (Ledger) is kept for internal reference which rather cements the fact of wrong doing by A­4 which was sought to be covered up and camouflaged. However, it did more detriment as the fact stated by prosecution were proved by admission of accused through these document i.e. the Auditor's certificate dated 01.09.2017 (part of Ex.DW1/A).

415. That the acts of A­2 were intended acts in his capacity as Managing Partner of A­4. In such circumstances, a contrary interpretation regarding the accused having not acted for and on behalf of A­4 that and in pursuance of the element of criminal intention held on behalf of company and attribution of element of mens rea to the aforesaid fact is difficult to arrive at.

416. In this background, the submissions made above do not stand on any ground and are to be negated.

Conspiracy

417. Ld. Sr.PP has vehemently argued in support of the conspiracy u/s 120B charge and has relied upon evidence led by prosecution in this regard. It is submitted that all the accused persons were in conspiracy R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 192 of 264 with each other and A­1 in furtherance of receiving the pecuniary benefit of D/D for admission of his son, A­1 indulged in misconduct by making note on application of A­4 as "to be considered in next EAC meeting (November) urgent".

418. Whereas, on the other hand, ld. defence counsels have vehemently opposed the charge and have argued that none of the acats of accused persons are capable of being so read. It is stated by Sh. Ajit Kumar Singh that prosecution has failed to show any meeting of accused persons, least any meeting of mind. It is stated that no evidence of any communication between A­1 and A­3 is made part of record to show communication of demand. It is also argued that mere presence of A­3 in Delhi at relevant time is insufficient to show her being a conduit of A­1 and A­2 and also by putting a note no irregularity is caused by accused who did not ensure any expeditious disposal of the matter of A­4.

419. For understanding the applicability of Section 120B IPC, the necessary provision of understanding its definition is Section 120A IPC, wherein, the following is detailed :

"[120A. Definition of criminal conspiracy.--When two or more persons agree to do, or cause to be done --

(1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation.--It is immaterial whether the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 193 of 264 illegal act is the ultimate object of such agreement, or is merely incidental to that object.]"

420. While discussing the ingredients of conspiracy in Sushil Suri vs. CBI AIR 2011 SC 1713 it is held "The essential ingredient of the offence of "criminal conspiracy", defined in Section 120A IPC, is the agreement to commit an offence. Mere proof of such an agreement is sufficient to establish criminal conspiracy.

421. Pratapbhai Hamirbhai Solanki Vs. State of Gujarat 2012 (10) JT 286, the necessary requirement and mode of proof of criminal conspiracy is detailed as under :

"...............the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both, and it is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused........."

422. It be noted that the submissions of ld. defence counsels above are not borne out from record as it is specifically noted that as per PW­25 S. Raja the demand was communicated by A­3 which is also documented in Ex.PW19/C and has been approved by A­2 in his own handwriting. The fact of communication is also established from booking of common tickets of A­1 and A­3 which were booked by A­3 without cost/any expense to A­1 and his son for their to and fro travel for Delhi­ Chennai. The payment was unaccounted by A­1 is also established through evidence of PWs­18, 19 and 24, 25. That after receiving the DD R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 194 of 264 Ex.PW15/B, A­1 returned the favour is also established and discussed above.

423. All the aforesaid occurrences reveal nothing but the active participation on part of the accused persons in first hatching a conspiracy amongst themselves through joint meeting of mind by an agreement to provide benefit of undue advantage of Rs.4,13,000/­ and in reciprocation solicit illegal advantage of getting the file marked to EAC in the immediate next meeting despite knowing that, the aforesaid act was contrary to established procedure.

424. The facts clearly showed that all the accused persons had a prior meeting of minds and in furtherance of their common design they entered into mutual agreement whereby in lieu of demand and acceptance of DD no. 557534 paid to secure the admission of son of A­1, accused provided undue advantage of indulgence in accepts of Ex.PW6/1 in his own hand, under his division, which could not have been accepted or dealt with the proposals, forced PW30 to forward the proposal for consideration of EAC meeting by making note in this regard despite knowing that the proposal was mere acknowledgment and could not have been taken without due signatures and annexures of applications and also that his division could not have entertained the application which was pertaining to SEZ/CRZ, with intention to facilitate expediting the process for clearance illegally and unduly. The fact that demand through A­3 liasoning officer of A­4 and funds were paid from A­4 are already discussed.

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 195 of 264

425. It is apparent from such acts and indulges that the acts of each accused were carefully planned and at each stage each accused contributed to complete his part of the transaction. It is settled that evidence of Acts of conspiracy is seldom available openly such acts are committed in spaces away from glare. In most of the cases only circumstance can prove an existence of conspiracy which is also shown in this case. In present case, through evidence a transaction is shown complete and the chain to prove each material circumstance is unbroken. In view of settled principles, I am of view that allegations are established by prosecution in this regard.

Abetment

426. Prosecution has also charged accused A­2, A­3 and A­4 for having abeted a public servant. A­1 to indulge in official misconduct by providing him bribe through D/D of face value of Rs.4,13,000/­ for admission of his son. It is alleged that accused A­2 to A­4 collectively indulged A­1 by providing him benefits not due to him to lure him to commit an offence punishable under P.C. Act for which they shall be rendered liable and punished. However, this submission of prosecution has met with resistance by ld. Counsels for accused who have denied having paid any amount as bribe. Nonetheless, in order to assess the averments, it is necessary to observe the relevant provision which is detailed below :

"Section 12 ­ Punishment for abetment of offences defined in section 7 or 11 - whoever abets any offence punishable R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 196 of 264 under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment of a term which shall be not less than six months but which may extend to fie years and shall also be liable to fine."

427. The crux of the charge u/s 12 PC Act i.e. abetment are defined clearly in the relevant provisions u/s 107 to 109 IPC, which states as under:

"Section 107 The Indian Penal Code Abetment of a thing.--A person abets the doing of a thing, who--

First -- Instigates any person to do that thing; or Secondly-- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly-- Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation 1.--A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitate the commission thereof, is said to aid the doing R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 197 of 264 of that act.

Illustration­ A, a public officer, is authorized by a warrant from a Court of Justice to apprehend Z. B, knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and thereby intentionally causes A to apprehend C. Here B abets by instigation the apprehension of C. Explanation 2.­Whoever, either prior to or at the time of commission of an act, does anything in order to facilitate the commission of that act, and theeby facilitate the commission thereof, is said to aid the doing of that act.

Section 108 in The Indian Penal Code

108. Abettor.--A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.

Explanation 1.--The abetment of the illegal omission of an act may amount to an offence although the abettor may not himself be bound to do that act.

Explanation 2.--To constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.

          Illustrations

          (a)             A instigates B to murder C. B refuses to do so.
                          A is guilty of abetting B to commit murder.

          (b)              A instigates B to murder D. B in pursuance of
                          the instigation stabs D. D recovers from the
                          wound. A is guilty of instigating B to commit
                          murder.


R/CC No. 199/2019                CBI vs. Neeraj Khatri & ors.        Page 198 of 264

Explanation 3.--It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge.

Illustrations

(a) A instigates B to murder C. B refuses to do so.

A is guilty of abetting B to commit murder.

(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers from the wound. A is guilty of instigating B to commit murder. Explanation 3.--It is not necessary that the person abetted should be capable by law of committing an offence, or that he should have the same guilty intention or knowledge as that of the abettor, or any guilty intention or knowledge. Illustrations

(c) A instigates B to set fire to a dwelling­house, B, in consequence of the unsoundness of his mind, being incapable of knowing the nature of the act, or that he is doing what is wrong or contrary to law, sets fire to the house in consequence of A's instigation. B has committed no offence, but A is guilty of abetting the offence of setting fire to a dwelling­house, and is liable to the punishment, provided for that offence.

(d) A, intending to cause a theft to be committed, instigates B to take property belonging to Z out of Z's possession. A induces B to believe that the property belongs to A. B takes the property out of Z's possession, in good faith, believing it to be A's property. B, acting under this misconception, does not take dishonestly, and therefore does not commit theft. But A is guilty of abetting theft, and is liable to the same punishment as if B had committed theft.

Explanation 4.--The abetment of an offence being an offence, R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 199 of 264 the abetment of such an abetment is also as offence. Illustration A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C commits that offence in consequence of B's instigation. B is liable to be punished for his offence with the punishment for murder; and, as A instigated B to commit the offence, A is also liable to the same punishment. Explanation 5.--It is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. Illustration A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison. B then explains the plan to C mentioning that a third person is to administer the poison, but without mentioning A's name. C agrees to procure the poison, and procures and delivers it to B for the purpose of its being used in the manner explained. A administers the poison; Z dies in consequence. Here, though A and C have not conspired together, yet C has been engaged in the conspiracy in pursuance of which Z has been murdered. C has therefore committed the offence defined in this section and is liable to the punishment for murder.

Section 109 in The Indian Penal Code

109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.

--Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

Explanation.--An act or offence is said to be committed in consequence of abetment, when it is committed R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 200 of 264 in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

            Illustrations

            (a)             A offers a bribe to B, a public servant, as a
                            reward for showing A some favour in the

exercise of B's official functions. B accepts the bribe. A has abetted the offence defined in section 161.

(b) A instigates B to give false evidence. B, in consequence of the instigation, commits that offence. A is guilty of abetting that offence, and is liable to the same punishment as B.

(c) A and B conspire to poison Z. A in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z in A's absence and thereby causes Z's death. Here B is guilty of murder. A is guilty of abetting that offence by conspiracy, and is liable to the punishment for murder.

CLASSIFICATION OF OFFENCE Punishment-- Same as for offence abetted--According as offence abetted is cognizable or non­cognizable

--According as offence abetted is bailable or non­bailable--Triable by court by which offence abetted is triable--Non­ compoundable."

428. Further, the relevant provision of the inherent instinct of abetment and its scope is discussed in Jamna Lal Pandey vs. State of Madhya Pradesh (2010) Cri LJ 538 (MP) as below :

A person abets a doing of a thing :

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 201 of 264

       (i)     he instigates any person to do that thing, or

      (ii)    engages with one or more other persons in any conspiracy
              for the doing of that thing, or

(iii) intentionally aids by act or illegal omission the doing of that thing.

429. Further, in Hansraj vs. State of Haryana 2004 (Cri LJ) 1759, it is detailed that direct evidence of abetment is not necessary and it can be proved from circumstances.

430. While discussing the scope of Section 107, IPC, it is detailed that "Section 107 IPC defines abetment as comprising -

(a) Instigation to commit the offence:

(b)Engaging in conspiracy to commit the office, and

(c) Aiding the commission of offence.

"Abetment" thus necessarily means some active suggestion inducement, participation or support to the commission of the intended act or offence. The word "instigate" liberally mean to "goad" "urge"

"forward", " provoke", incite or encourage to do an act and a person is said to instigate another when he actively suggests or stimulates him to the act by any means or language direct or indirect whether it takes the form of express solicitation or of hints, insinuation or encouragement. It is also not necessary that instigation should be only in words and may not be by conduct. Direct evidence of any instigation or aid is not necessary. As a matter, which can be decided from the circumstances.

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 202 of 264

Reliance in this regard is made upon the law laid down in Girija Shankar vs. State of UP 1988 (Cri.LJ) (MP) 118. Further, in SriRam vs. State of UP air 1975 SC 175, following observation is made :

"It was not enough that an act on part of alleged abettor happens to facilitate the commission of the crime. Intentional aiding and these for active complicity was the gist of offence of abetment"

431. The offence of abetment provides a larger scope. The scope of offence of abetment underlines besides an illegal intention, manifestation of active involvement and participation to achieve the result of illegal design or intention.

432. In order to establish the offence of abetment, the prosecution hence is requisited to show active participation by the A­2 to A­4 in gauding, instigating or inducing A­1 public servant in commission and also their active complicity in public servants indulging in the offence, he is charged of.

433. From the facts discussed uptill now and shown through evidence, it remains proved that DD Ex.PW15/B was made and provided to A­1 at the instance of A­2 from the funds of A­4. The fact that the payment of the said DD was made neither in pursuance of a business related activity of A­4 nor was a due gain or advantage of A­1 is also established. The fact that after receiving the above­said amount A­1 indulged in manipulating the established procedure of his division to provide undue advantage and benefit to A­4 is also established. From the facts R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 203 of 264 discussed, it became apparent that the amount of Rs.4,13,000/­ by way of demand draft was an undue favour to A­1, which was made to extract an advantage at a relevant stage as the matter of A­4 for approval had to come in the Ministry where A­1 could be of help. Thus, the factum of providing the DD Ex.PW15/B as a bribe to extract an undue advantage at relevant point of time is shown, which tentamounts to enticing and inducing A­1 and causing abetment by A­2 to A­4.

434. It is material to observe that A­1 was induced, encouraged and provided to utilize unpaid services and facilities is also established through the statement of PW9 and PW11, who brought on record sufficient material to suggest that the air tickets on 3 rd and 5th July from Delhi­Chennai to and fro travel for A­1 and his son were paid at the instance of A­3.

