Delhi District Court
Cbi vs Rajesh Kumar Khatri on 11 September, 2024
IN THE COURT OF SPECIAL JUDGE:
PC ACT (CBI) - 04, ROUSE AVENUE DISTRICT COURTS,
NEW DELHI.
CNR No. DLCT11-001546-2019
CC No.250/2019
R.C. DAI 2018-A-0029-DLI
CBI/ACB/ND
Under Section 7 of
Prevention of Corruption Act 1988
CENTRAL BUREAU OF INVESTIGATION (CBI)
VERSUS
RAJESH KUMAR KHATRI
S/O late Jaidev Singh
R/O Flat No. 802, Ist Floor, Type-IV, Laxmi Bai Nagar
New Delhi.
(PUBLIC SERVANT)
Date of Institution : 03.05.2019
Arguments concluded on : 30.07.2024
Date of Judgment : 11.09.2024
JUDGMENT
FACTUAL MATRIX OF THE CASE COMPLAINT
1. The present case was registered by the Central Bureau of Investigation (CBI) on the basis of written complaint dated CC No. 250/2019 Page 1 of 98 13-09-2018 filed before Superintendent of Police (SP), CBI, ACB, New Delhi, by Sh. Janak Sharma (hereinafter referred to as 'Complainant'). It was alleged that his firm Ms Panchsheel Pharmaceuticals is the authorised liasioner of Indian Medicines Pharmaceuticals Corporation Ltd (hereinafter in short as "IMPCL" ), Mohan Nagar (via Ramnagar), Almora, Uttrakhand to perform the liasioning work with various government departments. He further alleged that the bills pertaining to M/s Panchsheel Pharmaceuticals Ltd were pending since long for approval with Rajesh Kumar Khatri ( Accused), who was the Under Secretary as well as having additional charge of Managing Director , IMPCL. The accused was demanding bribe of Rs.30 lacs for passing the said pending bills of M/s Panchsheel Pharmaceuticals as well as further continuation of business by the complainant with IMPCL.
1.1 It was further alleged that the accused was causing delay in passing the bills and further demanding bribe of 2% of total business in future. The accused even threatened the complainant if the demand of bribe amount was not met, he would engage some other firm for performing the work being done by M/s Panchsheel Pharmaceuticals.
VERIFICATION 1.2 The verification proceedings qua the said complaint was carried out by SI Umesh from CBI, ACB, Delhi on 13.09.2018 in the presence of independent witness Sh. Chaman Prakash and complainant. It confirmed the demand of bribe of Rs. 20 lacs on the part of the accused, Under-Secretary/Managing Director, IMPCL. During the verification of the complaint, the CC No. 250/2019 Page 2 of 98 conversation took place between the accused and complainant Janak Sharma at Sagar Ratna Restaurant , Ashoka Hotel , New Delhi. The said conversation was recorded in a memory card (Mark Q-1) through a DVR. The said recorded conversation established the demand of bribe of Rs.20,00,000/- (Rs.20 lacs) after bargaining between the accused and the complainant. The transcription of conversation (Q-1) has been quoted in para- 16.8 of the chargesheet. Accordingly the FIR was registered for the offence u/s 7 of PC Act on 14.09.2018.
PRE-TRAP & TRAP PROCEEDINGS 1.3 On 14.09.2018, a trap team comprising of Inspector Sanjay Upadhyay, Trap Laying Officer (TLO), Anand Sarup, Praveen Kumar, Ajay Kumar Singh, Ram Kumar Shukla, Harnam Singh, Nikesh Kumar ( all inspectors), SI Umesh from CBI, ACB, Delhi, complainant and two independent witnesses namely Chaman Prakash and Om Prakash was constituted. The said trap team assembled at CBI, ACB Office and the purpose of assembly was explained to all. The complainant Janak Sharma produced the bribe amount of Rs.10 lacs, the denomination and other details of the same were recorded in Handing Over Memo dated 14.09.2018. The GC notes produced by Complainant Janak Sharma were then treated with phenolphthalein powder. Thereafter, the demonstration showing significance of phenolphthalein powder and its chemical reaction with solution of sodium carbonate and water was given to all the team members.
1.4 Thereafter, the personal search of the Complainant Janak Sharma was conducted by the independent witness and he was CC No. 250/2019 Page 3 of 98 not allowed to keep anything incriminating with him except his mobile phone. Thereafter, the tainted bribe amount of Rs. 10 lacs was put in a carry bag which too was treated with Phenolphthalein Powder. The said carry bag containing the bribe amount was then put in a black colour leatherite bag of the complainant by the independent witness Sh. Om Prakash. The complainant was directed not to touch the said tainted bribe amount and to hand over the same to accused Rajesh Kumar Khatri on his specific demand or on his specific direction to some other person.
1.5 A new blank memory card was inserted in a DVR and introductory voices of both the witnesses Sh. Chaman Prakash and Sh. Om Prakash were recorded. Complainant Janak Sharma was directed to give a pre-decided signal immediately after the transaction of bribe i.e by rubbing his head or giving a missed call on the phone of TLO or putting on the parking lights of car. All the pre-trap proceedings were recorded in detail in the Handing Over Memo. Thereafter, the trap team reached near the office of the accused. The DVR was put on recording mode and was handed over to complainant Janak Sharma to record the likely conversation between him and the accused. The complainant having parked his vehicle in the parking area near the office of the accused, made a call to him and informed him that he had reached the office of the accused and was waiting for him. The said conversation was recorded in the memory card through DVR. After some time, the accused carrying a jute bag came and sat on the left side front seat of the car of the complainant.
CC No. 250/2019 Page 4 of 981.6 Thereafter, the complainant alongwith accused Rajesh Kumar Khatri left the spot in the car and moved towards the residence of accused. On the way, accused asked the complainant about the bribe money. The complainant told that he had brought today only Rs.10 lacs out of Rs. 20 lacs and he would pay rest of the amount after clearance of the pending bills. The accused agreed to accept the bribe money from the complainant. Thereafter, complainant took the bag containing bribe money of Rs. 10 lacs and handed over the same to accused who received the same and kept it in his jute bag. During the discussion, the complainant also asked the accused to note down the date of receiving the bribe amount of Rs.10 lacs i.e 14.09.2018. Complainant also requested the accused to clear the pending bills of his firm and accused assured that the same would be done on coming Monday. The trap team members alongwith independent witnesses followed them in discreet manner. Thereafter, the car of the complainant reached Laxmi Bai Nagar area and stopped near Quarter No. 802 of accused Rajesh Kumar Khatri. The parking lights of the car of the complainant were blinking which was the indication of transaction of bribe money. The accused Rajesh Kumar Khatri got down from the car carrying the bag containing tainted bribe money in his hand. At that time, the TLO chased the accused and before the accused could reach his residential quarter, he was stopped by the TLO and caught hold by Inspector Raman Kumar Shukla and Inspector Nikesh Upadhyay.
POST TRAP PROCEEDINGS 1.7 The complainant informed that accused had accepted tainted bribe amount of Rs. 10 lacs in his car and had kept in his CC No. 250/2019 Page 5 of 98 jute bag. Independent witness Om Prakash took the jute bag and its zip was opened in which bribe amount was kept. The said bribe amount was taken out from carry bag by other independent witness Chaman Prakash. The denomination and serial numbers of recovered bribe amount were checked. Thereafter, the bribe amount was sealed on the spot in the presence of all.
1.8 The washes i.e right hand wash, left hand wash, jute bag wash of accused Rajesh Kumar Khatri were taken separately in fresh colour-less solution of sodium carbonate and the solution turned pink in colour. These washes were transferred in separate neat and clean glass bottles and the same were sealed with CBI seal separately on the spot in the presence of all. The same was also signed by both the independent witnesses and TLO . Thereafter, a site plan was prepared. Thereafter, the CBI team alongwith the complainant, both independent witnesses and accused Rajesh Kumar Khatri left the spot and reached CBI office. The post trap proceedings like hearing of recorded conversation, recording of specimen voices of accused and complainant in the memory cards marked S-1 and C-1 respectively, sealing of memory cards etc were conducted at the CBI office. The memory card used for recording the conversation between the complainant Janak Sharma and the accused was played which confirmed the demand and acceptance of bribe by accused Rajesh Kumar Khatri. The memory card was taken out from the DVR and was then sealed by using CBI seal.
1.9 The transcript of conversation during trap proceedings (Q-2) was prepared accordingly.
CC No. 250/2019 Page 6 of 981.10 During the course of investigation, CAF and CDR of mobile phones of accused as well as complainant were obtained from the service provider. Mobile no. 9990001045 belonged to accused Rajesh Kumar Khatri and mobile no. 9818445190 belonged to complainant Janak Sharma. As per the call details of the said mobile numbers, it transpired that the conversation took place between the complainant and accused on 13.09.2018 and 14.09.2018 during verification and trap proceedings.
1.11 As part of further investigation, transcript of the recorded conversations between complainant and accused was prepared in the presence of independent witnesses. Sealed bottles containing hand washes and jute bag wash of accused were sent to CFSL New Delhi for opinion. The presence of Phenolphthalein was confirmed by CFSL opinion No. CFSL-2018/C-1011 dated 05.10.2018 in all the three bottles containing both hand washes and jute bag wash of accused. The original memory cards marked Q-1 and Q-2, S-1 and DVR in sealed condition too were sent for CFSL, New Delhi. FSL result was received which corroborates the voice of accused in it.
CHARGESHEET & SANCTION
2. After the completion of the investigation, the chargesheet has been filed wherein it is stated that the facts disclose the commission of offence punishable under Section 7 of PC Act 1988 by accused Rajesh Kumar Khatri, Under Secretary, Ministry of Ayush having Addl. Charge of M.D, Indian Medicine Pharmaceutical Ltd, Ayush Bhavan, CGO Complex, INA, New Delhi. The sanction for prosecution of accused has been obtained from competent authority which too has been enclosed with the CC No. 250/2019 Page 7 of 98 chargesheet.
CHARGE
3. The Ld. Predecessor took cognizance of the offence on 25.05.2019 and accused was, accordingly, summoned. After supplying the copies and hearing the arguments on charge, charge was framed against the accused on 02.02.2021 for the offence punishable U/s 7 of Prevention of Corruption Act, 1988 to which the accused Rajesh Kumar Khatri pleaded not guilty and claimed trial.