435. It is also clearly shown from the statement of PW25 that the factum of demand of Ex.PW15/B was communicated by A­3, who was contractual liasioning officer. It is material to observe that defence did not bring any record or evidence to show the scope of her duty which necessarily leads to inference to that her job was to make it easy to obtain necessary approvals from the Ministry where A­1 was employed. The fact that she was directly in touch with A­1 and was the facilitator for A­4 and also acted as conduit between A­1 and A­2 is revealed from the statements of witnesses brought on record by prosecution and documents especially Ex.PW19/B and Ex.PW19/C. R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 204 of 264

436. Further, insight qua the treatment meted upon and bestowed in favour of A­1 from the expenses of A­4 at the instance of A­2 is stated by PW25 who stated as follows :

"I first met Neeraj Khatri at the time of handing over DD to him at Chennai. Secondly during the marriage of son of Vaikundarajan and thirdly at their office in Chennai. Around 15 times we had provided car to Neeraj Khatri."

437. The afore­said statement clearly reveals that all steps and efforts were made to entice the public servant by encouraging him to avail facilities and free services which were never due to him and were completely out of the scope and ambit of his due remuneration, which resulted in his returning it by making note on the acknowledged copy of proposal and mentioning upon it "to be placed in next EAC meeting in November urgent".

438. The abetment having been carried out at the instance of A­2 to A­4 was completed by their own non­disclosure of the aforesaid payment since all the efforts were made to keep the payment camouflaged under the head donation. The contrary argument of the payment having been received back is a misplaced argument is discussed already. No information pertaining to this payment at any stage is made up till 2016 when this fact was digged out during the investigation of the other RC where the allegations of disproportionate assets was being investigated who was also facing investigation for having received an amount of Rs.7,00,000/­ in a trap case.

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 205 of 264

439. All the afaoresaid acts clearly show evidence of active indulgence and participation of inducement and reveal and point towards the involvement of A­2 to A­4 including A­3 in causing abetment.

Retroactive application of amendment

440. Another league of argument raised by ld. defence counsel Sh. Harsh Kumar Sharma is qua the effect of amendment made in Prevention of Corruption Act w.e.f. 26.07.2018. It is claimed that accused persons accused deserves acquittal as words used in the amendment are "substituted". It is argued the word "substitute" is to be understood in its true parlance and it cannot be given same colour and meaning as the word 'amended'. It is claimed that when the provision is substituted it takes the place of the original provision and because of substitution the amendemnt is to be held in operation for the enactment itself. By virtue of this reading he submitted that the provisions on which accused is charged u/s 13(1)(d) PC Act does not survive. He detailed his submissions by way of his written submissions tendered on 05.08.2020 during VC wherein it was claimed that even the saving clause u/s 6 General Clauses Act is of no avail to the court. The written submissions are reproduced herein below, to provide clarity :

"1st Issue:

The Special Judge, appointed under Section 4 of PC Act, can try offences, prescribed under Section 3(1) of the PC Act. In this background, can the Special Judge, exercising powers u/s 4 of PC Act, can continue with the trial of those bundle of facts/acts which no more constitute ingredient of any offence R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 206 of 264 (i.e. Sections 120­B r/w Sections 7, 11, 12 & 13(2) r/w Sec. 13(1) (a) & 13(1) (d) of PC Act, and substantive offence prescribed u/s 12 of PC Act, 1988, as by virtue of PC (Amendment) Act, 2018, all these provisions stood substituted.

2nd Issue:

Since, the Special Judge, appointed under Section 4 of PC Act, can try offences, prescribed under Section 3(1) of the PC Act. In this background, can the Special Judge, exercising powers u/s 4 of PC Act, can take cognizance of those Charge­sheets filed before it w.r.t. those bundle of facts/acts which no more constitute ingredient of any offence, prescribed under Prevention of Corruption Act as amended in 2018, when the investigation had started at Pre 26.07.2018 period but continuing thereafter.

3rdIssue:

Since, the Special Judge, appointed under Section 4 of PC Act, can try offences, prescribed under Section 3(1) of the PC Act. In this background, can the Special Judge, exercising powers u/s 4 of PC Act, can frame charge w.r.t. those Charge­sheets in which he had taken cognizance filed before it w.r.t. those bundle of facts/acts which no more constitute ingredient of any offence, prescribed under Prevention of Corruption Act as amended in 2018, when the investigation and the process of filing Chargesheet including taking cognizance had started at Pre 26.07.2018 period but continuing thereafter.

Submissions:

Because Section 4 of the Prevention of Corruption Act, 1988 [hereinafter referred as PC Act, 1988 (Pre­ amendment)/Principal Act]; has not been amended by Prevention of Corruption (Amendment) Act, 2018 and the Section 4, starts with non­obstante clause, making it clear that irrespective of any law (this would obviously include even the General Clauses Act) for the time being in force the Special Judge, shall exercise jurisdiction for the offences prescribed in Section 3 (1) of PC Act, 1988.

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Natural corollary of the same would be that since w.e.f. 26.07.2018, Section 7, 8, 9, 10 & 12, of the Principal Act stood substituted. The simple Rule of interpretation relating to substitution of a Statute is that the amended provision not only repealed the earlier existing provision that was operated, uptill the date of substitution but also to replace it by another provision which was to be treated as operational during the said period of erstwhile provision.

2. Because the substitution of one text for the other pre­ existing text is one of the known and well recognized practices employed in legislative drafting. "Substitution" has to be distinguished from "Supersession" or a mere repeal of an existing provision.

3 Because Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision, in such a way whereby Substitution of the new Rule or Provision in place of the old one, and the said old one was never intended to keep alive.

4. Because the Notification dated 26.07.2018, must be read as a whole in the context of the other relevant provisions and the principle of interpretation of statute is well settled that when two views of a Notification are possible then it should be construed in favour of the subject.

Incidentally, there is no change in Section 30 or 31 of the Prevention of Corruption Act, 1988, by PC (Amendment) Act, 2018, which is the repeal & Saving Clause, Omission Clause respectively and both are reproduced herein below:­ Section 30 of PC Act (both pre­amended and post­amended) provides as follows:­

30. Repeal and saving.--

(1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed.

(2) Notwithstanding such repeal, but without prejudice to the application of section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 208 of 264 to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act.

Accordingly, this provision does not save the repealed /omitted or substituted provisions of Prevention of Corruption Act, 1988 (Pre­amended).

Section 31 of PC Act (both pre­amended and post­amended) provides as follows:­

31. Omission of certain sections of Act 45 of 1860.-- Sections 161 to 165A (both inclusive) of the Indian Penal Code, 1860 (45 of 1860) shall be omitted, and section 6 of the General Clauses Act, 1897 (10 of 1897), shall apply to such omission as if the said sections had been repealed by a Central Act.

Accordingly, this provision does not save the repealed/ omitted or substituted provisions of Prevention of Corruption Act, 1988 (Pre­amended).

Rather, specific reference to Section 6 of General Clauses Act, 1897 (10 of 97), specifically deals with the omissions only related to the acts and provisions, which were repealed i.e. Section 161 to 165A of IPC only and thus even the General Clauses Act does not save the provisions of Pre­ Amended Act / Principal Act which stood either Omitted explicitly or the provisions, which got Omitted by the process Substitution.

A bare perusal of Section 7, 8, 9, 10 & 12 of the Principal PC Act, 1988, and the respective provisions, which had substituted the erstwhile section would reveal that the Amended Provisions falls within the exception, contemplated u/s 6 of General Clauses Act, wherein it has been specifically prescribed "unless different intentions appear".

Legislature by completely obliterating erstwhile Section 8, 9, 10 & 12 had expressed its intentions extremely clear that the Statute would not describe the Acts, earlier prescribed as offences u/s 8, 9, 10 & 12 of PC Act, 1988 (Pre­Amendment).

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Similarly, in Amended Section 7, if the acts prescribed as offence are committed by public servant then only, this Hon'ble Court can assume jurisdiction to try the said offence.

Thereby making it clear that the provisions which stood substituted by the Amending Act, and their operation had not been saved by these two provisions in Prevention of Corruption Act, 1988, either independently or alongwith a conjoint reading with Section 6 of General Clauses Act, 1897.

5. Because even Section 6A of General Clauses Act, 1897 would not be operative in the present set of scenario because Section 6A of General Clauses Act, provides as follows:­ [6A. Repeal of Act making textual amendment in Act or Regulation. --Where any [Central Act] or Regulation made after the commencement of this Act repeals any enactment by which the text of any [Central Act] or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal.] A bare perusal of Section 7, 8, 9, 10 & 12 of the Principal PC Act, 1988, and the respective provisions, which had substituted the erstwhile section would reveal that the Amended Provisions falls within the exception, contemplated u/s 6A of General Clauses Act, wherein it has been specifically prescribed "unless different intentions appear".

Legislature by completely obliterating erstwhile Section 8, 9, 10 & 12 had expressed its intentions extremely clear that the Statute would not describe the Acts, earlier prescribed as offences u/s 8, 9, 10 & 12 of PC Act, 1988 (Pre­Amendment).

Similarly, in Amended Section 7, if the acts prescribed as offence are committed by public servant then only, this Hon'ble Court can assume jurisdiction to try the said offence.

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Incidentally, any recourse to Section 120B IPC in order to implicate a non­public servant with the acts of public servant would be against the express intention of the Legislature which had, defined Section 7 by using the Phrase "Any Public Servant who"

.6. Because if the intention of the Legislature, to make the Amendment of July, 2018 i.e. PC (Amendment) Act, 2018, effective only prospectively then the Notification or the Amending Statute must have stated so.

Even otherwise, to give the Amendment effect prospectively only, w.r.t. acts committed, prior to the operation of the Amending Act, can only be done by adding a Phrase to the operation of the Statute i.e. "To be effective on or after the date of publication".

Since, no such caveat had been prescribed by the Legislature, therefore, the Courts cannot themselves adopt or coin any such caveat.

7. Because the Narcotic Drug & Psychotropic Substance Act, 1985 was amended in May, 2001 whereby a number of provisions of the Principal Act were substituted some of them are as follows:­ Provision Substituted Provision of Principal NDPS in NDPS Act, 1985.

Act, 2001 Section 4 It substituted Section 7A; Sub­Section 2 & 3.

           Section 6     It substituted Section 15 to .
           Section 7     It substituted Section 20 (b); Sub­Clause (i)
                         (ii).
           Section 8     It Substituted Section 21 to .
                                       (Sec. 22 provided the punishment)
           Section 9     It Substituted Section 25.
           Section 10    It Substituted Section 27.
           Section 12    It Substituted Section 31.
           Section 15    It Substituted Section 36A.
           Section 16    It Substituted Section 36D.
           Section 19    It Substituted Section 41 to 43.
           Section 25    It Substituted Section 54.
           Section 30    It Substituted Section 64A.


R/CC No. 199/2019               CBI vs. Neeraj Khatri & ors.         Page 211 of 264

Needless to say here that the benefit of the reduced punishment, which was prescribed u/s 22 of the NDPS Act (Post Amendment of 2001) was accorded even w.r.t. trials which had concluded even prior to May, 2001 and the benefits were also given where appeals had been preferred and pending qua the order of conviction passed in Pre­ Amendment period.

8. Because Prevention of Corruption (Amendment) Act, 2018, does not explicitly specify as to whether the Amended Provisions would have a retrospective effect i.e. presumed to be effected from 9th Sept. 1988, i.e. the day when the Principal Act was notified or in alternative, the Amended Provisions would be operated from the day, the notification of Prevention of Corruption (Amendment) Act, 2018 was published.

9. Because the creation of a rider, as is detailed in the previous ground is a beneficial provision for those persons who ceases to be Public Servant, as on the day when the indulgence of the court is sought for taking cognizance and it is a settled rule of law that benefit of beneficial provision would always be given retrospectively.

Reference to this effect, can be safely made to Section 428 of Cr.P.C. wherein the benefit of period of Pre­trial custody is provided to the accused irrespective of the fact as to whether the said pre­trial custody was in the same case or in a different case.

10. Because Section 14 of the Prevention of Corruption (Amendment) Act, had substituted, the previously existing Section 19 (1) of the Principal Act, then the ordinary rule of interpretation, w.r.t. word "Substitution" would be as follows:­ Language/ terminology which the legislature had used while inserting new provision is to the effect that the section /provision in the Principal Act stood substituted with the new section /provision.

The word "substitute" ordinarily would mean "to put (one) R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 212 of 264 in place of another"; or "to replace". In Black's Law Dictionary, 5th Edn., at p. 1281, the word "substitute" has been defined to mean "to put in the place of another person or thing", or "to exchange". In Collins English Dictionary, the word "substitute" has been defined to mean "to serve or cause to serve in place of another person or thing"; "to replace (an atom or group in a molecule) with (another atom or group)"; or "a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague".

The substitution of one text for the other pre­existing text is one of the known and well­recognised practices employed in legislative drafting. "Substitution" has to be distinguished from "supersession" or a mere repeal of an existing provision.

Ordinarily wherever the word 'substitute' or 'substitution' is used by the legislature, it has the effect of deleting the old provision and make the new provision operative. The process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to amending Act at all.

It is not a Universal Rule that the word "Substitution" necessarily or always connotes two severable steps, that is to say, one of repeal and another of a fresh enactment even if it implies two steps. However, the aforesaid general meaning is to be given effect to, unless it is found that legislature intended otherwise.

Accordingly it is submitted that Section 4, 6 & 7 of Prevention of Corruption (Amendment) Act, 2018, which had amended Section 7, 8, 9, 10 & 12; alongwith Section 13 respectively of Principal Act by substituting new Provisions in the corresponding Sections of the Principal Act, thus obliterating the erstwhile section of the Principal Act as if, they never existed on the Statute Book.

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 213 of 264

It is submitted that if, by way of interpretation that the substituted provisions of Prevention of Corruption Act would take effect only post 26.07.2018 then a presumption has to be drawn to the effect that the legislature had legislated in Prevention of Corruption (Amendment) Act, 2018 that the amendments being made would be operated only after the date of publication of the said Amendment Act in the Gazette. Since, there is no such averment in the Prevention of Corruption (Amendment) Act, 2018 and the language of the legislature is clear, therefore, treating the amendments only prospective in nature, would be fallacious.

11. Because Criminal Procedure Code, 1973 was amended by the Cr.P.C. Amendment Act, 1978 (45 of 1978) dated 18.12.1978 a number of times, however when an Amendment was carried out in Criminal Procedure Code, w.r.t. Section 428 of the Principal Act. The said amendment was given Retrospective Effect because there was nothing in the said clause which suggest either expressly or by necessary implication that the conviction and sentence which were subject matter of the said provision must be after coming into force the respective amendment.

Accordingly it is submitted that Section 4, 6 & 7 of Prevention of Corruption (Amendment) Act, 2018, which had amended Section 7,8,9 & 10; alongwith Section 13 respectively of Principal Act by substituting new Provisions in the corresponding Sections of the Principal Act, thus obliterating the erstwhile section of the Principal Act as if, they never existed on the Statute Book.

It is submitted that if, by way of interpretation that the substituted provisions of Prevention of Corruption Act would take effect only post 26.07.2018 then a presumption has to be drawn to the effect that the legislature had legislated in Prevention of Corruption (Amendment) Act, 2018 that the amendments being made would be operated only after the date of publication of the said Amendment Act in the Gazette. Since, there is no such averment in the Prevention of Corruption (Amendment) Act, 2018 and the language of the legislature is clear, therefore, treating the amendments only prospective in nature, would be fallacious.

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 214 of 264

12. Because Section 7 of PC Act, (Pre­Amendment) had also been amended, by the Amendment dated 26.07.2018, and now the word "Whoever" had been substituted with word "Any Public Servant".

The simple corollary or interpretation of the said Provision is that earlier in Pre­Amendment Stage, a person who is not a Public Servant on the date of event/act can be prosecuted, however, now at Post­ Amendment Stage, the person alleged to have committed the offence of Section 7, can be only that person who is a Public Servant at the date of alleged commission of the offence u/s 7 of the PC Act.

In background this legal position, it is the case of the prosecution qua which the Trial Court was pleased to take cognizance is to the effect that the alleged demand was not made by the applicant (who is Public Servant) at the alleged date of demand.

13. Because as per the Chargesheet, filed by the prosecution and as per the formal order on Charge dated 30.01.2018, the act which constituted the offence, for which the petitioner is being held by trial, stood repealed from the Statute Book either in its entirety i.e. Section 8 & 13(1) (d) and Section 7 of PC Act had been totally differently worded now as explained earlier.

Accordingly, in background of the respective Repeal, the Prevention of Corruption Act (as applicable today) has the following provisions:­ Section 3. Power to appoint Special Judges:­ (1). The Central Government....................

            (a).    Any offence punishable under this Act
                    and
            (b).    Any conspiracy to commit...............
            (2).    .................................................
            Section 4. Cases triable by Special Judges.
            (1).    Notwithstanding anything content in the Code of
            Criminal Procedure..................
            (2).    Every offence specified in sub­section (1) of Section

(3) shall be tried by Special Judge................... (3). ...................................................

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 215 of 264

(4). Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the trial of an offence shall be held, as far as practicable, on day­to­day basis and an endeavor shall be made to ensure that the said trial is concluded within a period of two years:

Provided that where the trial is not concluded within the said period, the special judge shall record the reasons for not having done so:

Provided further that the said period may be extended by such further period, for reasons to be recorded in writing but not exceeding six months at a time; so, however, that the said period together with such extended period shall not exceed ordinarily four years in aggregate.

Section 5. Procedure and Power of Special Judge. (1) A special Judge may take cognizance of offences. (2) A special Judge, may...................................... (3) Save as provided............................................. (4) In particular and without prejudice.................. (5) A special Judge, may pass upon ...................... (6) A special Judge, while trying an offence ............

of PC Act,1988.

A short analysis of the above mentioned provisions and the obliterated Sections of erstwhile Prevention of Corruption Act, would provide the following conclusions:­ 1stly:

Substitution of Section 7 to 10 & 12, amendment in Section 13, of the erstwhile Prevention of Corruption Act, thus obliterate, the facts and situation constituting the respective offence from the definition of the offence.

In other words, the acts which were constituting the ingredient of respective obliterated Sections are no more an offence for which the Special Judge, had been bestowed upon power to hold trial under Section 3 to 5 of PC Act. 2ndly:

Section 4 of PC Act, exclude the provisions of Criminal Procedure Code or of any other law, w.r.t. offences specified in Sub­Section 1 of Section 3 of the PC Act.

Section 3 of PC Act, Empowers the Special Judge to try offences punishable under PC Act.

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 216 of 264

The necessary corollary of both these provisions are to the effect that the Special Judges, would have jurisdiction to try the cases, w.r.t. offence prescribed under the provisions of Prevention of Corruption Act.

14. Because Section 3 (1) (a) of PC Act, Empowers this Court to take cognizance of the offences punishable under this Act. Section 3(1) (b) Empowers this Court to any conspiracy, to commit or any attempt to commit or any abetment to commit any of the offences specified in Clause

(a).

This provision does not empower the Trial Court to take cognizance only of conspiracy, devoid of offence. As per prosecution, the facts of the case are two private persons [co­accused(s)] are interacting with complainant and claiming money. Thus, the essential requirement of Section 7 PC Act, (as applicable today) qua the fact that it is the Public Servant who must do the alleged act does not exists, accordingly also, the Charge framed by this Hon'ble Court, u/s 120B r/w Sec. 7, 11, 12, 13(2) & 13(1) (d) of PC Act, alongwith the substantive offence of Section 12 of PC Act, is bad in law.

15. Because the petition is being made bonafide and involves a pure question of law, which goes to the root of jurisdiction of the Trial Court w.r.t. the facts of the present petition and, therefore, it is expedient for the interest of justice that the issue relating to jurisdiction and Petition of the respective Penal Provisions of Prevention of Corruption Act, may kindly be adjudicated at the earliest.

It will not be out of place to mention herein that adjudication of such issue would not only save valuable judicial time but also would facilitate a fair adjudication of the 'lis' involved in the present case as if, the adjudication of this issue is being deferred for any reason and is adjudicated at a later stage, then one of the possibility would be a pure waste of judicial time.

16. Because it is also a settled position of law that adjudication of issue of law should be done at the earliest and should not be postponed for any reason on the ground R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 217 of 264 that such issue of law relating to jurisdiction can only be adjudicated after the stage of consideration for Charge.

17. Because the effect of the Amendment caused by Prevention of Corruption (Amendment) Act, 2018, can be easily understood, if each word of the PC (Amendment) Act, 2018, are given their natural meanings and to analyze the same, some of the provisions of the PC (Amendment) Act are reproduced herein­below:­ Section 1. Short tile and commencement This act may be called Prevention of Corruption (Amendment) Act, 2018.

It shall come into force on such date as the Central Government may by Notification in the Official Gazette appoint.

The Prevention of Corruption (Amendment) Act, 2018 was notified on 26.07.2018, thus by the plain reading of the date of Notification and Section 1(2) of the PC (Amendment) Act, 2018, would mean that the operative portion of each of the proposed Amendment would take effect from 26.07.2018 onwards.

The necessary corollary, which can be safely drawn that w.e.f. 26.07.2018, Bundle of facts /acts constituting the ingredient of each of the Substituted Sections, of the Erstwhile/ Principal PC Act, including Section 7 to 10, 12, 13 etc. ceases to be an offence.

Thus, in view of amendment in PC Act, the jurisdiction of this Hon'ble Court to continue the trial, qua the Charge framed dated 30.01.2018 is bad in law and therefore also, the accused (A­2) & (A­4) deserved to be acquitted.

Case Law:

Gottumukkala Venkata Krisham Raju v. UOI (2018) SCC OnLine (SC) 1386;

Govt. of India & Anr. v. Indian Tobacco Association (2005) 7 SCC 396;

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 218 of 264

Zile Singh v. State of Haryana (2004) 8 SCC 1;

Basheer @ N.P. Basheer v. State of Kerala (2004) 3 SCC 609;

General Finance Co. v. C.I.T. (2002) 7 SCC 1;

Kolhapur Cance Sugar Works Ltd. v. U.O.I. (2000) 2 SCC 536;

State of Rajasthan v. Mangilal Pindwal;

(1996) 5 SCC 60;

T. Barai v. Henry AH Hoe &Anr.

(1983) 1 SCC 177;

Boucher Pierre Andre v. Supdt. Central Jail AIR 1975 SC 164;

Koteswar Vittal Kamath v. K. Rangappa Baliga & Co.

(1969) 1 SCC 255;

Rayala Corp. (P) Ltd. v. Directorate of Enforcement, New Delhi (1969) 2 SCC 412"

441. However during further arguments in all fairness he conceded that his earlier arguments have been decided by the Hon'ble Courts, and sought to withdraw the earlier citations (above), in view of which, I do not propose to deal with the aforesaid citations.

442. He then tendered the following citations, in order to bring forth the law subsequent to the amendment, wherein the Hon'ble Courts above have dealt with the aspect of applicability of amendment made in the PC Act and the submissions/arguments of its being effective with R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 219 of 264 retrospective effect. He stated that almost, all of his submissions above have been dealt with except, the inference of "contrary intention" of legislature in view of the recommendation of Law Commission and urged that his fresh submissions on this aspect be dealt with specifically.

443. The citations contrary to his earlier arguments, with which he concurred and relied upon, are cited as below :

i) State of Telengana vs. Mangipet @ Mangipet Sarveshwar Reddy 2019 SCC OnLine (SC) 1559;

ii) Gopal Bist vs. CBI (DMC) (209) 257 DLT 348;

iii) Madhukoda vs. State Through CBI 2020 SCC OnLine Del. 599;

iv) Dhanraj Malvi Vs. State of Madhya Pradesy 2019 SCC OnLine MP 599;

v) S. Murugesan vs. Dy. SP, CBI (2018) SCC Online Mad 9388;

and,

vi) Dhanraj Malvi vs. State of MP SLP (Crl.) 9821/9 (DoD 08.11.2019).

444. However, he omitted to place the law laid down in CBI Vs. A. Raja & Ors. in Crl. M.A. 1731/2020 & Crl. M.A. 1820/2020 in Crl. L.P. 185/2018 (DoD23.11.2020), wherein, the submissions raised by him in his written submissions verbatim have been raised and dismissed by Hon'ble High Court. Hence, it becomes necessary and appropriate to reproduce the relevant discussion to respond to the identical submissions mentioned (in detail) above. The relevant paras are reproduced below :

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 220 of 264

"4. Dr. Abhishek Manu Singhvi, learned senior counsel, Mr. Vijay Aggarwal and other learned counsels appearing for respondents submitted that it is the settled proposition of law that oncean act is repealed and there is no saving clause, it has to be considered as if it had never existed and the same would be considered obliterated from the Statute books. Reliance was placed upon the Hon'ble Apex Court's decision in State of U.P. v. Hirendra Pal Singh, (2011) 5 SCC 305, relevant portion relied upon reads as under:­ "22.It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed. The object of repeal is to obliterate the Act from the statutory books, except for certain purposes as provided under Section 6 of the General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly i.e. pro tanto repeal."

5.Dr. Singhvi, Mr. Siddharth Luthra, learned senior counsels and Mr. Vijay Aggarwal, learned counsel and other counsels for the respondents submitted that Prevention of Corruption (Amendment) Act, 2018 does not contain any savings clause and the Legislature has not amended Section 30 of the Prevention of Corruption Act, 1988 so as to save prosecutions launched under the unamended portions of the Prevention of Corruption Act, 1988. He further submitted that mere violation of any procedures and rules or irregularities were never even held to be Criminal misconduct under Section 13 (1) (d) of the Prevention of Corruption Act, 1988. Reliance in this regard was placed upon decision in CK Jaffer Sharief vs. State (2013) 1 SCC 205.

7. Reliance was placed upon decision of Hon'ble Apex Court in Kolhapur Canesugar Works Ltd. in Crl.L.P.185/2018v. Union of India, (2000) 2 SCC 536. They submitted that since Section 13 (1) (d) of PC Act, 1988 stands repealed, the effect is that it stands obliterated from the Statute book and therefore, this leave to appeal is not maintainable. The relevant para runs as under:­ "37.The position is well known that at common R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 221 of 264 law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute­book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the Legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision."

Reliance was also placed upon decisions in Navtej Singh Johar & Ors. Vs. Union of India through Secretary, Ministry of Law and Justice (2018) 10 SCC 1and Mahmadhusen Abdulrahim Kalota Shaikh vs. Union of India 2009(2) SCC 47in support of aforesaid submission.