3.1 The prosecution in order to prove its case examined 12 witnesses following which statement of accused under Section 313 Cr.P.C was recorded on 21.10.2023 in which he chose to lead evidence in defence. Accused has examined one witness in his defence.
PROSECUTION WITNESSES
4. Sh. Saurabh Aggarwal (PW-1), Alternate Nodal Officer, Vodafone Idea Ltd proved the letter dated 27.09.2017 as Ex.PW- 1/A vide which he had provided certified copy of CDR and Location Chart of Delhi Circle of Mobile Nos. 98184 45190 and 9990001045 for the period 12.09.2018 to 15.09.2018 alongwith CAF of the said post-paid mobile numbers. He further proved the CAF of mobile no. 9818445190 in the name of Janak Raj Sharma alongwith copies of documents submitted by applicant as Ex.PW-1/B (collectively) and its CDR as Ex.PW-1/C (collectively). PW-1 further proved the CAF of mobile no. 9990001045 in the name of Rajesh Kumar Khatri alongwith copies of documents submitted by the applicant as Ex.PW-1/D and CDR as Ex.PW-1/E. CC No. 250/2019 Page 8 of 98 4.1 PW-1 further proved the certificate under Section 65-B of the Indian Evidence Act as Ex.PW-1/F. He had also handed over the Vodafone Delhi Cell I.D Chart to the I.O and proved the same as Ex.PW-1/G.
5. Janak Sharma (PW-2) is the complainant/star witness in the present case. He deposed that he is in the business of Pharmaceutical being run in the name of M/s Panchsheel Pharmaceutical. His firm is Authorised Liasioner for M/s Indian Medicines Pharmaceutical Corporation Ltd (IMPCL) to perform liasioning work with various government departments since the year 2009 on commission basis. He further deposed that in their dealing with IMPCL, they used to raise Online bills at Ram Nagar, Uttrakhand office and Rajesh Khatri who was the then MD of IMPCL was the final authority for clearance of the bills.
5.1 PW-2 further deposed that he approached the CBI on 13.09.2018 as he had submitted four bills on 04.06.2018 online, amounting to Rs.82 lacs with IMPCL, but the same were not cleared. He contacted the accounts department of IMPCL, wherein he was asked to contact MD for getting the bills cleared. On 06.09.2018, he met the accused and asked him to clear the bills. PW-2 again met the accused on 13.09.2018 and accused told him that his agreement stood cancelled. The accused also told that bills cannot be passed like that and made a demand of bribe of Rs.30 lacs. Thereafter, he went to CBI office and submitted written complaint on 13.09.2018 itself. He proved the said complaint as Ex.PW-2/1.
5.2 PW-2 further deposed that he called the accused and fixed CC No. 250/2019 Page 9 of 98 a meeting with him at about 5/5:15 p.m. Thereafter, CBI officials constituted one team comprising independent witness Chaman Lal, SI Umesh Kumar and Inspector Shukla. PW-2 was explained the procedure of recording the conversation and one DVR was kept in the pocket of his pants. PW-2 met the accused and asked him to sit in his car. He further deposed that they then went to Sagar Ratna (Ashoka Hotel) where accused demanded Rs.30 lacs for work till December 2018 and 2% of total turnover of his firm for liasoning work of other States. After much negotiation, the accused agreed for Rs.20 lacs by saying "kamse kam 20 toh de do". He further deposed that the accused further assured him that he would clear the bills once the payment was made. Thereafter, he dropped the accused at his residence at INA, Kidwai Nagar. PW-2 further deposed that he thereafter went to CBI office where he handed over the DVR to SI Umesh. He also signed certain documents .The DVR was seized in some plastic cover and DVR was kept in a brown envelope and sealed with the CBI brass seal. The said seal was handed over to independent witness Sh. Chaman Lal. PW-2 identified his signatures on the verification memo dated 13.09.2018 (D-3) Ex.PW-2/2.
5.3 PW-2 further deposed that he was directed to bring money on the next day by 2 p.m. On 14.09.2018, he reached the CBI office alongwith Rs.10 lacs in a polythene bag captioned "Devgan Sons". The GC notes comprised of 300 GC notes of 2000/- denomination and 800 GC notes of Rs.500/- denomination. Other team members including the independent witnesses were also present there. The currency notes were counted with the help of counting machine and the distinctive CC No. 250/2019 Page 10 of 98 number of every currency note was recorded in Handing over memo as Ex.PW-2/3 ( collectively).
5.4 PW-2 further deposed that thereafter demonstration with the help of phenolphthalein powder was given to him and independent witnesses. His personal search as well as personal search of independent witnesses was also conducted. The leather bag in which the polythene bag having caption Devgan Sons in which the treated money was handed over to him. Inspector Sanjay Upadhaya also prepared his kit. He was instructed to make some gesture like moving hands once the accused has taken the bribe amount or switch on the parking light of the car if the transaction takes place in the car. The DVR was also handed over to him. He alongwith Sanjay Upadhaya proceeded in his car and others in CBI vehicle. On the way, he called the accused to know his location and accused asked him to come in his office in 10-15 minutes. As they reached at the gate of the office, again call was made by keeping mobile on speaker mode and the accused asked him to wait downstairs as he will come within 10 minutes. He alone went in the office premises of the accused in the car. The switched on DVR car was kept in the left side pocket of his pant. The accused reached downstairs from his office in 5-10 minutes and was carrying one jute bag having his tiffin box. He sat next to him in the car and accused asked him to drop him at his residence at Laxmi Bai Nagar behind INA Metro. At a distance of around 100 metres from his house, accused asked him what is the message upon which PW told me "jo kal baat hui thi". Upon which accused asked him if he had brought the same. He replied in affirmative and while driving he picked the leather bag on the rear seat and asked the accused to take the packet from it. The accused took out the bag with his both hands CC No. 250/2019 Page 11 of 98 and placed it in his jute bag. He further told him that the packet has Rs.10 lacs and asked him to take note of receiving of the said amount. He further asked the accused to when his payment is going to be released. Accused stated that he need not worry that he will get the payment by Monday. Accused got down at his residence and he switched on the parking indicators light. Immediately, the CBI team gathered there and accused was held/caught by CBI Inspector Shukla and Upadhaya. Independent witness Om Prakash took out the packet of cash from the jute bag. The number of currency notes were tallied with the list already prepared. Left and Right wash of the accused were taken separately which turned pink in colour. Wash of the jute bag and plastic bag was also taken which also turned pink. Prior to that DVR was also taken from him. He also narrated all the facts to the CBI team. DVR was sealed separately and memory card was also sealed. Thereafter, he identified his signature on recovery memo Ex.PW-2/4.
5.5 He again joined the investigation after being called by Inspector S.P. Singh. His statement was recorded. He was also asked to identify certain narration after hearing the conversation. The transcript was also prepared. Thereafter, he identified signatures on voice-cum-identification transcript memo (D-8) as Ex.PW-2/5 (colly). He also identified signatures on voice-cum- identification transcript memo (D-9) as Ex.PW-2/6 collectively. Thereafter, memory card Q-1 used during verification proceedings was shown to the witnesses who identified his signatures on the envelope, original cover, plastic cover as Ex.PW-2/7, Ex.PW-2/8 and Ex.PW-2/9 respectively. Thereafter, he identified the voices in the recorded conversation. Similarly, CC No. 250/2019 Page 12 of 98 he identified the recorded conversation in Ex.P-2 (Q-2). He also identified specimen voice of accused recorded in memory card S-1. He also identified his own specimen voice in memory card C-1.
6. Chaman Prakash (PW-3)( Independent witness/shadow witness ) deposed that he was working with Directorate of Health Services, Dispensary Building, Laxmi Nagar, New Delhi as Junior Assistant in September 2018 and in the second week of September 2018 probably on 13th or 14th September, he attended CBI office in connection with the present case. At the CBI office, he was introduced with complainant namely Janak Sharma and was informed regarding the present case. One DVR with new memory card was arranged, his voice was recorded. PW-3 further deposed that at about 4:00 PM, he was asked to accompany the CBI team. Thereafter, they reached one government building Ayush Bhawan and words "Pharmaceutical" were mentioned on the said building. The complainant was asked by the team incharge to make a call to suspect. The complainant called the suspect who asked him to come to his office. He further deposed that the complainant went to office of the accused and after 15-20 minutes came out from the said building alongwith one person sitting next to the driver seat. Thereafter, they started following the car of complainant. The complainant reached Ashoka Hotel and they both went inside the restaurant. He alongwith team incharge also entered the said restaurant. PW-3 further deposed they too sat there nearby table maintaining some distance. After sometime, the complainant and that person left the restaurant. They again started following them. The complainant left the said person near CC No. 250/2019 Page 13 of 98 government quarters of Laxmi Bai Nagar, near INA. Thereafter the In-charge of the team (SI) asked the complainant to reach CBI office. At CBI office, the complainant narrated that the suspect officer during negotiations reduced his demand from Rs. 30 lacs to Rs.20 lacs and agreed for 2% share for future business. The DVR was taken back from the complainant and the recording contained in that DRV was played which matched with the version . The memory card was taken out from the DVR and was separately sealed and the DVR was also sealed in separate envelopes. He was handed over CBI brass seal. Thereafter, he was asked to attend CBI office on the next day.
6.1 PW-3 further deposed that he attended CBI office on the next day. A team consisting 7-8 persons including complainant and one more government official namely Om Prakash was already there led by Inspector Sanjay. Contents of the complaint were explained to all and they were given demonstration by mixing some salt in a solution. After completing pre-trap proceedings, they left the CBI office. The complainant was alone in his car. On the remaining aspects as to the proceedings of the trap carried out at the CBI office and thereafter at the spot, he has deposed on the lines of statement given by complainant Janak Sharma (PW-2).
6.2 PW-3 identified his signatures / proved verification memo dated 13.09.2018 (D-3) Ex.PW2/2, Handing Over Memo dated 14.09.2018 (D-4) Ex.PW2/3, Voice Identification cum Transcription Memo alongwith Transcript dated 17.10.2018 (D-
9) Ex.PW2/6, Voice Identification cum Transcription Memo alongwith Transcript dated 17.10.2018 (D-8) Ex.PW2/5 and CC No. 250/2019 Page 14 of 98 Recovery Memo (D-5) Ex.PW2/4. He also proved the rough site plan (D-7) Ex.PW3/1. He also identified his signatures on the hand wash bottles i.e RHW, LHW and BWA. He further identified his signature on the envelope having trap money as Ex.P-4/1. He also identified his signatures on the jute bag Ex.P- 5/1 and one white colour cloth bag containing currency notes Ex.P-6/1. He also produced the CBI brass seal Ex.C-1 handed over to him at the spot.