8.Learned counsel Mr. Vijay Aggarwal and other learned counsels have also drawn attention of this Court to Section 6(a) of The General Clauses Act, 1897, which reads as under:­"6. Effect of repeal. ­-- Where this Act, or any 1 [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not--

(a)revive anything not in force or existing at the time at which the repeal takes effect; orXXXX"

9.Citing the difference between repeal and omission of a provision and applicability of Section 6 of General Clauses Act, learned senior counsel Dr. Singhvi, Mr. Vijay Aggarwal and R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 222 of 264 other learned counsels for the respondents relied upon the decision of General Finance Co. v. CIT, (2002) 7 SCC 1, which reads as under:­ "9.Net result of this discussion is that the view taken by the High Court is not consistent with what has been stated by this Court in the two decisions aforesaid and the principle underlying Section 6 of the General Clauses Act as saving the right to initiate proceedings for liabilities incurred during the currency of the Act will not apply to omission of a provision in an Act but only to repeal, omission being different from repeal as held in the aforesaid decisions. In the Income Tax Act, Section 276­DD stood omitted from the Act but not repealed and hence, a prosecution could not have been launched or continued by invoking Section 6 of the General Clauses Act after its omission.

11.Learned counsels for the respondents further submitted that though the word used may be 'amendment' in the provision, however, as per the Statements of Objects and Reasons, it is actually a case of substitution without any saving clause. It was argued that a Statute which repeals or amends must either have a saving clause or there should be an indication that the intention of the Legislature was to protect the past actions under Section 6(c) of the General Clauses Act. It was submitted that there was a specific saving and repeal provision in Section 30 of the PC Act, 1988, which reads as under:­ "30. Repeal and saving. --(1) The Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed in Crl.L.P.185/2018(2) Notwithstanding such repeal, but without prejudice to the application of section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 223 of 264 Act."

12.However, there is no saving clause in the Amendment Act and therefore, the present proceedings cannot be continued in the eyes of law. It was argued that the PC (Amendment) Act, 2018, No. 16 of 2018, did not make any change to Section 30 of the PC Act, 1988 (un­amended) nor provided saving clause for the amendments/substitutions made by PC (Amendment) Act, 2018, No. 16 of 2018 and in the absence of specific savings clause, recourse cannot be taken to the General Clauses Act 1897. Learned counsels for the respondents have also placed reliance upon the decision of the Hon'ble Apex Court in Sushila N. Rungta (dead through LRs) vs. Tax Recovery Officer(2019) 11 SCC 795.

13.It was further submittedthat when the Act is beneficial in nature, then Section 6A of the General Clauses Act shall not apply. Reliance in this regard was placed upon decision of Hon'ble Apex Court in New India Assurance Co.Ltd Vs C.Padma And Another 2003(7) SCC 713.

14.It was further submitted that those enactments which relax the existing procedure or mollify the rigor of criminal law, are given retrospective effect as per the rule of beneficial construction. Learned counsels also relied upon decision of the Hon'ble Apex Court in T. Barai Vs. Henry Ah Hoe,(1983) 1 SCC 177 and of Gauhati High Court in Md. Abdul Haque vs. Srimati Jesmina Begum Choudhary2012 SCC OnLine 143.

18.Attention of this Court was also drawn by Mr. Sudhir Nandrajog, learned senior counsel, to the Report of the Rajya Sabha on the PC (Amendment) Bill, 2013 to submit that the Hon'ble Minister of State while presenting the Bill in Lok Sabha on 25thJuly, 2018 had categorically stated that the unamended provision did not have the necessity of element of mens rea and hence, was often misused and, therefore, Section 13(1) (d) was repealed by PC (Amendment) Act, 2018.Learned counsel submitted that extract of speech introducing a Bill is a tool of interpretation of the law, as has been held by the Hon'ble Apex Court in K.P Varghese Vs. Income Tax Officer, Ernakulam (1981) 4 SCC 173and Union of India Vs. MartinLotteries Agencies Ltd (2009) 12 SCC 209.

38.Thus, from the above pronouncements of the Hon'ble R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 224 of 264 Apex Court, it is clear that the provisions of General Clauses Act have to be read into the provisions of every Statute which has been enacted after coming into force of the General Clauses Act. That being the case, the General Clauses Act no doubt applies to Prevention of Corruption (Amendment) Act, 2018, being a Statute which has come into force after the enactment of the General Clauses Act.

41.Perusal of the above provision reveals that whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless a different intention appears from the amending Act. In other words, the amended or the repealed Act must manifest an intention against the applicability of Section 6 of the General Clauses Act. Perusal of the Prevention of Corruption (Amendment) Act, 2018 does not at all reflect any intention that Section 6 of the General Clauses Act will not apply. The amending Act does not indicate that all pending proceedings or prosecutions undertaken under the unamended Act would lapse on coming into force of the amending Act.

43.However, the Hon'ble Apex Court in number of judgments has held that mere absence of a saving clause does not rule out the operation of Section 6 of the General Clauses Act. The Hon'ble Court in State of Punjab v. Mohar Singh, (1955) 1 SCR 893 has observed as under:­ "8.The High Court, in support of the view that it took, placed great reliance upon certain observations of Sulaiman C.J. in Danmal Parshotamdas v.Baburam [ILR 58 All 495] . The question raised in that case was whether a suit by an unregistered firm against a third party, after coming into force of Section 69 of the Partnership Act, would be barred by that section in spite of the saving clause contained in Section 74(b) of the Act. The Chief Justice felt some doubts on the point and was inclined to hold, that Section 74(b) would operate to save the suit although the right sought to be enforced by it had accrued prior to the commencement of the Act; but eventually he agreed with his colleague and held that Section 69 would bar the suit. While discussing the provision of Section 74(2) of the Partnership Act, in course R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 225 of 264 of his judgment, the learned Chief Justice referred by way of analogy to Section 6(e) of the General Clauses Act and observed as follows [ILR 58 All 504] :

"It seems that Section 6(e) would apply to those cases only where a previous law has been simply repealed and there is no fresh legislation to take its place. Where an old law has been merely repealed, then the repeal would not affect any previous right acquired nor would it even affect a suit instituted subsequently in respect of a right, previously so acquired. But where there is a new law which not only repeals the old law, but is substituted in place of the old law, Section 6(e) of the General Clauses Act is not applicable, and we would have to fall back on the provisions of the new Act itself." These observations could not undoubtedly rank higher than mereobiter dictum for they were not at all necessary for purposes of the case, though undoubtedly they are entitled to great respect. In agreement with this dictum of Sulaiman, C.J., the High Court of Punjab, in its judgment in the present case, has observed that where there is a simple repeal and the Legislature has either not given its thought to the matter of prosecuting old offenders, or a provision dealing with that question has been inadvertently omitted, Section 6 of the General Clauses Act will undoubtedly be attracted. But no such inadvertence can be presumed where there has been a fresh legislation on the subject and if the new Act does not deal with the matter, it may be presumed that the Legislature did not deem it fit to keep alive the liability incurred under the old Act.

44.In another case titled BCCI v. Kochi Cricket (P) Ltd., (2018) 6 SCC 287, the Hon'ble Apex Court has reiterated the above law as follows:­"43.Shri Sundaram's submission is also not in consonance with the law laid down in some of our judgments. The approach to statutes, which amend a statute by way of repeal, was put most felicitously by B.K. Mukherjea, J.

in State of Punjab v. Mohar Singh [State of Punjab v.Mohar R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 226 of 264 Singh, (1955) 1 SCR 893 : AIR 1955 SC 84 : 1955 CriLJ 254] , SCR at pp. 899­900, thus: (AIR p. 88, para 8) "8.In our opinion the approach of the High Court to the question is not quite correct.

Whenever there is a repeal of an e nactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention.The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. It is in the light of these principles that we now proceed to examine the facts of the present case." (emphasis supplied)This statement of the law has subsequently been followed inTransport and Dock Workers' Unionv.New Dholera Steamships Ltd.[Transport and Dock Workers' Unionv.New Dholera Steamships Ltd., (1967) 1 LLJ 434 (SC)] at para 6 andT.S. Baliahv.ITO[T.S. Baliahv.ITO, (1969)3 SCR 65 : AIR 1969 SC 701] , SCR at pp. 71­72."(emphasis supplied).

45.Thus, it is clear that rights, privileges, obligations, liabilities and remedies under the repealed or amended Act need not be protected expressly by a saving clause. The rights which are not saved by the "saving" provision are not R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 227 of 264 extinguished or stand ipso facto terminated by the mere fact that a new Statute repealing/amending the old Statute is enacted.

46.The Hon'ble Apex Court in its judgments has categorically held that even if the repealing or amending has a saving clause, which does not save all rights and liabilities, even in those circumstances, unless a different intention appears, all rights and liabilities, even though not explicitly saved, are protected by virtue of Section 6 of the General Clauses Act. The Hon'ble Court in CIT v. Shah Sadiq & Sons, (1987) 3 SCC 516 has observed as follows;­ "15.In this case the "savings" provision in the repealing statute is not exhaustive of the rights which are saved or which survive the repeal of the statute under which such rights had accrued.

In other words, whatever rights are expressly saved by the "savings" provision stand saved.

But, that does not mean that rights which are not saved by the "savings" provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted. Rights which have accrued are saved unless they are taken away expressly. This is the principle behind Section 6(c) of the General clauses Act, 1897.The right to carry forward losses which had accrued under the repealed Income Tax Act of 1922 is not saved expressly by Section 297 of the Income Tax Act, 1961. But, it is not necessary to save a right expressly in order to keep it alive after the repeal of the old Act of 1922. Section 6(c) saves accrued rights unless they are taken away by the repealing statute. We do not find any such taking away of the rights by Section 297 either expressly or by implication."(emphasis supplied)

47.In M.C. Gupta v. CBI, (2012) 8 SCC 669, the Hon'ble court has held as under:­"12.In this connection, we may usefully refer to the decision of this Court in Bansidhar v. State of R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 228 of 264 Rajasthan[(1989) 2 SCC 557] where this Court was dealing with the question whether the proceedings for fixation of ceiling area with reference to the appointed date i.e. 1­4­1966 under Chapter III­B of the Rajasthan Tenancy Act, 1955 could be initiated and continued after the coming into force of the Rajasthan Imposition of Ceiling on Agricultural Holdings Act which with effect from 1­1­1973 repealed Section 5(6­A) and Chapter III­B of the Rajasthan Tenancy Act, 1955. While dealing with this question, this Court observed that: (SCC p. 567, para 21)"21. When there is a repeal of a statute accompanied by re­enactment of a law on the same subject, the provisions of the new enactment would have to be looked into not for the purpose of ascertaining whether the consequences envisaged by Section 6 of the General Clauses Act ensued or not ... but only for the purpose of determining whether the provisions in the new statute indicate a different intention."This Court further observed that: (SCC p. 569, para 28) "28. A saving provision in a repealing statute is not exhaustive of the rights and obligations so saved or the rights that survive the repeal."This Court quoted a paragraph from its judgment in CIT v. Shah Sadiq & Sons[(1987) 3 SCC 516 :

1987 SCC (Tax) 270] . It reads thus: (Bansidhar case[(1989) 2 SCC 557] , SCC p. 570, para 28) "28. ... '15. ... In other words, whatever rights are expressly saved by the "savings"

provision stand saved. But, that does not mean that rights which are not saved by the "savings" provision are extinguished or stand ipso facto terminated by the mere fact that a new statute repealing the old statute is enacted.

Rights which have accrued are saved unless they are taken away expressly. This is the principle behind Section 6(c), General Clauses Act, 1897.' (Shah Sadiq & Sons case[(1987) 3 SCC 516 : 1987 SCC (Tax) 270] , SCC p. 524, para 15)"

13.Thus assuming that the proceedings under the 1947 Act initiated against the appellants in Crl.L.P.185/2018 cannot be saved by Section 30(2) of the new Act because no action was taken pursuant to the 1947 Act, prior to coming R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 229 of 264 into force of the new Act, saving clause contained in Section 30 is not exhaustive. Section 6 of the GC Act can still save the proceedings.

14.Viewed from this angle, clauses (c) and (e) of Section 6 of the GC Act become relevant for the present case. Sub­ clause (c) says that if any Central Act repeals any enactment, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. In this case, the right which had accrued to the investigating agency to investigate the crime which took place prior to the coming into force of the new Act and which was covered by the 1947 Act remained, unaffected by reason of clause (c) of Section 6. Clause (e) says that the repeal shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment and Section 6 further states that any such investigation, legal proceeding or remedy may be instituted, continued or enforced and such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed. Therefore, the right of CBI to investigate the crime, institute proceedings and prosecute the appellants is saved and not affected by the repeal of the 1947 Act. That is to say, the right to investigate and the corresponding liability incurred are saved.