7. Sh. Om Prakash (PW-4) ( Independent witness ), Junior Assistant, Directorate General of Health Services, Govt of NCT deposed that he attended the CBI office in the present case for the first time on 13.09.2018 after receiving orders in writing from his office. On that day, he was asked to come to CBI office next day i.e 14.09.2018 at 9:30 AM by writing the date on the same order. He proved the said order Ex.PW4/1.
7.1 PW-4 further deposed that he reached the CBI office on 14.09.2018 at 9:30 A.M and he was asked to wait by the Duty Officer. At about 3 PM, he met Inspector Sanjay Upadhyay who told that he was the TLO. Inspector Sanjay Upadhyay introduced him with one Chaman Prakash, other witness and complainant Janak Sharma. PW-4 further deposed that he was informed about the case. He has deposed on the lines of PW-2 on the further sequence of events with respect to trap proceedings which took place at CBI office and at the spot.
7.2 After the apprehension of the accused near his residence at Laxmi Bai Nagar, he had taken the jute bag from the hands of accused and then PW-3 was asked to take out the currency notes CC No. 250/2019 Page 15 of 98 from the bag. He also proved the handing over memo Ex.PW- 2/3, recovery memo ExPW-2/4, arrest-cum-personal memo Ex.PW-4/2, rough site plan Ex.PW-3/1 and voice identification- cum transcription memo Ex. PW-2/6.
8. Ms. Deepti Bhargava (PW-5) ( FSL Chemical Expert) deposed that she had been working with CFSL as SSO-II (Chemistry) since December 2012. In the present case, vide letter no. DAI-2018-A-0029/11188 dated 20.09.2018, three sealed glass bottles marked as RHW, LHW and BWA were forwarded by the S.P, CBI, ACB, New Delhi to the Director, CFSL, New Delhi for chemical examination and expert opinion. She further stated that the said case was allotted to her on 26.09.2018.
8.1 PW-5 further deposed that at the time of examination, sealed impression on the sealed bottles were compared with the specimen seal impression forwarded by the Forwarding Authority and found matched and intact. She examined exhibits RHW, LHW and BWA through physico-chemical methods, chemical tests and thin layer chromatographic technique. After the examination, it was opined that exhibits RHW, LHW and BWA gave positive test for presence of phenolphthalein. She prepared the report Ex.PW-5/A and the remnants of exhibits in glass bottles were sealed with her official seal impression i.e D.B. CHEM. DIV.CFSL. NEW DELHI.
8.2 PW-5 also proved the letter through which the exhibits were received in the office of CFSL as Ex.PW-5/1. She indetified her signatures on bottles Ex.P1/1,P2/1, P3/1 i.e glass bottle CC No. 250/2019 Page 16 of 98 RHW, LHW and BWA respectively.
9. Amitosh Kumar (PW-6) ( FSL Expert ) is the Sr. Scientific Officer, Grade-II (Physics), CFSL, New Delhi who deposed that in the present case, a request letter from SP, CBI, ACB, New Delhi vide letter no. RC DAI-2018-A-0029/I 2267 dated 16.10.2018 Ex. PW6/A alongwith five sealed parcels, specimen seal impression and copy of rough transcription, was received on 16.10.2018.
9.1 PW-6 further deposed that the said case was allotted to him for examination. During the examination, he found that the parcel contained four micro SD Cards, one DVR marked as Ex.Q-1, Q-2, S-1, S-2 and DVR. Ex.Q-1 and Q-2 contained the questioned recorded conversations . S-1 and S-2 contained the specimen voice of Rajesh Khatri and Janak Sharma respectively. The questioned recorded conversations and the specimen voice were transferred to one instrument namely Speech Science Lab (SSL) for examination. It was opined that questioned voice marked Q-1 (1) (A), Q-1 (2) (A), Q-2(1) (A) and Q-2 (2) (A) and S-1 (1) (A) being similar and of the same person namely R.K. Khatri on the basis of auditory and voice spectrographic examination. It was further opined that questioned voice marked Q-1 (1) (B), Q-1 (2) (B), Q-2 (1) (B) and Q-2 (2) (B) and S-2 (1) (B) being similar and of the same person namely Sh. Janak Sharma on the basis of auditory and voice spectro-graphic examination. Thereafter, he prepared his detailed opinion report and sent the same to CBI, ACB, New Delhi through proper channel. Micro SD Cards and DVR were also sent to CBI with his original report. He proved his report as Ex.PW-6/B. CC No. 250/2019 Page 17 of 98 9.2 PW-6 further deposed that Ex. Q-1, Q-2, S-1 and S-2 were also examined for tampering and editing. After laboratory examination, it was found that the audio recordings contained in Q-1, Q-2, S-1 and S-2 are continuous and no tampering was detected.
10. Sanjay Upadhyay (PW-7) ( Trap Laying Officer (TLO) ) deposed that the FIR was entrusted to him by SP, ACB CBI for investigation against the accused who was working as Under Secretary, Ayush Bhawan, CGO Complex, New Delhi .He was also holding additional charge of Managing Director , IMPCL at Mohan Nagar, Uttarakhand. He received the FIR, verification report, original complaint and an envelope Q-1 in sealed condition from SP, ACB, CBI.
10.1 PW-7 further stated that he constituted a trap team comprising of Inspector Praveen Kumar, Inspector Nikesh Upadhyay, Inspector Raman Shukla, Inspector Harnam, SI Umesh and two independent witnesses namely Chaman Prakash and Om Prakash, both Junior Assistants. The said team members assembled in his chamber where contents of the complaint were read over to all and the purpose of assembly for laying trap was explained. Independent witness Chaman Prakash produced the CBI brass seal and the DVR handed over to him by the Verifying Officer. The demonstration and relevance of Phenolphthalein Powder was given by Inspector Praveen on the bribe amount of Rs.10 lacs brought by the complainant.
CC No. 250/2019 Page 18 of 9810.2 PW-7 further stated that the bribe amount comprised of 300 GC notes of Rs.2000/- and remaining 800 notes of Rs. 500/-. The personal search of the complainant was conducted by independent witness Chaman Prakash. Thereafter, treated currency notes of Rs.10 lacs were kept by independent witness Om Prakash in a bag brought by the complainant on which "Devgan Sons" was printed. The said bag too was treated with Phenolphthalein Powder. After instructions regarding trap proceedings to the members of the trap team, one trap kit was arranged. PW-7 also recorded all the said proceedings in the handing over memo and mentioned details of currency notes in Annexure-A and B . The said memo was signed by all the team members. PW-7 identified his signature on Ex.PW-2/3 (Part of D-4).
10.3 Thereafter, the complainant was instructed to give signal of transaction of bribe by rubbing both his hands on his face. One San Disk memory card was arranged which was inserted in the DVR and introductory voices of both the independent witness were recorded in it. PW-7 further deposed that thereafter, they left the CBI office at around 5 p.m for Laxmi Bai Nagar, New Delhi. After reaching Laxmi Bai Nagar, the complainant was asked to make the call to ascertain accused's location which was found to be at Ayush Bhavan. The said call was also recorded. Thereafter, the team was divided with one team comprising of himself, SI Umesh, Inspector Ajay, independent witness Chaman Prakash and complainant left for Ayush Bhavan and other team was asked to remain near the residence of accused. After reaching the Ayush Bhavan, the complainant went inside the building his own car and after sometime they saw the car of the CC No. 250/2019 Page 19 of 98 complainant coming out of the Ayush Bhavan with accused sitting next to him. They followed the said car which stopped near the residence of accused at Laxmi Bai Nagar. After blinking of the parking light of the car of complainant, the accused got down of the car having a bag in his car. They accordingly challenged him. Meanwhile, left wrist of accused was caught by Inspector Shukla and right by Nikesh Upadhaya. The bag carried by accused was taken by independent Om Prakash and other witness took bag having print Devgan Sons. The currency notes were then tallied with annexure A and B. The hand wash and bag wash was taken by preparing fresh solution of sodium carbonate and water. All the three solutions were separately were sealed in three bottles with CBI brass seal. The bag and the trap money was kept in the yellow envelope and yellow envelope was marked as tainted trap money. Rough site plan Ex.PW-3/1 was then prepared by Inspector Parveen. Thereafter, they left for CBI office where memory card was taken from DVR and investigating copy was prepared with help of Write-blocker. The original memory card Q-2 was then sealed with the CBI seal and the envelope was signed both the independent witnesses. The specimen voice of accused and complainant was separately recorded in two fresh memory cards. Accused thereafter was arrested vide arrest-cum-personal search memo Ex.PW-4/2. The DVR used during the trap was put in the envelope and was sealed with brass seal. The recovery memo Ex.PW-2/4 was prepared. The specimen of brass seal was also taken on blank paper and the seal was handed over to independent witness Chaman Prakash. The post trap proceedings were concluded at 11.45 p.m of 14.09.2018.
CC No. 250/2019 Page 20 of 9811. Inspector Umesh Kaushik (PW-8 )(Verification Officer) deposed that on 13.09.2018, SP CBI introduced him with the complainant Janak Sharma and shown him the complaint lodged by him. It was alleged that various bills of the firm of complainant M/s Panchsheet Pharamceutials were pending approval with accused working as MD IMPCL since long who was demanding Rs.30 lacs for passing the bills and bribe of 2% of total business in future.
11.1 PW-8 further deposed that in order to verify the complaint, he arranged one DVR, Memory Card and CBI brass seal. He also secured presence of one independent witnesses namely Chaman Prakash from DGHS, Govt of NCT of Delhi through Duty Officer. The complainant was introduced to the said independent witness. Thereafter, PW-8 alongwith complainant and independent witness left for the verification at the office of accused at Ayush Bhavan After reaching there, complainant made a call to accused to know about his location. During the call, accused informed that he will leave the office in 15 minutes.
11.2 The DVR in switched on mode was given to the complainant. The complainant went alone in the office of the accused at Ayush Bhavan. PW-8 and independent witness waited outside. PW-8 deposed that after some time, complainant's car was seen coming out of Ayush Bhavan and he was seen driving and one person was sitting next to him. They started following the said car. The complainant's car reached Ashok Hotel from where they were seen going to Sagar Ratna restaurant. PW-8 alongwith independent witness also entered the said restaurant and sat on nearby table. The conversation between the accused CC No. 250/2019 Page 21 of 98 and the complainant continued for about 40-45 minutes. Thereafter, complainant dropped the accused near INA. PW-8 then asked the complainant to reach CBI office.
11.3 PW-8 further deposed that at CBI office, the DVR was taken back from the complainant and switched off. Thereafter, complainant was asked to narrate the conversation. Complainant told that the accused had demanded Rs.30 lacs for clearing his bills and also demanded 2% of his total business in future with IMPCL. The recorded conversation was also heard which corroborated the version of the complainant. The memory card taken out from DVR ans sealed in an envelope with CBI brass seal which was marked Q-1 in CO36/18. The brass seal was handed over to independent witness Chaman Lal who was directed to report to CBI office the next day. Then, PW-8 prepared verification memo and verification proceedings completed at about 9:30 p.m. Thereafter, he submitted the verification memo with S.P. The Q-1 was deposited with Malkhana Incharge. On the basis of his verification report, the present RC was registered against the accused on 14.09.2018.
11.4 PW-8 further deposed that one trap team including complainant, CBI officers and independent witnesses namely Chaman Prakash and Om Prakash was constituted by Inspector Sanjay Upadhyay on the next day. He then deposed on the lines of PW-7 and other witnesses as to sequence of events and manner in which accused was apprehended.
11.5 PW-8 also identified his signature and proved verification memo as Ex.PW-2/2, handing over memo Ex.PW-2/3 CC No. 250/2019 Page 22 of 98 (collectively) and recovery memo Ex.PW-2/4. PW-8 also identified his signatures on envelope Ex.PW-2/7, memory card in its original cover Ex.PW2/8 and memory card Ex.PW2/9.
12. Arvind Kumar Aggarwal (PW-9), AGM Finance, IMPCL, Okhla Phase-I, Corporate Office, New Delhi deposed that in October 2018, he went to CBI office in connection with the present case after receiving a call from there. I.O made inquires from him with respect to any bill for which the present case arose. PW-9 further deposed that he told the I.O that there was no particular bill but there was target incentive bill on which they did not had any clarity . The said bill was accordingly sent to Marketing Department of IMPCL. The Marketing Department gave its comments on that bill, then it was sent to Incharge, IMPCL i.e accused. The accused then gave his comments and clarified that the said bill could not be cleared.
12.1 He further deposed that he had handed over three original bills with their original comments to the I.O which were seized vide seizure memo. PW-9 after seeing document D-12 identified his signatures on seizure memo as Ex.PW-9/A. 12.2 PW-9 further proved the original agreement dated 30.11.2017 between IMPCL and Panchsheel Pharmaceuticals, the certified copy of order dated 01.09.2016 and 09.09.2016, original IOC dated 22.06.2018 alongwith invoices as Ex.PW9/B (Colly.) He further deposed that these were the same documents which were given to the IO by him vide seizure memo Ex.PW- 9/A. CC No. 250/2019 Page 23 of 98 12.3 PW-9 further deposed that he again visited the CBI office around Diwali and he explained about the procedure of clearing the bill.
13. Dr. Manjeet Sinha (PW-10) ( Manager Marketing IMPCL ) deposed that he joined IMPCL in 2013 and worked there till 31.01.2022. In 2018, he was posted as Manager ( Marketing), IMPCL, Ram Nagar, Uttrakhand. He further deposed that he attended CBI office twice in connection to this case in October and November 2018. At the CBI office, he was asked about procedure of making payment of the bills and also about one agreement executed by the accused as MD of IMPCL with Panchsheel Pharmaceutical through Janak Raj Sharma. It was a combined agreement for all territories assigned to M/s Panchsheel Pharmaceuticals. He also handed over certain bills to the I.O which were seized by him vide Ex.PW-9/A and also signed by Arvind Kumar Aggarwal.
13.1 PW-10, after seeing page No. 83, 79, 85, 89, 91, 92, 93 of Ex.PW-9/B (collectively), identified his signatures on them.
13.2 PW-10 further explained that loan licensing arrangement is an arrangement under which IMPCL can get the medicines produced by an agency which do not fall under National Ayush Mission to expedite the production of medicines. This loan licensing arrangement was started in Financial Year 2017-2018. All the pending bills pertaining to Panchsheel Pharmaceuticals and agreements with Panchsheel Pharmaceutical were taken by them to CBI office.
CC No. 250/2019 Page 24 of 9814. Ms. Gracy Varghese (PW-11)(Sanctioning Authority) deposed that she was posted with Department of Personnel and Training in the year 2019 as Under Secretary, Govt of India. She further deposed that a proposal was received from CBI seeking prosecution sanction for prosecuting Rajesh Kumar Khatri. The entire material received from the CBI and the proposal was sent for consideration by the Competent Authority. The Competent Authority after perusing all the material decided to accord the sanction for prosecution of Sh. Rajesh Khatri. PW- 11 further stated that she being the conveying authority on behalf of Hon'ble President of India signed the sanction order for prosecution of R.K. Khatri. She got exhibited the sanction order as Ex.PW-11/A.
15. S. P. Singh (PW-12) is the second Investigating Officer (I.O.) who deposed that initially, the investigation of the present case was marked to Inspector Sanjay Upadhyay for laying trap/investigation. Thereafter, the present case was assigned to him on 19.09.2018. PW-12 further stated that thereafter he investigated the present matter and during the investigation, he collected CDR and CAF of mobiles of complainant and of accused from Mobile Service Provider. He also collected relevant file from A.K. Aggarwal, official from Marketing Department of IMPCL. He also recorded the statement of Nodal Officer, Mobile Company, Complainant, TLO, Sh. A.K. Aggarwal & Sh. Manjeet Sinha, officials from IMPCL etc. 15.1 PW-12 further deposed that during the examination of Sh. A.K. Aggarwal, the said witness informed that bill of complainant amounting to Rs.82 lacs approximately was CC No. 250/2019 Page 25 of 98 pending. Other witness Manjeet Sinha stated that agreement executed between M.D IMPCL and the complainant is silent on the point whether the bill once rejected by M.D of IMPCL can be again reviewed for payment or not.
15.2 PW-12 further deposed that during the investigation, he sent washes of accused as well as the bag to CFSL for expert opinion. He also sent conversation recorded during verification and trap proceedings Mark Q-1 and Q-2 and specimen voice of accused Mark as S-1 and specimen voice of complainant Mark as S-2 to CFSL for expert opinion. He also received the CFSL report qua washes. He prepared transcription of recorded conversations with the help of witnesses and also prepared voice identification-cum-transcription memo.
15.3 PW-12 deposed that during the course of investigation, he also obtained sanction qua the prosecution of accused from Sanctioning Authority. PW-12 further proved the FIR as Ex.PW- 12/1 and identified his signature on voice identification-cum- transcription memo dated 17.10.2018 alongwith Hindi Transcript contained in Q-1 already Ex.P2/5 (colly.) . He also identified his signatures on voice identification-cum-transcription memo dated 17.10.2018 alongwith Hindi Transcript of conversation contained in Q-2 Ex.P-2/6.
STATEMENT OF ACCUSED (S.A)
16. After the conclusion of the prosecution the statement of the accused was recorded u/s 313 CrPC wherein he denied the case of prosecution and claimed false implication.
CC No. 250/2019 Page 26 of 9816.1 He further claimed that complainant had earlier entered into agreement with IMPCL through "Panchsheel Pharma"
wherein his son was one of the partner. During the continuation of the said agreement, he (complainant) entered into another agreement with IMPCL under the name of "Panchsheel Pharmaceutical". The complainant in terms of his agreement with IMPCL was under the obligation to give interest free security of Rs.10 lacs and bank guarantee of Rs.20 lacs which he never deposited with IMPCL. The complainant was also pressurizing other institutional agents not to work for IMPCL.
16.2 He further claimed that complainant was receiving money which was meant for IMPCL in his account thereby causing financial losses to IMPCL and was also doing other irregularities. He pointed out all these irregularities to him and also served him show cause notices which were not replied by him. He also asked the complainant to deposit bank guarantee and interest free security, but he never fulfilled the said contractual obligations. The accused further claimed that during his tenure, tender was floated by IMPCL for appointing All India C & F. Only complainant's firm was found to be sole technically qualified bidder for the said tender and hence, the same was cancelled by the Committee of IMPCL headed by him (accused).
16.3 The accused further claimed that the agreement of complainant was already extended by IMPCL till March 2019. The complainant was also doing liasoning work with Delhi Government for Shree Dhanvantree Herbals & M/s Multani Pharmaceutical which was against the financial interest of IMPCL. Therefore, complainant cooked up a false case against CC No. 250/2019 Page 27 of 98 him on the basis of bills which were not even pending payment on the date of alleged complaint.
16.4 The accused further claimed that he never had authority to take any financial decision. He further stated that if the Finance Department wanted any clarity on the interpretation of the terms of the agreement pertaining to the financial entitlement of the concerned C& F or institutional agent, then after obtaining opinion of Marketing Department, only the noting containing query was forwarded to him for his opinion. He claimed innocence and false implication He chose to lead evidence in his defence.
DEFENCE EVIDENCE
17. In defence, the accused examined Sh. Rajbir Saroha as DW-1.
18. Rajbir Saroha (DW-1) is the proprietor of firm M/s Sunraj India which deals in pharmaceuticals. DW-1 deposed that he sent a request to IMPCL for taking him on board as Service Provider. M/s IMPCL authorised him as an Institutional Agent/Service Provider for its Ayurvedic and Unani Medicines vide letter dated 27.08.2017 Ex.DW-1/A. 18.1 DW-1 further deposed that after submitting his request with IMPCL, he came in contact with accused who was MD of IMPCL. He further stated that he knew Janak Sharma as he was earlier employed with MCD. He further deposed that on 31.08.2018, he had sent an email to R.K. Khatri (accused) as Ex.DW-1/B. CC No. 250/2019 Page 28 of 98 18.2 DW-1 further stated that he contacted the Field Officer of CCRAS and came to know that they were not receiving proper supply of medicines from IMPCl. He informed the Marketing Manager and Mr. Janak Sharma C & F to make proper supply of medicine. Thereafter, he also contacted the accused prior to sending mail dated 13.09.2018.