48. In another case titled State of Orissa v. M.A. Tulloch & Co., (1964) 4 SCR 461, the Hon'ble Apex Court has held as under :­ The next question is whether the application of that principle could or ought to be limited to cases where a particular form of words is used to indicate that the earlier law has been repealed. The entire theory underlying implied repeals is that there is no need for the later enactment to state in express terms that an earlier enactment has been repealed by using any particular set of in Crl.L.P.185/2018words or form of drafting but that if the legislative intent to supersede the earlier law is manifested by the enactment of R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 230 of 264 provisions as to effect such supersession, then there is in law a repeal notwithstanding the absence of the word 'repeal' in the later statute. Now, if the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded could there be any incongruity in attributing to the later legislation the same intent which Section 6 presumes where the word 'repeal' is expressly used. So far as statutory construction is concerned, it is one of the cardinal principles of the law that there is no distinction or difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is no difference in intention or in substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is posited, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. If such is the basis upon which repeals and implied repeals are brought about it appears to us to be both logical as well as in accordance with the principles upon which the rule as to implied repeal rests to attribute to that Legislature which effects a repeal by necessary implication the same intention as that which would attend the case of an express repeal. Where an intention to effect a repeal is attributed to a Legislature then the same would, in our opinion, attract the incident of the saving found in Section 6 for the rules of construction embodied in the General Clauses Act are, so to speak, the basic assumptions on which statutes are drafted. If this were the true position about the effect of the Central Act 67 of 1957 as the liability to pay the fee which was the subject of the notices of the demand had accrued prior to June 1, 1958 it would follow that these notices were valid and the amounts due thereunder could be recovered notwithstanding the disappearance of the Orissa Act by virtue of the superior legislation by the Union Parliament."(emphasis supplied) R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 231 of 264

49.In view of the above law laid down by the Hon'ble Apex Court, it is clear that even those rights which are not expressively saved by saving clause, continue to operate after enactment of new law and application of Section 6 of the General clauses Act cannot be ruled out even when there is repeal of an enactment followed by fresh legislation. Section 6 of the General clauses Act would be applicable in all such cases unless the new legislation manifests an intention incompatible with or contrary to the provisions of the Section. Thus, unless it is clearly manifested that the amending Act has destroyed or effaced the rights and liabilities under the old Act, the same cannot be inferred."

445. However, after having seen fate of his arguments through the aforesaid judgment, ld. Sh. Harsh Kumar Sharma fairly conceded that the rest of the arguments were not available with him. He then changed his submission and stated that the law laid down in CBI vs. A Raja (supra) is contrary to the intents of Legislature and south to distinguish the judgment by placing reliance on the Reports of Law Commission and of Rajya Sabha, while also urging this court to specifically deal with his this new submission.

446. The arguments above present fresh questions for consideration as whether there is any contrary intention shown? And where from i.e. which source the intention contrary is to be inferred? His first question is answered in the case law A. Raja vs. CBI (supra) wherein the reliance on the law upon T. Barai Vs. Henry Ah Hoe (1983) 1 SCC 177 is made (he himself also relied upon this law). The relevant para dealing with the submissions are reproduced:

"50. This Court, thus, has to examine the question whether the amending Act has destroyed the rights and liabilities under R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 232 of 264 the earlier Act or not. The Hon'ble Apex Court in T. Barai v. Henry Ah Hoe, (1983) 1 SCC 177, has held as under:

"18.Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General clauses Act though it has been specifically mentioned in the repealing Act or not, will follow, unless, as the section itself says, a different intention appears. In State of Punjab v. Mohar Singh [AIR 1955 SC 84: (1955) 1 SCR 893: 1955 SCJ 25: 1955 Cri LJ 254], this Court has elaborately dealt with the effect of repeal. In the case of a simple repeal, there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject, the court would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. "The line of inquiry would be, not whether the new Act expressly keeps alive old rights and liabilities", in the words of Mukherjea, J., "but whether it manifests an intention to destroy them."

447. Further reference to the aspect of "contrary intention" is made in Ramesh Chandra Sahoo Vs. State AIR 1994 Orissa 187, wherein similar preposition is stressed. Reference in this regard may also be made to the judgements of the Hon'ble Supreme Court in Sushila N Rungta v. Tax Recovery Officer, 2018 SCC Online SC 2418 and T.S.Baliah v. T.S.Rangachari, AIR 1969 SC 701.

448. Again in A. Raja (supra), the above principle is stressed and following is observed :

"51.Thus, the Hon'ble Apex Court from time to time in no uncertain terms has held that in order to find out whether the rights and liabilities under the repealed law have been put to an end by the new enactment, the proper approach is not to enquire if the new enactment by its new provisions has kept alive the rights and liabilities under the repealed law but whether it has R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 233 of 264 taken away those rights and liabilities. It has also been held that absence of a saving clause in the new enactment preserving the rights and liabilities under the repealed enactment is neither material nor decisive of the question as to whether the rights and liabilities under the repealed law have been put to an end by the new enactment or not. What is required to be seen is whether new enactment has taken away those rights and liabilities which were in existence under the repealed law.

55.Perusal of the Prevention of Corruption (Amendment) Act, 2018 nowhere reveals that it had the intention of destroying the earlier provisions and it neither indicated any express or implied intention to completely obliterate the earlier law."

449. In Crl. Appeal 1186/2017, titled as Madhu Koda Vs. State through CBI, decided on 22nd May, 2020 which is also relied upon by ld. Counsel, while dealing with the aspect of retrospective applicability of amendment, it is observed that the amendments in PC Act cannot be applied to the offences prior to the changes in the provisions of the Act. The Court rejected the contention of the learned counsel for the appellant that the PC Act was amended with effect from 26thJuly, 2018 and the provision of Section 13(1)(d) stands deleted by virtue of the Prevention of Corruption (Amendment) Act 2018 and further submitted that the allegations made against the appellant no longer constitute an offence, therefore, he is entitled to be acquitted by virtue of the doctrine of beneficial construction. It has been observed as under:

"53. However, this Court is unable to accept that the PC (Amendment) Act, 2018 seeks to repeal the provisions of Section 13(1)(d) of the Act, as it existed prior to 26.07.2018 ab initio. Mens rea is an integral part of the offence under Sub­ clause (ii) of Section 13(1)(d) of the PC Act. The use of the word 'abuse' in the said Subclause indicates so. Thus, there is no reason to assume that the legislative intent of repealing Section R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 234 of 264 13 of the PC Act was to exclude the said offence from the scope of PC Act with retrospective effect."

From the bare perusal of the aforesaid law, it is clear that the submission raised by ld.counsel Sh. Sharma is mis­premised since the above law (which he has tendered himself and relied) it is apparent that the Hon'ble Court has taken note of the "contrary intention of Legislature" as he was sought to argue.

450. In order to ascertain whether there exists an intention contrary, the answer is to be first found from the provisions from the substituted Act / Amendment itself where such an intention is made apparent and/or expressed. Thus the factum of legislature having "contrary intention" is first required to be inferred from the amendment/fresh enactment itself. Whereas nowhere from the entire reading of the amendment and/or the language of fresh provisions substituted amended w.e.f. 26.07.2018 it is brought out that legislature intended otherwise to support above argument

451. Again in Madhu Koda (supra) the Hon'ble Court while placing reliance upon Banshidhar & Ors. Vs. State of Rajasthan & Ors. (1989) 2 SCC 557, discussed as below:

"Section 6 of the GC Act qualifies the effect of repeal stated in sub­clauses (a) to (e) by the words "unless a different intention appears". Different intention must appear in the repealing Act (see Bansidhar[(1989) 2 SCC 557 in Crl.L.P.185/2018]

452. Again in CBI vs. A. Raja (supra), similar the observation as below is made:

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 235 of 264

"26. Prevention of Corruption (Amendment) Act, 2018 does not reveal any intention of destroying the earlier provisions and there is no intention to obliterate the earlier law, therefore, this Court is of the opinion that there is no impediment in hearing the criminal leave to appeal, since the offences in question are alleged to have been committed prior to the coming into force of Prevention of Corruption (Amendment) Act, 2018."

453. However, the use of external aids for removal of doubts qua understanding the intention of legislature has also been discussed in detail in R.S. Nayak vs. A.R. Antulay (1984) AIR 684 and the relevant portion is reproduced herein below:

"Mr. Singhvi contended that even where the words in a statute are ambiguous and may be open to more than one meaning or sense, a reference to the debates in Parliament or the report of a Commission or a Committee which preceded the enactment of the statute under consideration is not a permissible aid to con­ struction. This is what is called the exclusionary rule. In support of the submission, reliance was placed upon Assam Railways and Trading Co. Ltd. v. Inland Revenue Commissioners(1) in which the House of Lords declined to look into the Report of the Royal Commission on Income tax in order to ascertain the meaning of certain words in the Income Tax Act, 1920 on the ground that no such evidence for the purpose of showing the in­ tention, that is the purpose or object, of an Act is admissible. The intention of the legislature must be ascertained from the words of the statute with such extraneous assistance as is legiti­ mate. This view appears to have been consistently followed in United Kingdom because in Katikiro of Buganda v. Attorney General(1), the Privy Council held in agreement with the Court of Appeal of Eastern Africa that the contents of the White Paper were not admissible in evidence for the purpose of construing the schedule. Similarly in Central Asbestos Co. Ltd. v. Dodd the House of Lords declined to look at the Committee Report which preceded the drafting of the Act. In the Administrator General of Bengal v. Premlal Mullick & Ors(3), the Privy Council disap­ proved the reference to the proceeding of the Legislature which resulted in the passing of the Act II of 1874 as legitimate aids to the construction of Sec. 31 by the Appeal Bench of Calcutta High Court. Relying on these decisions, a valiant plea was made R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 236 of 264 to persuade us not to depart from this well accepted proposition of law in England. The trend of law manifested by these deci­ sions broadly indicate that in the days gone by the courts in Eng­ land were of the view that reference to the recommendations of a Commission or Committee appointed by the Government or statements in White Paper which shortly preceded the statute un­ der consideration were not legitimate aids to construction of the statute even if the words in the statute were ambiguous.

The trend certainly seems to be in the reverse gear in that in or­ der to ascertain the true meaning of ambiguous words in a statute, reference to the reports and recommendations of the Commission or Committee which preceded the enactment of the statute are held legitimate external aids to construction. The modern approach has to considerable extent roded the exclu­ sionary rule even in England. Constitution Bench of this Court after specifically referring to Assam Railways and Trading Co. Ltd. v. I.R.C. in State of Mysore v. R.V. Bidap(4) observed as under:

"The trend of academic opinion and the practice in the European system suggest that interpretation of a statute being exercise in the ascertainment of meaning, every thing which is logically relevant should be admissible..... .........There is a strong case for whittling. down the Rule of Exclusion followed in the British courts and for less apologetic reference to legislative proceedings and like materials to read the meaning of the words of a statute. Where it is plain, the language prevails, but where there is obscurity or lack of harmony with other provisions and in other special circumstances, it may be legitimate to take external assistance such as the object of the provisions, the mischief sought to be remedied., the social context, the words of the authors and other allied matters."

Approaching the matter from this angle, the Constitution Bench looked into the proceedings of the Constituent Assembly and "The Framing of India's Constitution; A Study' by B. Shiva Rao. It was however urged that before affirmatively saying that in Bidap's case this Court has finally laid to rest this controversy, the court may refer to Commissioner of Income Tax, Andhra R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 237 of 264 Pradesh, Hyderabad v. Jaya lakshmi Rice and oil Mills Contrac­ tor Co.(1) At page 368 a bench of three Judges of this Court without so much as examining the principle underlying the ex­ clusionary rule dissented from the view of the High Court that the report of the Special Committee appointed by the Govern­ ment of India to examine the provisions of the Bill by which Sec. 26A was added to the Income­tax Act, 1922 can be taken into consideration for the purpose of interpreting relevant provi­ sions of the Partnership Act. However it may be stated that the Court did not refer to exclusionary rule. It dissented from the view of the High Court on the ground that the statement relied upon by the High Court was relating to clause 58 corresponding to Sec. 59 of the Partnership. Act and that statement cannot be taken into consideration for the purpose of interpreting the rele­ vant provisions of the Partnership Act. This decision was not no­ ticed in Bidap's case but the decision in Assam Railways & Trading Co. Ltd relied upon by Mr. Singhvi was specifically re­ ferred to. This decision cannot therefore be taken as an authority for the proposition canvassed by Mr. Singhvi. Further even in the land of its birth, the exclusionary rule has received a serious jolt in Black­Clawson International Ltd. v. Paperwork Waldhef Ascheffenburg AC(2) Lord Simon of Claisdale in his speech while examining the question of admissibility of Greer Report observed as under:

"At the very least, ascertainment of the statutory objective can immediately eliminate many of the possible meanings that the language of the Act might bear and if an ambiguity still remains, consideration of the statutory objective is one of the means of resolving it.

The statutory objective is primarily to be collected from the provisions of the statute itself. In these days, when the long title can be amended in both Houses, I can see no reason for having recourse to it only in case of an ambiguity­it is the plainest of all the guides to the general objectives of a statute. But it will not always help as to particular provisions. As to the statutory objective of these a report. leading to the Act is likely to be the most potent aid and, in my judgment, it would be more obscurantism not to avail oneself of it. here is, indeed clear and high authority that it is available for this purpose".