The defence evidence was then closed.
ARGUMENTS OF CBI
19. Ld. Senior (Sr.) Public Prosecutor (P.P) for CBI argued that they have proved their case against the accused beyond reasonable doubt under Section 7 of Prevention of Corruption Act,1988 (P.C Act). The accused herein was caught red-handed with Rs. 10 lacs on 14.09.2018. The crucial aspect of 'demand and acceptance of bribe' has been proved by their Star Witness/Complainant namely Janak Sharma (PW-2). The corroborative piece of evidence is the CFSL report of the chemical reaction of the use of phenolphthalein powder. It has been proved by Deepti Bhargava (PW-5) and the result of the same is 'positive'.
19.1 It has further been argued on behalf of CBI that another piece of corroborative evidence for proving the factum of 'demand and acceptance of bribe' is the voice recordings Q-1 and Q-2. The identity of the speaker in recordings Q-1 and Q-2 stands proved by expert Amitosh Kumar (PW-6) from CFSL, CBI through his report (Ex.PW-6/B).
19.2 Reliance is also placed by CBI on the transcription (part of CC No. 250/2019 Page 29 of 98 D-8) Ex.PW-2/5 and acceptance through D-9 (Ex.PW-2/6) . Hence, it is prayed that accused may be convicted for the offence punishable under Section 7 of PC Act 1988.
ARGUMENTS ON BEHALF OF THE ACCUSED:-
20. Per contra, Ld. Counsel for the accused argued that the very basis of the case of the prosecution is dubious and suspicious. The claim made in the complaint (un-dated) of the complainant Janak Sharma (PW-2) is regarding demand of bribe of Rs.30 lacs. After the verification, the prosecution has claimed the said demand was settled at Rs.20 lacs, but the charge-sheet states that the demand of bribe was Rs.10 lacs. The charge which has been framed against the accused herein is also for the 'demand and acceptance of bribe' of Rs.10 lacs. No explanation is offered as to when and how the said demand of Rs.10 lacs was settled by the accused with the complainant (PW-2).
20.1 It has been further argued on behalf of the accused that on the crucial aspect of demand of bribe, the sole witness produced by the prosecution is Janak Sharma (PW-2) who is the complainant. The other members of the team who had accompanied during verification of the complaint namely SI Umesh, Verifying Officer (PW-8) and independent witness Chaman Prakash (PW-3) admitted to the fact that they were not able to overhear the conversation between accused and the complainant on 13.09.2018. One another member Inspector Raman Shukla has not even been named herein by the prosecution as witness .
20.2 It has further been argued on behalf of the accused that the CC No. 250/2019 Page 30 of 98 entire case of the prosecution as well as the chargesheet is based on the premise that accused demanded Rs.30 lacs from the complainant in lieu of clearance his pending bills with IMPCL as well as continuing of his business with IMPCL for the period of agreement. But, the evidence which has come on record proves that as on 13.09.2018 , no bill of PW-2 (complainant) was pending with IMPCL. Therefore, the averments made in Para 16.5 of the chargesheet that approximately the bills to the tune of Rs. 82,75,368/- including GST were not approved and pending is false. To support the said argument, reliance has been placed upon the version of Arvind Kumar Aggarwal, AGM (Finance), IMPCL and Dr. Manjeet Sinha (PW-10), the then Manager (Marketing), IMPCL. Reliance is also place upon the RTI information received vide Ex.PW-9/D-2 ( colly).
20.3 Further, it has been argued with respect to the said bills in question that they were submitted for payment with IMPCL in June 2018. The said bills were processed and the payment qua the same already stood paid to the complainant in July 2018 itself. PW2 Janak Sharma admitted to the said fact in cross-
examination, but never disclosed this to the CBI during investigation. The Investigating Officer (I.O) too failed to verify the factum of release of of payment qua the bills submitted in June 2018 as he claims in the chargesheet that the bills were submitted in May 2018 and were pending. To support the said argument, reliance is placed upon the bills/Debit Notes which are part of D-12 (Ex.PW-9/B collectively).
20.4 Further, it has been argued on behalf of the accused that Janak Sharma (PW-2) while deposing before the Court has made CC No. 250/2019 Page 31 of 98 improvements on various aspects. He claimed that Rs.30 lacs was demanded for depot work till December 2018, 2% for liaisoning work of other States and 8% out of 10% for patents. This is in complete departure from his original complaint Ex.PW- 2/1.
20.5 Further, Ld. Counsel for the accused argued that the case on the version of PW-2 on the aspect of demand is also not corroborated by voice recording Q-1 as well as transcript of the same D-8. In the entire conversation Q-1, there are many missing parts which have been referred in the transcript either as Dash (-) or "अस्पष्ट" (Unclear). Rather, the transcript shows that there was some other dispute of M/s Panchsheel Pharmaceutical Ltd., partnership firm of the complainant with IMPCL and accused was demanding compliance of the terms of the agreement entered between IMPCL and M/s Panchsheel Pharmaceutical Ltd Ex.PW-9/B (collectively). Therefore, factum of demand of Rs. 20 lacs or Rs.30 lacs as bribe as has been claimed by prosecution being not clear from the voice recordings, the sole uncorroborated version of PW-2 who is interested and partisan witness cannot be acted upon.
20.6 The question mark has also been raised over the conduct of PW-2 by placing reliance upon another agreement entered between IMPCL and M/s Panchsheel Pharma, the sole proprietorship firm of the son of the complainant (PW-2). The said agreement was also C & F agreement for the period w.e.f 01.5.2016 for a period of two years. During the continuation of the said agreement, PW2 fraudulently entered into another agreement with IMPCL for the very same work vide Ex.PW-9/B CC No. 250/2019 Page 32 of 98 which was objected to by the accused. He was insisting upon compliance of the condition of deposit of bank guarantee of Rs.10 lacs as well as seeking recovery of previous dues.
20.7 Reliance is also placed upon documents Ex.PW-2/D-15, PW-2/D-16, PW-2/D-17, PW-2/D-18 & PW-2/D-19 by arguing that the complainant unauthorizedly used the letterhead of IMPCL by committing forgery on it. The said letters carry the address of IMPCL which is rather complainant's address . The complainant unauthorizedly informed to various authorities of GNCT regarding his appointment as C& F agent .
21. On the aspect of acceptance of bribe again the question mark has been raised over the version of PW-2 as he contradicted himself for the payment of Rs.10 lacs. The transcript (Part of D-
9) relied upon i.e voice recording during the trap proceedings too does not,in any manner, probablize the case of the prosecution. It does not reflect that the accused accepted the bag knowing it to be having bribe amount. Rather, the bag was accepted as on the earlier day, accused had the complainant to bring certain documents as admitted by him in his cross-examination.
21.1 The question mark has also been raised over the recovery of alleged bribe amount as PW-2 claimed that he had put Rs.10 lacs in one "polythene bag" having the words 'Devgan Sons' on it, but the said polythene bag was never shown to him. The other independent witnesses were shown the said bag, but it was a cloth bag and not polythene bag.
21.2 The question mark has also been raised over the CC No. 250/2019 Page 33 of 98 authenticity of the voice recordings in Q-1 and Q-2. It was argued that the request for the first time for providing the copies of said Q-1 & Q-2 was made by CBI to CFSL on 16.10.2018. But, as per the Investigating Officer S.P Singh (PW-12) he had prepared the rough transcript of the said recordings before conducting the voice identification proceedings on 17.10.2018. It is not clear from the entire record as to how the rough transcription was made by him as both Q-1 & Q-2 were already sealed and the seal was handed over to independent witness namely Chaman Parkesh after use. Further the transcription is not admissible as the same does not have supporting certificate under Section 65 of the Indian Evidence Act.
21.3 The reliance too has been placed upon the CDR of mobile phone of the complainant Janak Sharma (PW-2). It has been argued that Inspector Raman Shukla was also member of the verification team and the complainant had telephonic conversation with him on three occasions between 6:00 p.m to 7:16 p.m. But as per the case of the prosecution, only complainant, independent witness Chaman Prakash (PW-3) and Verifying Officer S.I Umesh (PW-8) were the only witnesses present.
21.4 Reliance has also been placed upon emails dated 24.04.2018 and 19.08.2018 (Part of Ex.PW-2/D-23) to prove the defence of the accused. It has been argued that the accused had taken steps by issuing show cause notices to M/s Panchsheel Pharmaceuticals Ltd through Janak Sharma (PW-2) seeking his reply for commission of various irregularities in breach of the contract/agreement with IMPCL. He had received payments CC No. 250/2019 Page 34 of 98 directly in their account and not transferred to IMPCL which accused was pressing. Due to the said coercive action being proposed by the accused, he has been got falsely implicated. The misconduct in performance of the work by PW2 under the agreement has been also corroborated by Rajbir Saroha ( DW-1).
21.5 Lastly, the legal issues have been raised firstly with respect to the competence of Verifying Officer S.I Umesh (PW-8) to conduct the investigation. It has been argued that the officer of the rank of Sub-Inspector cannot conduct the investigation under the Prevention of Corruption Act,1988 and therefore, the verification proceedings conducted by SI Umesh (PW-8) are illegal.
22. On the aspect of sanction, Sanctioning Authority Ms. Gracy Varghese (PW-11) never sought the record from the department/IMPCL. She admitted in her cross-examination to the fact that she did not examine any bill. She further expressed her ignorance with respect to receiving of any audio file alongwith proposal for sanctioning. Further, it has several errors in it.
23. Ld. Defence counsel in support of his submissions, has relied upon the following judgments:
(i) Prem Singh Yadav V. CBI, Criminal Appeal No. 206/2002 dated 25.03.2011
(ii) State of Maharashtra V. Dnyaneshwar Laxman Ro Wankehde VI (2009) SLT 439
(iii) B. Jayraj V. State of A.P, IV (2014) SLT 128
(iv) M. Abbas V. State of Haryana, I(2001) CCR 343 (SC) CC No. 250/2019 Page 35 of 98
(v) Niranjan Bharti V. State of Orissa 2003 (II) OLR 399
(vi) Lachman Dass V. State of Punjab AIR 1970 SC 450
(vii) Suraj Mal V. State, AIR 1979 SC 1408
(viii) B. Suresh Babu V. State of A.P 2010 (3) Crimes 278 (A.P).
(ix) Banarsi Dass v. State of Haryana 2010 IV AD (SC) 305
(x) Rabindra Kumar Dey V. State of Orissa 1976 Legal Eagle (SC) 304
(xi) Sujit Biswas V. State of Assam, AIR 2013 SC 3817
(xii) Om Prakash V. State, 2009 (3) RCR (Crl) 293
(xiii) C.M. Girish Babu V. CBI AIR 2009 SC 2022
(xiv) State of Karnataka V. Ameer Jain AIR 2008 SC 108
(xv) Nilesh Dinkar Paradkar V. State of Maharashtra 2011 (3) JCC 1972 (xvi) Joginder Singh Malik V. CBI 2022/DHC/005401 (xvii) Babu Lal Bajpai V. State of U.P AIR 1994 SC 1538 23.1 Heard the parties and perused the record.
VALIDITY OF SANCTION FOR PROSECUTION
24. The first and foremost issue to be considered is the issue validity of the prosecution sanction in terms of Section 19 of the Prevention of Corruption Act. Only in case of valid prosecution CC No. 250/2019 Page 36 of 98 sanction , the case of the prosecution can succeed herein .
24.1 Ld. Counsel for the accused has questioned the validity of the sanction for prosecution Ex.PW-11/A dated 07.03.2019 by arguing about the non-availability of audio files with the Sanctioning Authority and non examination of the bills pending with IMPCL.
24.2 As far as the issue of competence of the Sanctioning Authority i.e Hon'ble President of India is concerned, there is no dispute. The conveying authority Ms. Gracy Varghese (PW-11), the then Under-Secretary, DoPT, Govt of India, signed the said sanction order Ex.PW-11/A on behalf of Hon'ble President of India being the Competent Authority.
24.3 Now, coming to the crucial aspect as to whether there was application of due mind by the Sanctioning Authority or not before according the prosecution sanction. The sanction order Ex.PW-11/A dated 07.03.2019 is a detailed order having all the relevant facts as well as the reasons for according of the sanction. The sanction order speaks for itself that they considered all the material forwarded to it by the Investigating Authority which included the documents, statements, CFSL result with respect chemical analysis including transcription-cum-voice identification memorandum. It is also apparent from the contents of the said order that no CFSL result with respect to recorded conversation Ex.Q-1 and Q-2 was considered by them. The reasons for the same are apparent as the result came only on 01.10.2020.
CC No. 250/2019 Page 37 of 9824.4 But, the Sanctioning Authority has considered the transcription of the recorded conversation as well as voice identification proceedings forwarded to it which confirmed the voice of the accused. The mere non consideration of audio conversation or non-consideration of CFSL result cannot be said to be non-consideration of material evidence keeping in view the fact that the transcription of the recorded conversation was already available with Sanctioning Authority. Even otherwise, there no suggestion was put to PW-11 with respect to the non- availability of the complete material or the competent authority having not considered the transcript of the recordings while according prosecution sanction Ex.PW-11/A. To support their view I am also guided by the Judgment of Hon'ble Supreme Court in State (ACB)NCT of Delhi Vs RC Anand (2004) 4 SCC
615. 24.5 Now coming to the aspect of non calling of the report from IMPCL regarding pending bills. Their is no legal obligation on the part of the competent authority to conduct independent inquiry as to the allegations levelled. The competent authority is only obliged to consider the material forwarded to it by the investigating agency to arrive at its independent prima facie conclusion, which seems to be the case herein. The issue of the veracity of the allegations is not within their scope being the issue to be considered during trial.
24.6 As far as the other error as pointed during arguments regarding sanction being accorded for prosecution under Section 19 of Prevention of Corruption Act is concerned, is only a clerical error. The page-2 of the sanction order Ex. PW11/A CC No. 250/2019 Page 38 of 98 itself reflects that the sanction was sought for prosecution of the accused under 7 of PC Act 1988. Only in the last para it is mentioned that accused should be prosecuted under Section 19 of the Act. It is only the statutory provision which mandates for procuring of the prosecution sanction in case the public servant is to be tried for the offence as alleged. The content of the order Ex. PW11/A reflect the intention and purport of the authority was that accused should be prosecuted for the allegations of demand and acceptance of bribe. Thus, there is no reason to discard it or take the view that the sanction is defective in view of the said clerical error.
LEGAL OBJECTION VIS-A-VIS THE COMPETENCY OF VERIFYING OFFICER
25. Another legal objection has been raised on behalf of accused qua the legality of the verification proceedings carried out by SI Umesh Kaushik (PW-8), Verifying Officer.
25.1 It is argued that in terms of Section 17 of Prevention of Corruption Act 1988, the officers of the rank of Inspectors or above are only authorised to investigate the offences under the said Act. Therefore, the initial investigation qua verification proceedings carried out by SI Umesh Kaushik (PW-8) is illegal.
25.2 The first and foremost issue in this context is the scope of Section 17 of PC Act which specifically lays down the provision for investigation and the officers authorised in this regard. It is also well established proposition of law that the word "investigation" as defined u/s 2 (h) of CrPC is for proceedings which initiates consequent to the registration of the FIR. Any CC No. 250/2019 Page 39 of 98 proceedings which is carried out prior to the registration of the FIR is in nature of "inquiry" and does not thus, fall under within the preview of Section 17 of PC Act. Therefore, the said objection is liable to discarded with respect to legality of verification proceedings carried out by SI Umesh Kaushik (PW-
8).
25.3 Be that as it may be ,the said issue regarding irregularity in conduct of investigation by officer not authorised has been discussed by the Hon'ble Supreme Court in Union of India through Superintendent of Police Vs. T.Nathamuni, 2014 (16) SCC 285. The relevant extract of the same is reproduced hereunder for the sake of convenience:
In the instant case, the only question that needs to be considered is as to whether the order passed by the Magistrate permitting the Sub- Inspector, CBI, Chennai to investigate the matter can be sustained in law. The only ground taken by the respondent in the quashing petition before High Court is that as per the provisions of Section 17 of Prevention of Corruption Act, 1988, no officer below the rank of Inspector of Police is authorized by the Government to investigate the case without permission of the Court. Further, Section 17 does not confer any power to the Court to grant permission to Sub-Inspector of Police to investigate the case. Hence, order passed by the Magistrate permitting the Sub-Inspector of Police to investigate the case is without jurisdiction and against the mandatory provisions of Section 17 of the Act as well as Article 21 of the Constitution of India.
25.4 Therefore, in light of said interpretation of law, no material has been shown by the accused herein as to how serious prejudice or miscarriage of justice has been caused due to the conduct of verification proceedings by SI Umesh Kaushik (PW-8). Therefore, the irregularity in conduct of the verification proceedings as argued by accused even if taken to be correct, CC No. 250/2019 Page 40 of 98 cannot be discarded unless it is shown that the said irregularity has caused miscarriage of justice, which is not the case herein.
Accordingly the objection in this regard is held to be without any legal basis and stands rejected.
DEMAND AND ACCEPTANCE OF BRIBE
26. Now coming to the factual matrix of the case in hand .It is well settled position of law that in a case under Section 7 of Prevention of Corruption Act "demand and acceptance of bribe"
are sine-quo-non. The said legal requirement has been discussed in the case of P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh (2015) 10 SCC 152 and the Hon'ble Supreme Court summarised the well-settled law on the subject as under:
"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d) (i) and(li) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder."
26.1 Recently, again the Constitutional Bench of Hon'ble Supreme Court explained about the essential ingredients of an offence under Section 7 and Section 13(1)(d) of P.C. Act in Neeraj Dutta v. State (Govt. of NCT of Delhi) 2022 SCC OnLine SC 1724, as under:
"4. The following are the ingredients of Section 7 of the Act:CC No. 250/2019 Page 41 of 98
i) the accused must be a public servant or expecting to be a public servant;
ii) he should accept or obtain or agrees to accept or attempts to obtain from any person;
iii) for himself or for any other person;
iv) any gratification other than legal remuneration;
v) as a motive or reward for doing or forbearing to do any official act or to show any favour or disfavour.
5. Section 13(1)(d) of the Act has the following ingredients which have to be proved before bringing home the guilt of a public servant, namely, -
(i) the accused must be a public servant;
(ii) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or by abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or while holding office as public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
iii) to make out an offence under Section 13(1)(d), there is no requirement that the valuable thing or pecuniary advantage should have been received as a motive or reward.
iv) an agreement to accept or an attempt to obtain does not fall within Section 13(1)(d).
v) mere acceptance of any valuable thing or pecuniary advantage is not an offence under this provision.
vi) therefore, to make out an offence under this provision, there has to be actual obtainment.
vii) since the legislature has used two different expressions namely "obtains" or "accepts", the difference between these two must be noted..."
26.2 The amendment in the provision under Section 7 of PC Act w.e.f 18.06.2018 does not make much difference as the heading still remains "Offence relating to public servant being bribed". Therefore, in view of the said well settled legal proposition, the first and crucial factum of demand of bribe or gratification needs to be considered.
DEMAND OF BRIBE
27. The prosecution in order to prove the factum of demand of CC No. 250/2019 Page 42 of 98 bribe has primarily placed reliance upon the version of Janak Sharma (PW-2), complainant herein. It is the admitted fact that other members of the verifying team i.e Chaman Prakash (PW-3) and Verifying Officer SI Umesh (PW-8) were not able to hear the conversation which took place on the aspect of demand between accused and the complainant. Both of them in their cross-examination admitted to the fact that they were not able to overhear the conversation. Though they admitted that they had taken the seat at Sagar Ratna Restaurant near to the place where the complainant and accused were sitting and having conversation. But still they were not able to overhear the conversation.
27.1 It is the case of CBI that Janak Sharma (PW-2) of M/s Panchsheel Pharmaceuticals, authorised liasoner IMPCL approached the CBI for the first time on 13.09.2018 when he lodged the complaint Ex.PW-2/1 which was assigned to SI Umesh (PW-8) for verification. It was specifically alleged by him that the accused who is the Under Secretary in the Ministry of Ayush and Incharge /MD of IMPCL is demanding Rs.30 lacs for clearing the bills pending with him since long for approval. The said demand was also for continuing to run their business with IMPCL. The last allegation made in the complaint was that the accused further demanded 2% of total business in future and in case the same is not paid, he will engage some other firm for performing the work being presently performed by M/s Panchsheel Pharmaceuticals Ltd.