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 238 of 264

And in support of this statement of law, a number of cases were relied upon by the learned Law Lord. It may also be mentioned that Per Curiam it was held that "where there is an ambiguity in a statute, the court may have regard to the Report of a Commit­ tee presented to Parliament containing proposals for legislation which resulted in the enactment of the statute, in order to deter­ mine the mischief which the statute was intended to remedy". Though the unanimous view was that the report of a committee presented to Parliament preceding the statute could be seen for finding out the then state of the law and the mischief required to be remedied, it must be stated that the majority were of the opin­ ion that report could not be looked at to ascertain the intention of Parliament. The minority (per Lord Dilporne and Lord Si­ mon) were of the opinion that when a draft bill was enacted in a statute without any alteration, Parliament clearly manifested its intention to accept committee's recommendation which would imply that Parliament's intention was to do what committee wanted to achieve by its recommendations. A reference to Hals­ bury's Laws of England, Fourth Edition, Vol. 44 paragraph 901, would leave no one in doubt that 'reports of commissions or committees preceding the enactment of a statute may be consid­ ered as showing the mischief aimed at and the state of the law as it was understood to be by the legislature when the statute was passed.' In the footnote under the statement of law cases quoted amongst others are R. v. Ulugboja(1) R. v. Blexham(2) in which Eigth report of Criminal Law Revision Committee was admitted as an extrinsic aid to construction. Therefore, it can be confi­ dently said that the exclusionary rule is flickering in its dying embers in its native land of birth and has been given a decent burial by this Court. Even apart from precedents the basic pur­ pose underlying all canons of construction is the ascertainment with reasonable certainty of the intention of Parliament in enact­ ing the legislation. Legislation is enacted to achieve a certain ob­ ject. The object may be to remedy a mischief or to create some rights, obligations or impose duties. Before undertaking the ex­ ercise of enacting a statute, Parliament can be taken to be aware of the constitutional principle of judicial review meaning thereby the legislation would be dissected and subjected to mi­ croscopic examination. More' often an expert committee or a Joint Parliamentary committee examines the provisions of the proposed legislation. But language being an inadequate vehicle of thought comprising intention, the eyes scanning the statute would be presented with varried meanings. If the basic purpose underlying construction of a legislation is to ascertain the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 239 of 264 real intention of the Parliament, why should the aids which Parliament availed of such as report of a special committee preceding the enactment, existing state of law, the environ­ ment necessitating enactment of legislation, and the object sought to be achieved, be denied to court whose function is primarily to give effect to the real intention of the Parlia­ ment in enacting the legislation. Such denial would deprive the court of a substantial and illuminating the to construc­ tion. Therefore, departing from the earlier English decisions we are of the opinion that reports of the committee which preceded the enactment of a legislation, reports of Joint Par­ liamentary Committee, report of a commission set up for collecting. information leading to the enactment are permis­ sible external aids to construction."

454. The law of statutory interpretation allows the external aids as an accepted tools for removal doubts and to give meaning and correct interpretation to any statute in the event of ambiguity,the question which emerges is regarding the application of the principle of applying external aid to a given situation and whether such recourse is available in all cases. In order to obtain clarity on this aspect, guidance is sought from Principles of Statutory Interpretation by Justice G.P. Singh, 14 th Edn. wherein, quoting the principles for aid of external assistance the words of (Mr. Justice Homes) are cited on page 17 in following words " you construe a particular clause or expression by construing the whole instrument and any dominant purpose that it may express. In fact, intention is residuary clause intended to gather up whatever other aids there may be to interpretation besides the particular words and the dictionary." Again referring to Blackstone, it is mentioned "the most fair and rational method for interpreting a statute is by exploring the intention of legislature through the most natural and probable science which are R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 240 of 264 either the words, context, the subject matter, the effects and consequences or the spirit and reason of law."

455. "Without intending to lay down a precise and exhaustive list of external aids, LORD Somervell has stated : the mischief against which the statute is directed and perhaps thought to an undefined extent the surrounding circumstances can be considered. The other statutes in parimateria and the state of law at the time are admissible."

456. "These external aids are also brought in by widening the concept of context as including not only the other provisions of the same statute, but its preamble the existing state of law, other statutes in pariamateria and the mischief which the statute was intended to remedy."

457. By pointing recommendations of Law Commission and indicating towards Rajya Sabha debate on PC (Amendment) Bill, what is suggested by ld. Defence counsel is towards the intention of legislature to stop the misuse of the provisions and not to altogether bring out the mischief caused by private parties and public servants by indulging in rampant acts of omission and commission involving mens rea.

458. The aforesaid observation is also stressed from the statements of objects and reasons attached to the amendment and is reproduced herein below :

"Statement of Objects and Reasons - The Prevention of Corruption Act, 1988 provides for prevention of corruption and for matters connected therewith. The ratification by India of the United Nations Convention Against Corruption, the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 241 of 264 international practice on treatment of the offence of bribery and corruption and judicial pronouncements have necessitated a review of the existing provisions of the Act and the need to amend it so as to fill in gaps in description and coverage of the offence of bribery so as to bring it in line with the current international practice and also to meet more effectively, the country's obligations under the aforesaid Convention. Hence, the present Bill."

459. Further, Sixty­Ninth Report on the Prevention of Corruption (Amendment) Bill, 2013 reveals following objectives and the relevant para is reproduced in order to obtain clarity as below :

"The Prevention of Corruption (Amendment) Bill 2013 seeks to amend further Prevention of corruption Act 1988 (PC Act), the Delhi Special Police Establishment Act, 1946 (DSPE Act) and the Criminal Law (Amendment) Ordinance, 1944 in order to achieve following objectives :­ Widening of description of both demand and supply sides of corruption by providing criminalization of

i) bribe giving by any person/organization to public servant;

             ii)     bribe taking by public servant by direct or indirect
                     manner; and
             iii)    corporate liability in bribe giving

...............................................................

................................................................. The statement of Objects and Reasons to the Bill mentions that changes proposed to the aforesaid Acts/Ordinance have been necessitated due to ratification of the United Nations convention Against Corruption (UNCAC) in May, 2011 by our country; and Judicial pronouncements in corruption cases to fill in gaps in description and coverage of offence of bribery so as to bring it in line with the current international practice."

460. Again, in the salient features of proposed amendment : offering of bribe is an offence, under para 4 it is observed as below :

R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 242 of 264

"No provision of the Prevention of Corruption Act, 1988 deals with the supply side of corruption directly. However, only Section 12 of that Act deals with supply side of corruption indirectly through the route of abetment which provides minimum punishment of six months extendable to five years of imprisonment with fine. But Section 24 of that Act provides that statement made by the bribe giver in any proceedings against public servant for the crime of corruption (described under Sections 7 to 11, 13 & 15 of the Act) shall not subject that person to prosecution. It is mentioned in the Statement of Objects and Reasons to the Bill that in vast majority of cases the bribe giver goes scot free by taking resort to provisions of Section 24 of the Prevention of Corruption Act, 1988 and therefore it becomes increasingly difficult to tackle consensual bribery in particular. In order to plug such deficiencies in the law, Section 8 of that Act has been substituted by introducing a new definition of 'bribe giving' which is largely base don section 1 of the UK Bribery Act, 2012 under Clause 3 of the Bill. Thus any person who now offers, promises or gives financial or other advantage to another person (third party/intermediaries) or public servant to induce or reward the public servant to perform improperly any public function or activity would constitute as on act of corruption. Even the offering/giving or promising financial other advantage by the bribe giver itself constitutes 'improper' performance of relevant public function or activity'. It therefore implies that bribe giver can not give any pecuniary or non­pecuniary advantage to public servant even in the case of proper function of public function or activity. In simpler term any advantages given or provided to public servant even without demand from the bribe taker could be considered as bribe as the public servant is supposed not totake any thing other than legal remuneration for discharging his/her duty. The terms 'illegal gratification' has been substituted by 'financial or other advantage' in proposed Sections - 7, 8 & 9 of the Act which includes undue advantages of pecuniary and non­pecuniary nature including sexual favour, membership of club, employment of close relatives/associates, etc."

461. It was required to be shown from the reading of the Law Commission Reports and also Rajya Sabha discussion that the intention of the R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 243 of 264 Legislature was not only to repeal altogether the earlier law but also to carry out such repeal from the original date making the amendment provision "retroactive". As observed above, while the amended provisions are silent qua any such demonstration of intent, the Legislature has still reflected its intent in the 'object' of the amendment which is part of the amended statute and is also required to be read conjunctively and in furtherance of the aforesaid discussions to understand 'true intent' of the reason of amendment.

462. From the bare reading of objects of the Act nowhere any expression of contrary intention of legislature is pointed out or shown. After reading the entire Report(s) of Law Commission, ld. Counsel has failed to point out any discussion to suggest any contrary intention as his been vehemently argued. It is not shown anywhere even from the Law Commission Reports that commission intended or suggested for discontinuation of pending trials after amending the provisions. It is to be borne in mind that fine tuning an act for removal of doubts and to make the law more effective in executing its object is true primary focus of the discussion of the above Reports.

463. The Rajya Sabha Committee Report which suggested for repeal of relevant provision also did not say that the amendment is to be made retrospective or act or Omission by public servant or private persons by aiding, abetting such omission/commission by indulging in an incident of demand/acceptance of undue gratification or advantage is not to be treated any more an offence or is to be considered outside the preview of penal R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 244 of 264 offence. Rather the provisions have been "condensed" in order to give more teeth to its implementation.

464. Thus, the reliance upon the Rajya Sabha Report and Law Commission Report, the reading of both of which has not supported the contention of ld. Defence counsel suggest that the Parliament had "contrary intention" as is sought to be repeatedly argued. Rather, what is evident from the reading of both the aforesaid Reports is that the amendment is sought as a curative measure, and is aimed to rather bring into ambit of law even those who remained lightly punished as bribe givers including private parties and corporates. The relevant provisions have been sought to be strengthened against such abettors who indulge and facilitate the acts of bribe giving by inducing, enticing and conspiring with public servants. What is sought to be prevented is only the misuse of provisions against honest officers. The ld. Defence counsel who has sought to place the aforesaid arguments on behalf of A­2 and A­4 which in the present case have been indited as inducers and abettors primarily as bribe givers private parties, do not fall under the aforesaid object and hence no where any benefit from the aforesaid reliance is shown to reach A­2 and A­4.

Sanction

465. It is vehemently argued by ld. Counsel Sh. Ajit Kumar Singh on behalf of A­1 that the sanction Ex.PW1/A has not been granted with due application of mind and is made without carefully examining the documents enclosed along with request proposal from CBI. It is averred R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 245 of 264 that the sanction order has been signed and conveyed in mechanical manner and without taking into consideration the credibility of allegations levelled against A­1. It is argued that the witness Sh. Vazir Singh did not peruse the necessary or relevant documents nor he confirmed from M/s. V. V. Minerals about the amount of Rs. 4,13,000/­ having been given as illegal gratification. He also did not make any effort to inquire from A­1 about the return of the amount to M/s. V. V. Minerals. Reliance was made on R.S. Nayak vs. A.R. Antulay (1984) AIR 684.

466. Whereas, ld. Sr. PP has rebutted the aforesaid submissions and has argued that there is no infirmity with the sanction order which was passed after due application of mind.

467. In order to obtain clarity on the above aspect, the sanction order is reproduced herein below :

                  "                                            Confidential

                              No.15011/02/2016­AVU

Government of Indian Ministry of Environment, Forest & Climate Change, (Vigilance Division) Room No. 402, Agni Wing, Level­IV, Indira Paryavaran Bhavan, Jorbagh Road, Aliganj, New Delhi ­110003 Dated : 9th March, 2017.

ORDER WHEREAS, Shri Neeraj Khatri was posted and working as Scientist C (Deputy Director) in Impact Assessment (IA)­II Division of Ministry of Environment and Forest (MoEF), New Delhi (now known as Ministry of Environment, Forest R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 246 of 264 & Climate Change (MoEF & CC) during the period 2012­13 and he was responsible for handling of proposal relating to Non Coal mining sector and related matters in Impact Assessment­II Division of the Ministry.

AND WHEREAS, Central Bureau of Investigation (CBI), AC­II (ACU­VI), New Delhi registered a case vide RC 2172016/A0009 against Shri Neeraj Khatri, Deputy Director (Scientist C), MoEF & CC, New Delhi and others, on 01.03.2016 under section 7, 12 & 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and section 120B, Indian Penal Code (IPC). In the Fir, it is alleged that Shri Neeraj Khatri while posted as Scientist C (Deputy Director), MoEF & CC, New Delhi demanded and accepted a bribe of Rs.4,13,000/­ in the form of Bank Demand Draft bearing No.. 557534 dated 03.07.2012 issued in favour of VIT University, Vellore, Tamil Nadu as fee for admission of his son Sh. Siddharth Khatri in B.Tech Mechanical Engineering Degree course at VIT University, Vellore, Tamil Nadu during the academic year 2012­13 from Shri S. Vaikundarajan, Managing Partner, M/s V.V. Mineral, Chennai. At that time, application for environment clearance of the firm M/s V.V. mineral was pending inMoEF & CC, New Delhi where Shri Neeraj Khatri was posted as Scientist 'C' at the relevant time. It is further alleged that the expenditure towards procuring the said Demand Draft amounting to Rs.4,15,000/­ which included commission charges is reflected in the books of accounts of M/s V.V. Mineral on 05.07.2012, as "Donation (MoEF Officer­ Chennai payment)".

AND WHEREAS, the detailed investigation conducted by CBI has revealed that M/s V.V. Mineral was established in 1989 at Keeraikaranathattu, Tisayanvilai, Tiruneveli­627657. The firm has a branch office at Chennai. Shri S. Vaikundarajan is the Managing Partner of the said partnership firm. The firm was accorded CRZ clearance for their operation in Tirunelveli District, Tamil Nadu in 2005­ 06 by the MoEF&CC, New Delhi. The earlier clearances of the firm were processed in the IA­III Division of the Ministry. M/s V.V. Minerla employed Ms. Subbulakshmi on contract basis between the periods from 2011 to till early 2013 to look after the company's work such as obtaining environmental clearance from Government agencies situated R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 247 of 264 outside Tamil Nadu etc. In May, 2012; Industries (MIE2) Department, Secretariat, Chennai on application by M/s V.V. Mineral, recommended to Ministry of Commerce, Government of India, New Delhi for grant of "Formal Approval" to M/s V.V. Mineral for setting up SEZ in an extant to 1.66.66.5 hectares of land in Tiruvembalapuram Cillage, Radhapuram Taluk, Tirunelveli District, Tamil Nadu. The same was approved by Ministry of Commerce on 06.07.2012.