27.2 Thus, in the complaint, PW-2 levelled the allegations of demand of bribe of Rs 30 lacs firstly for passing the pending CC No. 250/2019 Page 43 of 98 bills and secondly for further continuing M/s Pancsheel Pharmaceuticals to run their business with IMPCL.
27.3 PW-2 deposed on the said aspect in the court by deposing that he met the accused in this regard for the first time on 06.09.2018 wherein the accused stated as under:
"I waited for 1 or 2 hours and thereafter the accused returned and told me that why I have come now when the bills were sent in June or whether I was under the impression that will be cleared of its own."
27.4 He further claimed that he again met the accused on 13.09.2018 prior to going to CBI and in the said meeting, the accused stated that his agreement with IMPCL stands cancelled and will be given to someone else to whom the accused has already promised. He further raised the demand of Rs.30 lacs for pending bills. So, in examination-in-chief, he has deposed that the demand of Rs.30 lacs was raised for the first time to him on 13.09.2018 and further claimed that the agreement with M/s Panchsheel Pharmaceuticals Ltd already stood cancelled. Admittedly, his version in the court is in contradiction to his earlier complaint Ex.PW-2/1 as discussed-above.
27.5 PW-2 further deposed that during the verification proceedings on 13.09.2018, he and accused sat at Sagar Ratna, Ashoka Hotel and during the meal had discussed the said demand made by the accused in the morning. Herein, again PW-2 changed his version and claimed that the accused told him that he will be given work only till December 2018 and thereafter, he will be removed despite the fact that his agreement with IMPCL CC No. 250/2019 Page 44 of 98 was till March 2019. He further improved and contradicted his previous version by claiming that the accused made demand of Rs.30 lacs from him for the work to be done till December 2018. To quote from his statement:
"He told me that he will give me work only till December 2018 and thereafter I will be removed. I told the accused that my agreement is till March 2019. Accused told me that the agreement is just piece of paper. I asked accused what I should do. He told me that he will take Rs. 30 lacs from me for the work till December 2018. I asked him what will happen after December 2018 to which he replied that he will see how our deal progresses and the he will decide for the remaining period. This Rs. 30 lacs was for depot work with me and accused asked 2% of the total turnover of my firm for the liasoning work of the other States"
27.6 Apart from that, the demand was also raised with respect to the new patents in the trade and he demanded 8% out of the 10% for new patents. On negotiations, the demand for bribe was lastly settled at Rs.20 lacs. Thus all together different version was given by PW2 in court as to motive of the gratification demanded by accused .
PENDING BILLS
28. So in the said backdrop, the first aspect to be seen is as to whether there were indeed pending bills of M/s Panchsheel Pharmaceuticals Ltd with IMPCL as on 13.09.2018 or not, as it is the foundation of the entire case of the prosecution and basis upon which the prosecution sanction has been granted. As per Para 16.05 of the chargesheet it is specifically stated that the bills were submitted in May 2018 by M/s Panchsheel Pharmaceuticals Ltd and in the month of June 2018, the accused approved bills to tune Rs. 33,955,75/- plus GST . But the bills to the tune of Rs.
CC No. 250/2019 Page 45 of 9882,75,368/- approximately including GST were not approved and returned to Chief Manager (Finance), IMPCL.
29. Per contra, it is the case of the accused that as on 13.09.2018,no bill of M/s Panchsheel Pharmaceutical was pending as has been admitted by Arvind Aggarwal (PW-9) and Dr. Manjeet Sinha (PW-10), both officials of IMPCL.
30. The Janak Sharma (PW-2) on the said aspect while deposing in the Court in his examination in chief claimed that he had submitted four bills online on 04.06.2018, all amounting to Rs.82 lacs including GST, but these bills were not cleared. He was informed by officials from Marketing Department and Accounts Department that the same are not cleared due to objection raised by accused. Then, PW-2 was accordingly forced to meet the accused, for the first time, on 06.09.2018, thereupon the demand of Rs.30 lacs as bribe was raised by the accused.
30.1 He further deposed that during his meeting with accused at Sagar Ratna Restaurant during verification proceedings, the accused again reiterated the demand of Rs.30 lacs, but the said demand was now surprisingly for depot work and for continuing of work by M/s Panchsheel Pharmaceuticals Ltd as C&F till December 2018. Further, the demand was raised with respect to 8% of the profit/return with respect to the business of new patents. Thus, in a way the demand of bribe and object/motive behind it got changed during verification as per the version of PW-2. The said allegations are admittedly in contradiction to the case of prosecution .
CC No. 250/2019 Page 46 of 9830.2 On the contrary, the verification memo D-3 (PW-2/2) reiterates the fact that the demand of Rs.30 lacs was for passing of the pending bills and allowing the complainant to run the business with IMPCL smoothly in future. There is no averment that the said demand was for depot work till December 2018 or there being demand of 8% for new patent trades. Thus, in a way the contents of the verification memo Ex.PW-2/2 itself contradicts the version of PW-2.
30.3 It is the case of the prosecution right since inception that the said demand of Rs.30 lacs which was subsequently reduced to Rs.20 lacs was raised for clearing the pending bills and for allowing the complainant to run his business with IMPCL. So, the version of PW-2 on the aspect of pendency of four bills needs deeper scrutiny. On said aspect, PW-2 has been extensively cross-examined on behalf of the accused. He firstly claimed that he submitted the bills in question online with IMPCL in the year 2018. But later on, he admitted to the fact that submission of original bill was necessary with IMPCL in the year 2018. His conduct/demeanor in giving evasive replies to the said specific issue has also been noted down by the court . Thereafter, he was confronted with the bills in question (Part of D-12). He further admitted to the fact that these three bills (Part of D-12 Ex. PW- 9/B collectively) are the bills in question for which the dispute was raised and have not been cleared by the IMPCL. The detail of the said bills (Part of D-12 Ex. PW-9/B collectively) is as under:
CC No. 250/2019 Page 47 of 98Bill Details Sr. Bill Dated Incentive Head Amount Institution Total No (Rs.) Amount including IGST(Rs) 1 04.06.2018 (i) Loan License 20,27,477/-
Incentive CCRUM 55,82,319
(ii) Turnover 27,03,303/-
Incentive
2 04.06.2018 (i) Loan License 13,68,098/-
Incentive CCRAS & 32,29,002
(ii) Turnover 13,68,098/- Ayush
Incentive Institutions
3 04.06.2018 Turnover 25,08,500 CGHS & 29,60,030
Incentive Peripherals
30.4 Out of the said three bills, part payment of the above-
referred bills concerning CCRUM and CCRAS and AYUSH Institutions under the component "Loan Licence Incentive", already stands paid to the firm of PW-2. The debit notes in favous of M/s Panchsheel Pharmaceutical are part of Ex. PW9/B (Colly.) The dispute remains only with respect to component of said bills under the heading 'Turn Over Incentive' which is for the amount Rs.89,84,995/-. The said disputed amount was not paid and it is the case of the prosecution for clearing the said disputed amount of approximately Rs.89 lacs, the accused herein being the Managing Director of IMPCL demanded Rs.30 lacs as bribe. The said amount, after negotiations, was reduced to Rs.20 lacs.
30.5 Another crucial fact qua the said amount of the bills which has come in the version of PW-2 itself is that the said amount of Rs.89 lacs has not been cleared by the department (IMPCL) till date. He has further stated that he has not given any representation till date with IMPCL with respect to payment of CC No. 250/2019 Page 48 of 98 said amount. He further stated that he personally went to the office and was told that no payment shall be made till pendency of the present CBI case. As far as the issue of pendency of present is concerned, nothing prevents the IMPCL to clear the said amount of the disputed bills if M/s Panchsheel Pharmaceuticals Ltd was legally entitled to claim and was wrongfully and illegally denied by accused as is the case of the prosecution. But, no such steps have been taken by IMPCL till date.
30.6 Rather, on the contrary Arvind Kumar Agarwal ( PW-9), AGM (Finance), IMPCL in his cross-examination stated that no bill of M/s Panchsheel Pharmaceuticals Ltd was pending with them for payment as on 14.09.2018. PW-9 even submitted the reply under the RTI sought by the accused herein and proved the same as Ex.PW-9/D-2. PW-9 further clarified that the basis of said information was after seeing the ledger account M/s Panchsheel Pharmaceuticals Ltd. PW-9 was even re-examined by prosecution on the very said aspect and the relevant question and answers are reproduced for the sake of convenience and clarity:
"Question: As it is the case of the prosecution that bills were pending for clearance on the part of the accused whereas your cross-examination suggests that no bills were pending for payment. Can you clarify regarding position of pendency of the bills ?
Ans. On 14.09.2018, no bill of M/s Panchsheel Pharmaceutical was pending since the debit notes were issued in July 2018 itself pertaining to target incentive after clarification from the accused."
30.7 It is, thus, apparent from the said categorical reply of PW-9 CC No. 250/2019 Page 49 of 98 that as on the date of complaint filed by PW-2 with CBI as well on the date of trap, no bill of M/s Panchsheel Pharmaceuticals Ltd was pending with them. The debit notes for the pending bills were already issued in July 2018. So if no pending bills were their with the accused why he was demanding Rs 30 lakhs and why PW2 had approached him seeking clearance of the bills . There is no answer on the said issues by the prosecution .
31. Another crucial fact which puts a question mark over the case of the prosecution as well as the testimony of Janak Sharma (PW-2) on the said aspect is his responses in the cross- examination. PW-2 admitted to the fact after checking his record that he had not shown the alleged outstanding amount of bills of IMPCL in his balance sheet for the year 2018-2019. In case, it was the claim of the PW-2 that his bill's were pending for target incentive clause with IMPCL and were wrongly returned back to the Marketing Department by the accused, then why the said pending amount was not shown as "outstanding amount" in the balance sheet of M/s Panchsheel Pharmaceuticals Ltd.