AND WHEREAS, CBI investigation has revealed that Shri Siddharth Khatri S/o Shri Neeraj Khatri secured admission for B. Tech Mechanical Engineering Degree course at VIT University, Vellore, Tamil Nadu during the academic year 2012­13. An amount of Rs.4,13,000/­ was deposited with the said Institute, vide Demand Draft number 557534 dated 03.07.12 issued from the Federal Bank, Mount Road Branch, Chennai, from the account of an employee of M/s V.V. Minerals. This Demand Draft was handed over to Shri Neeraj Khatri in Chennai on 04.07.2012 by another employee of M/s V.V. Mineral. Consequent to this, the Manager, M/s V.V. Mineral, Chennai, prepared an Inter­ office communication dated 03.07.2012 addressing it to Shri S. Vaikundarajan, intimating the preparation of Demand Draft on the instructions of Ms. Subbulakshmi and requesting for re­imbursement of amount of Rs.4,15,000/­.

AND WHEREAS, Shri Vaikundarajan gave directions on this Inter­office communication dated 03.07.12 in his own writing in Tamil meaning "give that money and make entry in donation account". A cash payment voucher was prepared on 05.07.12 by the then Accounts Manager of M/s V.V. Mineral showing the debit of Rs.4,15,000/­ as Donation (MoEF Officer­Chennai payment) which was approved by Shri S. Vaikundarajan. In the Ledger A/c of M/s V.V. Mineral for the financial year 2012­13, the expenditure of Rs.4,15,000/­ incurred in obtaining DD for Rs.4,13,000/­ with commission amount of Rs.2000/­ has been shown as "MoEF officer Chennai payment" on dated 05.07.12. In the ITR of M/s V.V. Mineral for the financial year 2012­13 assessment year 2013­14, the sum of Rs.43,73,000/­ which is inclusive of the said amount of Rs.4,15,000/­ is shown as donations.

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AND WHEREAS, CBI investigation has revealed that M/s V.V. Mineral vide its letter dated 15.10.2012 under the signatures of Shri S. Vaikundarajan, Managing Director addressed to Secretary, MoEF & CC submitted Form­I alongwith Pre­Feasibility Report for seeking Terms of Reference for environmental clearance of products specific (mineral based) SEZ project over an area of 166.66.5 hectare in village Thiruvambalapuram, Talukh­Radhapuram, District ­Tirunelveli­ Tamil Nadu. This application was submitted in the Central Registry of the Ministry and the acknowledged copy along with the enclosures was submitted in IA­II Division by M/s V.V. Mineral. On the said acknowledged copy (letter), it was endorsed by Shri Neeraj Khatri as "to be considered in next EAC meeting (November) urgent" and marked to SO,IA­II. Not only the enclosures to the letter were incomplete, but also, there should have been a proper processing of the matter which includes allotment of file number by the section, scrutiny of the entire documents etc., before Shri Neeraj Khatri could have made a noting regarding putting up the file in next EAC meeting. Besides, the present matter of the firm should have been dealt in IA­ III Section of the Ministry.

AND WHEREAS, the CBI investigation has revealed that Shri Neeraj Khatri/Shri Siddhartha Khatri travelled from Delhi to Chennai on 04.07.2012 and Shir Neeraj Khatri travelled from Chennai to Delhi on 05.07.2012 on the air tickets purchased and paid by Ms. Subbulakshmi.

AND WHEREAS, the investigation conducted by CBI has revealed that while Shri Neeraj Khatri demanded, through Ms. Subbulakshmi and accepted the amount of Rs.4,13,000/­ as illegal gratification in the form of a Demand Draft, Shiri S. Vaikundaraj directed the same to be paid from the account of M/s V.V. Mineral showing the same as donation, in return of which, Shri Neeraj Khatri extended the undue favour of mentioning on the proposal of M/s V.V. Mineral dated 15.10.2012, for seeking Terms of Reference for environmental clearance of product specific (mineral based) SEZ project in village Thiruvambalapuram, District ­Tirunelveli, Tamil Nadu, to be taken up in next EAC meeting in November, though the proposal was incomplete, the processing of proposal was improper and it should have been processed in the IA­III section of the Ministry. Further, R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 249 of 264 Shri Neeraj Khatri and Shri siddhartha Khatri travelled from Delhi to Chennai on 04.07.2012 and Shri Neeraj Khatri travelled from Chennai to Delhi on 05.07.2012 on the air tickets purchased and paid by Ms. Subbulakshmi. Shri Neeraj Khatri had been earlier caught red­handed while demanding and accepting a bribe of Rs.7 lakh which was investigated vide case number RC 1(A)/2013/CBI/ACU­V dated 16.01.2013 and Shri Neeraj Khatri has been charged sheeted in said case on 17.05.2013 and the charges in the said case have been framed on 10.02.2014. As such, Shri Neeraj Khatri is habitual of accepting bribe.

AND WHEREAS, the aforesaid acts on the part of Shri Neeraj Khatri, prima facie disclose commission of cognizable offences punishable under section 120­B of IPC r/w Section 7, 11, 12 & 13(2) r/w 13(1)(a) and 13(1)(d) of Prevention of Corruption Act, 1988 and substantive offence u/s 7, 11, 13(2) r/w 13(1)(a) and 13(1)(d) of Prevention of Corruption Act, 1988 on the part of Shiri Neeraj Khatri.

AND WHEREAS, the President of India, being the authority competent to remove Sh. Neeraj Khatri, Scientist 'C', MoEF & CC and presently posted in the Central Academy for State Forest Service, Coimbatore, Tamil Nadu, from his office, after carefully examining the material/records placed before him and taking into account the available evidence, including FIR dated 01.03.2016 and considering acts and circumstances of the case and after going through the statement of witnesses recorded under section 161 Criminal Procedure Code, 1973, documents collected during the investigation and other relied upon documents/material furnished by the Central Bureau of Investigation in respect of the said allegations is satisfied that Sh. Neeraj Khatri, Scientist 'C', MoEF & CC should be prosecuted in the court of law for the aforesaid offences.

AND NOW THEREFORE, the President of India do hereby accord sanction for prosecution of Shri Neeraj Khatri, Scientist 'C', MoEF & CC presently posted in the Central Academy for State Forest Service, Coimbatore, Tamil Nadu, u/s 19(1) of the Prevention of corruption Act, 1988 for the offences 120B of IPC r/w Section 7, 11, 12 & 13(2) r/w 13(1)(a) and 13(1)(d) of Prevention of Corruption Act, 1988 and substantive offence u/s 7, 11, 13(2) r/w 13(1) R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 250 of 264

(a) and 13(1)(d) of Prevention of Corruption Act, 1988 and any other offence punishable under the provisions of law in respect of the acts aforesaid and for taking cognizance of the said offences by the court of competent jurisdiction.

For and on behalf of the President of Indian Sd/­ (Vazir Singh) Under Secretary to the Govt. of Indian Ph. No. 24695311"

468. The fact that A­1 is a public servant is established through PW­2 Shekhar Ranjan Amin, Under Secretary, who brought the record pertaining to service, posting and leave record of A­1. He exhibited the bio­data from service book as Ex.PW2/H (colly). The page of service book of A­1 is Ex.PW2/1. The entry in service book qua his appointment is Ex.PW2/J. Another entry regarding his appointment on temporary basis to the post of Scientist 'C' in MoEF is Ex.PW2/K. The entry for his receiving benefits of 6th Pay Commission is Ex.PW2/L. His enrolling as member of CGEGIS in service book is Ex.PW2/M. The entry pertaining to annual increment is Ex.PW2/N. The pay revision is Ex.PW2/O. The entry consequent to transfer to Regional Office Chandigarh is Ex.PW2/P and that of pertaining to availing LTC is Ex.PW2/Q and subsequent transfer to Delhi is Ex.PW2/R. The entry for availing leave encashment is Ex.PW2/S. None of the aforesaid statements oral or documentary evidence brought by this witness has not been subjected to any controversion, which proves that A­1 is a public servant which fact is admitted and due to which reason there is no cross­examination of PW­2 who had produced the aforementioned record.

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469. Further, the sanction order is proved by PW­1 Sh. Vajir Singh. He detailed that the competent authority to prosecute A­1 is Hon'ble President of India and as per Transaction of Business Rules, concerned Minister is competent on behalf of Hon'ble President of India to grant sanction. (Reference was made to the Government of India (Allocation of Business Rules) which were marked "AA". Vide notification dated

16.01.2002 which is published in Gazette on 16.02.2002 PW­1 being Under Secretary is 'the' Conveying Authority to convey the sanction for prosecuting the Scientist, Grade­C in Ministry vide order passed by Hon'ble President under Article 77 (2) of Constitution of India (mark­A).

470. The facts above have not been disputed by A­1. Witness exhibited sanction order dated 09.03.2017 bearing no. 15011/02/2016­AVU. The sanction order was bearing his signature, above his rubber seal of office and is comprising of five pages, his signatures along with rubber seal on each page at point 'A', were identified by him where­after it was marked Ex.PW1/A. No infirmity from the sanction order was brought or pointed out to either the witness or court. Any part of the language, date, process undertaken and facts mentioned in sanction order remained unconvtroverted.

471. There is no dispute towards the contents or mode of exhibiting this order. PW­1 further reiterated that vide this sanction order the Hon'ble President of India through Hon'ble Minister was pleased to grant permission to prosecute Neeraj Khatri and also the process and detailed that once the request for sanction is received from any prosecution agency R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 252 of 264 the concerned Vigilance Section examines the case and puts up a note to Hon'ble Minister through channel of Dy. Secretary, Chief Vigilance Officer, Secretary and then Hon'ble Minister. He explained that in this case after receiving the request for sanction from CBI the same procedure was followed. He then stated subsequently "after application of mind on behalf of Hon'ble President, Hon'ble Minister grants sanction where ever he deems it fit to grant sanction". It was disclosed that on receiving the permission to prosecute, the Section Officer of the Division prepared draft sanction letter and again submitted it to the Hon'ble Minister through proper channel. He narrated that he joined his present office when the draft sanction order was already received from the Hon'ble Minister with his approval and he being conveying officer signed and conveyed the order to Hon'ble Minister to prosecute the case being employee of the Ministry. In cross examination he confirmed that he had seen the concerned file and his deposition is based on the notings made upon the documents in the file. He narrated that the draft order was prepared by Sh. Ashok Kumar as per standard procedure in Ministry. He further stated that "I have read carefully Ex.PW1/A the sanction order before signing the same. I have also seen the documents which were enclosed with request proposal from CBI". From the aforesaid it was asserted again by the witness that his deposition was based on his thorough perusal of the record comprising of the notings which were based on the documents and also that he was aware of the proceedings having taken place and the procedure adopted before the sanction was imparted to prosecute A­1.

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472. He then again stated as follows "I have seen the draft sanction order and from that the fair sanction order Ex.PW1/A was prepared. There is no difference in the contents of sanction order and draft sanction order." From the examination and cross examination no incidence / occurrence is shown suggesting non application of mind.

473. The arguments that PW1 Vazir Singh did not ask M/s. V. V. Minerals to confirm the payment of Rs. 4,13,000/­ and from A­1 about its return which creates doubt qua fairness of process are infact argument in vain even to the knowledge of ld. Counsel. Firstly, since the acceptance of D/D itself is not disputed either by A­1 or A­4. Secondly it is not shown under the duty of witness to enquire from outside, for such facts, since the matter is placed after inquiry by CBI and is only for sanction. It is not the duty of Sanctioning Authority to investigate into allegation independently which fact is also volunteered by PW­1 who stated that his duty was to convey the sanction and not to investigate. The witness again reiterated that the sanction was based on due application of mind of all the material placed and submitted by CBI which preposition could not be controverted.

474. Time and again while laying down the preposition pertaining to the sanction, the Hon'ble Courts have held that where the facts constitute due application of mind, the courts dealing with such matters should be conscious in interfering with such orders. It be observed that from the material placed, it is no where pointed out that the sanction order was 'mechanical' or 'cryptic'. The perusal of the sanction order Ex.PW1/A R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 254 of 264 suggests the details upon which due consideration has been made and accordingly no contrary ground is available to presume otherwise.

475. My aforesaid observations are further strengthened by law laid down in State of Maharashtra Vs. Mahesh G. Jain (2013) 8 SCC 119 wherein while relying the following is observed:

"9. In Superintendent of Police (C.B.I.) v. Deepak Chowdhary and others5 it has been ruled that the grant of sanction is only an administrative function,though it is true that the accused may be saddled with the liability to be prosecuted in a court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Primafacie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant or refuse to grant sanction.

11. In R. Sundararajan v. State by DSP, SPE, CBI,Chennai7, while dealing with the validity of the order of sanction, the two learned Judges have expressed thus: ­"it may be mentioned that we cannot look in to the adequacy or inadequacy of the material before the sanctioning authority and we cannot sit as a court of appeal over the sanction order. The order granting sanction shows that all the available materials were placed before the sanctioning authority who considered the same in great detail. Only because some of the said materials could not be proved, the same by itself, in our opinion, would not vitiate the order of sanction. In fact in this case there was abundant material before the sanctioning authority, and hence we do not agree that the sanction order was in any way vitiated.

13.In Kootha Perumal v. State through Inspector of Police, Vigilance and Anti­Corruption9, it has been opined that the sanctioning authority when grants sanction on an examination of the statements of the witnesses as also the material on record, it can safely be concluded that the sanctioning authority has duly recorded its satisfaction and, therefore, the sanction order is valid.

14.From the aforesaid authorities the following principles can be R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 255 of 264 culled out: ­

(a)It is incumbent on the prosecution to prove that the valid sanction has been granted by the sanctioning authority after being satisfied that a case for sanction has been made out.

(b)The sanction order may expressly show that the sanctioning authority has perused the material placed before him and, after consideration of the circumstances, has granted sanction for prosecution.

(c)The prosecution may prove by adducing the evidence that the material was placed before the sanctioning authority and his satisfaction was arrived at upon perusal of the material placed before him.

(d)Grant of sanction is only an administrative function and the sanctioning authority is required to prima facie reach the satisfaction that relevant facts would constitute the offence.

(e)The adequacy of material placed before the sanctioning authority cannot be gone into by the court as it does not sit in appeal over the sanction order.

(f)If the sanctioning authority has perused all the materials placed before him and some of them have not been proved that would not vitiate the order of sanction.

(g)The order of sanction is a pre­requisite as it is intended to provide a safeguard to public servant against frivolous and vexatious litigants, but simultaneously an order of sanction should not be construed in a pedantic manner and there should not be a hyper­ technical approach to test its validity."

476. Further in Shiv Raj Singh Vs. Delhi Administration 1968 AIR 1419 the following observation is made:

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"10. Sup.C.I­68­13 also referred to the evidence of P.W. 9, Sub­Inspector, Ascharaj Lal who said that "all the papers relating to the case were sent to the D.I.G." When cross­ examined, he­ could not say which were the documents which were sent to the D.I.G. because they were in a sealed cover. In our opinion, there is no substance in the argument put forward by Mr. Chagla on behalf of the appellant. The Order of sanction dated December 10, 1963 shows on the face of it what were the facts constituting the offence charged and that a prima facie case was made out against the appellant. The Order also further recites that Mr. M. P. Singh, D.I.G., "after fully and carefully"

examining the material before him in regard to the "aforesaid allegations" in the case, considers that a prima facie case is made against the appellant. It is manifest that the decision of the Judicial Committee has no application to the present case, for the order of sanction in that case was much more cryptic and materially different. We are satisfied that the order of sanction in the present case fulfils the requirements of S. 6 of the Prevention of Corruption Act. We accordingly reject the argument of Mr. Chagla on this aspect of the case. We are unable to accept this argument as correct. When a public servant is charged under s. 161, Indian Penal Code and it is alleged that the illegal grati­ fication was taken by him for doing or procuring an official act, it is not necessary for the Court to consider whether or not the accused public servant was capable of doing or intended to do such an act: see the decision of this Court in Mahesh Prasad v. The State of Uttar Pradesh(1).

477. Again in State of Gujarat Vs. Mansurbhai Motibhai Damor (1996) 3 GLR 620, the following observation is reproduced :

"10. It was next contended by Mr. Budhbhatti that there is no proof of legal and valid sanction on record. The alleged sanction Exh. 15 according to Mr. Budhbhatti was mechanically signed without sanctioning authority applying mind, by sanctioning the prepared draft forwarded by the learned P.P. for the purpose. According to Mr. Budhbhatti, this was quite evident from the fact that few words written at the top of the sanction were just scored off and the rest of the draft as it is was duly signed. In substance, according to Mr. Budhbhatti, in absence of legal and valid sanction, the trial stands ab initio vitiated. Now, there is indeed no substance in this point also. Mr. Budhbhatti submitted R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 257 of 264 that sanction Exh. 15 was mechanical and shows total non­ application of mind of the sanctioning authority. In support of this, he submitted that the sanctioning authority has done nothing except mechanically putting the signature below the prepared draft sent by the learned P.P. Making good this submission, he invited our attention to the top of the sanction letter (Ex. 15), wherein in Gujarati, it has been stated "prosecution no mussado" meaning thereby the draft submitted by the prosecution. It appears that when it was asked to be typed out, the typist somehow inadvertently appears to have typed whatever was there in the original draft and since in the original draft sent by the learned P.P. it was stated "prosecution no mussado" that has also been mechanically typed out and reproduced! But then this particular portion is scored out and an initial is also placed therebelow. This clearly shows the application of mind. Had it been non­application of mind, this particular portion would not have been scored off and further duly initialled. Further, we would like to make it clear that merely because the Investigating Agnecy had forwarded the prepared sanction draft that by itself is not sufficient to infer and brand it as having been granted mechanically unless it is shown that while sanctioning the prosecution, the concerned authority had no relevant papers before him to apply mind to it to grant sanction. No such point was raised either before the trial Court and even before us. Therefore, there is indeed no substance in the submission of Mr. Budhbhatti."

478. Hence, in view above, nothing is suggested from the material placed on record that the sanction order suffers from perversity or is liable to be set aside.

A­1 is habitual offender

479. A­1, besides other offences, is also charged u/s 13(1)(e) PC Act for being habitual. It is argued vehemently by the ld. Sr.PP that accused has been found guilty in offences arising out of RC No.217/2013/A0001/SPE/ACU­VI/CBI/New Delhi pertaining to Sec. 7, 8, 12 and 13(2) read with Section 13(1)(d) of PC Act and 120B IPC. It is R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 258 of 264 stated that during the pendency of investigation of the present case the IO collected necessary material which was proved through the statement of PW­34 IO Shobha Dutta dated 01.02.2014 who exhibited the relevant order of charge framed in RC 217/2013/A0001/ACU­IV/New Delhi by ld. Sh. V.K. Gupta, the then Spl. Judge, CBI as well as charge dated 10.02.2014 as Ex.PW34/B and Ex.PW34/C respectively. It is stated that during the pendency of the present trial the finding of guilt is reached against A­1 vide judgment dated 12.10.2017 of Sh. N.K. Malhotra, the then, ld. Special Judge (PC Act) CBI, who had also passed the order on sentence dated 24.10.2017, whereby, the accused has been sentenced to under go RI of three years and fine of Rs.50,000/­ U/s 120B IPC r/w Sec. 7,8,12 and 13(2) r/w/ Sec. 13(1)(d) PC Act, in default of fine, further SI for a period of six months. It is averred that subsequent thereto, prosecution has successfully proved the charge against the accused for being habitually involved in offences falling under the purview of PC Act for which he should be given enhanced punishment, as prescribed under the statute.

480. On the other hand, Sh. Ajit Kumar Singh, ld. Counsel arguing on behalf of A­1 submitted that accused has been found guilty under Section 7 of P.C. Act, however, the present case does not revolve around the same provision and despite his being charged under Sec. 7 P.C. Act, the prosecution has failed to prove his involvement and hence, he cannot be subjected to any enhanced punishment since the charge u/s 13(1)(a) is not proved.

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481. It is worthwhile to note that the certified copy of the judgment and order on sentence dated 12.10.2017 and 24.10.2017 were placed on record through an application which was allowed vide order dated 10.12.2020. The prosecution then called PW Devesh Kumar to prove the certified copy who exhibited the certified copy as Ex.P­1 having been obtained by CBI against payment of prescribed fee and on due procedure. There was no cross­examination to this witness and the certified copy of the judgment and order on sentence then was not disputed, though, an attempt was made earlier during the submissions by ld. Counsels for accused claiming that they dispute and deny the contents of the certified copy of the judgment placed on record by the prosecution. As the certified copy was duly proved, the fact that accused has suffered earlier conviction for his being involved in an offence pertaining to corruption and is being sentenced under the relevant provision by the ld. Spl Judge (PC Act) was established. The said fact was also admitted by accused in his statement of accused.

482. Subsequent to the statement of accused, A­1 sought opportunity to lead DE and in his statement placed on record the copy of the orders of Hon'ble High Court dated 15.11.2017 and 13.12.2017. These were exhibited as Ex.DW2/2 (colly). In view of the clear provision of Sec. 74 of the Evidence Act, orders of Hon'ble High Court were not requisited to be separately proved and are admissible evidence. The accused through counsel Sh. Harsh Kumar Sharma, who has filed the appeal then placed photocopy of the appeal which is self attested and stated that the contents R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 260 of 264 of the appeal have been drafted at his instance/instructions by his counsel, whose signatures he also identified thereupon. Though, the prosecutor objected to the same, he did not raise any further question in cross­ examination to doubt the veracity of the copy of the appeal. The copy of the appeal which is signed and subscribed as such by the accused himself at whose instructions and instance the appeal is filed, cannot be doubted. For want of any cross­examination qua the contents of appeal to doubt the probability of his statement and provability of the copy of the appeal, the objection of prosecution appears to be a weak resistance, in view of which, I do not find much resistance to the fact that accused has filed the appeal, the copy of which, he exhibited as Ex.DW2/1.

483. The question then was raised that the judgment of conviction passed by ld. Spl Judge Sh. N.K. Malhotra has not attained finality and is stayed. No dispute or resistance to this submission is raised by prosecution, whereafter, ld. Sr.PP sought permission to withdraw his argument on the above charge, whereafter, no further submissions were put forth.

484. However, as the issue and dispute i.e. the fact of A­1 being charged as habitual offender has already been considered and evidence to support and counter the same have been brought, in this background, it is deemed fit that the present charge/allegation is taken to its logical conclusion. Though, the factum of proceedings arising against A­1 u/s 7, 8, 12, 13(1)

(d) r/w 13(2) P.C. Act and his being charged initially under above mentioned provisions and later on having been convicted under them is established, the fact that conviction order is under challenge and has not R/CC No. 199/2019 CBI vs. Neeraj Khatri & ors. Page 261 of 264 yet become final and that accused is appearing and contesting the same in appeal is also a fact affirmed. In this background, where the conviction has not attained finality, it would give rise to a detrimental assumption if the accused is pronounced guilty u/s 13(1)(a) P.C. Act as the allegations are not fully supported for the same. Hence, at this stage, it is observed that the charge u/s 13(1)(a) P.C. Act is not duly and fully proved by prosecution, due to which, accused cannot be held liable for enhanced punishment thereunder. However, A­1 Neeraj Khatri is acquitted of charge framed u/s 13(1)(a) PC Act for want of sufficient proof.

485. Since it has been now concluded beyond shadows of all reasonable doubts that A­1 Neeraj Khatri demanded and accepted illegal gratification of Rs.4,13,000/­ in the form of a DD in the name of VIT University for securing admission of his son Siddharth Khatri and that, being a public servant had obtained valuable things namely Air Tickets for himself and his son Sidharth Khatri from New Delhi to Chennai from A­2 S. Vaikudarajan (Managing Partner of A­4 M/s V.V. Minerals) through A­3 Ms. Subbulakshmi (employee of A­4) to expedite environmental clearance of SEZ project of A­4 M/s V.V. Minerals at Tiruvembalapuram Village, Radhapuram Taluk, Tirunelveli District, Tamil Nadu, so, I accordingly hold them guilty of the offences u/s 120B IPC and u/s 7, 11, 12, 13(2) r/w Sec.13(1)(d) of PC Act and convict them thereunder besides also convicting them for the substantive offences as already discussed in the earlier part of the judgment. A­2, A­3 and A­4 are also held guilty u/s 12 for abetting A­1.

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486. In view of the detailed discussion and the conclusions drawn by me hereinabove, my final conclusions as regards various offences for which charges were framed against the accused persons may be now summarized as under :

 S.      Name of accused           Charges Framed                Final
 No.                                                             decision
                           Charges                Charges
                           common to all          separately
                                                  framed
  1      A­1 Neeraj Khatri 120B IPC               13(2)    r/w   Convicted
                                                  13(1)(a) and   for        the
                           7,11,12,13(2)          13(1)(d) PC    offence u/s
                           r/w 13(1)(a)           Act            120B      IPC
                           and 13(1)(d) PC                       and
                           Act                                   7,11,12,13(2)
                                                                 and 13(1)(d)
                                                                 PC Act
                                                                 Acquitted
                                                                 for        the
                                                                 offence u/s
                                                                 13(1)(a) PC
                                                                 Act
  2      A­2           S. 120B IPC         12 PC Act             Convicted
         Vaikundarajan                                           for        the
                          7,11,12,13(2)                          offence u/s
                          r/w     13(1)(a)                       120B      IPC
                          and 13(1)(d) PC                        and
                          Act                                    7,11,12,13(2)
                                                                 and 13(1)(d)
                                                                 PC Act
  3      A­3             120B IPC         12 PC Act              Convicted
         Ms.Subbulakshmi                                         for        the
                         7,11,12,13(2)                           offence u/s
                         r/w     13(1)(a)                        120B      IPC

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                           and 13(1)(d) PC                    and
                          Act                                7,11,12,13(2)
                                                             and 13(1)(d)
                                                             PC Act
 4      A­4 M/s      V.V. 120B IPC               12 PC Act   Convicted
        Minerals                                             for        the
                          7,11,12,13(2)                      offence u/s
                          r/w     13(1)(a)                   120B      IPC
                          and 13(1)(d) PC                    and
                          Act                                7,11,12,13(2)
                                                             and 13(1)(d)
                                                             PC Act




Announced in the open Court                        (Nirja Bhatia)
on 1st of February, 2021                    Spl. Judge (PC Act) CBI­03
                                            Rouse Avenue District Courts,
                                                     New Delhi




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