31.1 The documents of the prosecution (Part of D-12 Ex.PW- 9/B collectively ) reflect the movement as well as the role played by each of the official qua the processing of the said three bills . As it has already been noticed that the said bills dated 04.06.2018 were submitted with IMPCL only on 21.06.2018. But surprisingly, without even raising of said bills, the clarification note was initiated in May 2018 itself by Arvind Kumar Agarwal (PW-9), AGM (Finance), IMPCL. The clarification was sought by the Finance Department with respect to the payment under the head 'targeted incentive' and 'licence CC No. 250/2019 Page 50 of 98 loan incentive'. The said clarification was sought from the Marketing Department which submitted their detailed note dated 23.05.2018. As far as the clearance of 'licence loan incentive' is concerned, there is no dispute as the said payment already stands released to M/s Panchsheel Pharmaceuticals Ltd for the above- referred bills. The dispute only remains qua 'targeted incentive' component. The Marketing Department through their separate clarification note recommended for release of the payment for supplies to Institutions like CCRUM, CCRAS, AYUSH & DGHS against the 'Target Incentive' component.
31.2 The said original note of Finance Department alongwith clarificatory note of Marketing Department was then put up before the accused herein being the Managing Director. The accused disagreed with the clarification given by Marketing Department on the 'target incentive component'. He stated in the note {Ex.PW9/B (colly.)} as under:
"Target turnover incentive is applicable only in respect of State Govt orders and not on Institutions under Ministry of Ayush & others."
31.3 So after getting the said clarification, the above-noted three bills dated 04.06.2018 were processed and the payment was released on 04.07.2018 .The said payment stands credited in the accounts of PW-2 as admitted by him. However, PW-2 never disclosed this fact either in his complaint (Ex.PW-2/1) or during investigation and lastly in his examination-in-chief recorded before the Court. Only after, he was confronted with the bills in the cross-examination, he admitted to the fact that he had received the payment as reflected in the debit notes dated CC No. 250/2019 Page 51 of 98 03.07.2018 (Part of Ex.PW-9/B collectively). So, the only conclusion which can be drawn from the said testimony of PW-2, PW-9 and documents Ex.PW-9/B collectively that as on 14.09.2018, no bill of M/s Panchsheel Pharmaceuticals Ltd was pending with IMPCL.
31.4 The next question which is corollary to said issue of pending bills is as to whether accused had the authority to still clear the bill for 'turn over incentive' as detailed in Para No. 30.3 despite its earlier rejection. It is reflected from the record itself that the CBI seized the entire record with respect to the processing of said bills and the manner in which the target incentive bills of Rs.89 came to be rejected. Therefore, the next question which should have been thoroughly investigated was as to whether the accused had the authority to recall his decision or not. If indeed, he had the authority to recall, then only, there was occasion for demanding the bribe of Rs.30 lacs for clearing the bills. The entire chargesheet is silent on this regard and it has been simplicitor claimed that accused herein did not approve the said note and returned it to Chief Manager (Finance), IMPCL. Apparently, the said assertion in the chargesheet is contrary to the record. The bills were never returned by the accused, but rather not approved for 'turn over incentive' vide his noting Ex.PW9/ B. The subsequent notings dated 22/06/2018 in a way carries forward the said decision and Loan Incentive Charges of the said bills were accordingly cleared. There is not a single document on record which corroborate the claim of the prosecution that accused bills for Rs 89,75,368/- were not approved and returned to Chief Manager (Finance) IMPCL.
CC No. 250/2019 Page 52 of 9831.5 Inspector S.P. Singh (PW-12) Investigating Officer was cross-examined on the said aspect who claimed that he had examined Dr. Manjeet Sinha (PW-10) who told him that agreement with IMPCL is silent qua the authority of M.D and accused can recall the same. Further PW-9 informed that the final status of the said bill's was that they were pending.
31.6 As far as the latter part of his response regarding pendency of bills is concerned, the documents reflect otherwise .Even Arvind Kumar Agarwal (PW-9) has in categorical terms denied the said assertion. PW-9 was further cross-examined (on 20.04.2023) on this aspect wherein he deposed as under :
"I have seen the documents provided by me under RTI and after seeing the ledger account of Panchsheeel Pharmaceuticals, I can say that no bill of Panchsheel Pharmaceuticals was pending payment as on 14.09.2018."
31.7 The said assertion of the I.O on the issue of recall of rejected bill's is not supported by Dr. Manjeet Sinha (PW-10) in Court. He remained completely silent on the said aspect and was never cross-examined on behalf of CBI specifically on the said point. Even his statement under Section 161 Cr.P.C, rather reflect otherwise than as claimed by PW-12. Further, no witness was examined by the CBI as to precedents if any on the said issue.
31.8 It is also proved from the record that PW-2 never moved any representation with IMCL even after the arrest of the accused and he being not at the helm of the affairs with respect to the said unjustifiable declining of 'turnover incentive claim ' as claimed by him. Rather, the said amount has not been released till date CC No. 250/2019 Page 53 of 98 and the only conclusion that can be drawn is that the interpretation of accused as M.D of IMPCL was as per the terms of the agreement while rejecting the approval of turn over incentive claim' qua the Ayush Institutions through his noting dated 15.06.2018 Ex.PW9/B.
32. The next issue which is connected to the said declining of clearance of 'target incentive claim ' raised by the complainant (PW-2) is as to whether the agreement (Part of Ex.PW-9/B collectively) provided for the same and accused acted in unjustified manner. The agreement Ex. PW9/B dated 30.11.2017 was executed between IMPCL and M/s Panchsheel Pharmaceutical Ltd, the partnership firm of the complainant wherein he was appointed as C&F-cum-Institutional Agent for CGHS, CCRUM, CCRAS and other Ayush Institutions, GNCT of Delhi State. The tenure of the agreement was from 01.04.2017 to 31.03.2018. The complainant (PW-2) raised the said bill against 'target incentive' for the above-noted period by placing reliance on clause on 15 (b) of the said agreement. It provided for achievement incentive in case liasoner achieves certain target of sale. But as there was no clarity as to whether the said target incentive covers all the Institutions to whom the supply was made by C&F-cum-Institutional Agent (M/s Panchsheel Pharmaceutical herein) or only for Delhi Government institutions, the clarification note was moved by Arvind Agarwal (PW-9) Ex.PW-2/D-2 on 23.05.2018 well in time even before raising of the bills by PW-2.
32.1 Ultimately, the said issue was clarified by the accused herein who is also the signatory to the said agreement executed CC No. 250/2019 Page 54 of 98 between IMPCL and M/s Panchsheel Pharmaceuticals Ltd. He claimed that the said clause is only for Delhi Govt. Institutions. Thus the issue to be seen is whether the interpretation of clause 15(b) of the agreement by the accused was correct or due to some ulterior motive.
32.2 Before appreciating the said issue it is apparent that at the time of lodging of the complaint and present FIR /RC, the said agreement already stood expired. The IMPCL thereafter entered into another agreement with M/s Panchsheel Pharmaceuticals Ltd. The subsequent agreement was executed on 29.10.2018 by Dr. Manjeet Sinha (PW-1) on behalf of IMPCL. The said agreement has been proved on record by the defence as Ex.PW- 2/D-24. The said agreement is for period April 2018 to March 2019. Separate agreements were executed for State of Delhi, CGHS, Councils (CCRAS, CCRUM, AYUSH Institution except NIUM.
32.3 As far as the separate agreement qua said councils i.e CGHS, Councils (CCRAS, CCRUM, AYUSH Institution except NIUM is concerned, the target incentive clause was specifically deleted and even the total commission and incentive was kept at 11% which was earlier 15%. Thus, in a way the said subsequent agreement dated 29.10.2018 between IMPCL and M/s Panchsheel Pharmaceuticals Ltd Ex. PW2/D24 puts a stamp of approval on the decision taken by accused through his noting Ex.PW-9/B dated 15.06.2018.
32.4 But, surprisingly none of the said aspects were investigated by the CBI despite it being the foundation of their CC No. 250/2019 Page 55 of 98 case. The said facts disprove the allegations of prosecution regarding accused having malafidely not approved the bills to the tune of Rs.89 lacs of M/s Panchsheel Pharmaceuticals Ltd in June 2018 and returned to Manager (Marketing).
BRIBE FOR CONTINUATION OF BUSINESS
33. The second limb of the allegation for demand of bribe by the complainant Janak Sharma (PW-2) was that the said demand of Rs.30 lacs was raised by the accused for allowing the continuation of business by M/s Panchsheel Pharmaceuticals Ltd with IMPCL.
33.1 On the said aspect , he deposed in the court when he met the accused on 13.09.2018 before going to CBI, the accused told him that the agreement stood cancelled and would be given to someone else. He further deposed that during verification proceedings when he met the accused at Sagar Ratna Restaurant , Ashoka Hotel, he demanded Rs.30 lacs for allowing his firm to work with IMPCL till December 2018 .To which he (PW-2) asked him what would happen after December 2018, he (accused) replied that he will see how their deal progresses. Apart from that, 2% of the total turn-over of the their firm for the liasoning business too was demanded.
33.2 PW-2 was cross-examined on behalf of the accused on the said aspect wherein he claimed that in his complaint (Ex.PW- 2/1), he stated that the accused having told him that their agreement stood cancelled and would be given to someone else. It is admittedly an improvement made by PW-2 as the complaint CC No. 250/2019 Page 56 of 98 (Ex.PW-2/1) only talks about bribe being demanded for continuation of the business with IMPCL. On the said aspect, he in the cross-examined admitted to the fact that after the expiry of the previous agreement with IMPCL, he was given the letter of authorisation to continue to work with IMPCL.
33.3 To appreciate the said part of the allegations of the complainant, the first issue to be seen is the tenure of the contract/agreement between IMPCL and M/s Panchsheel Pharmaceuticals Ltd. The prosecution has proved on record the agreement for appointment of C&F-cum- Institutional Agent dated 27.11.2017 Ex.PW-9/B collectively. The period of the said agreement was w.e.f 01.04.2017 till 31.03.2018. As far as the bills in question are concerned as has been discussed in the preceding paragraphs, the same were pertaining to the above-said period of 01.04.2017 till 31.03.2018. Admittedly, at the time of lodging of the complaint i.e 13.09.2018, the said agreement had already expired and the agreement was silent with respect to its continuation for any grace period. Further, PW-2 in the cross- examination admitted to the fact that after expiry of the said agreement, he was given the letter of authorisation to continue to work with IMPCL. Though the prosecution has not placed on record the said documents as well as not investigated the said fact despite the claim of the complainant regarding threat being extended by the accused not to continue the business with M/s Panchsheel Pharmaceuticals Ltd in case the bribe is not paid.
33.4 The accused has proved the said letter of authorisation Ex.PW-2/D-12 dated 26.07.2018. The said letter is issued under the signatures of Dr. Manjeet Sinha (PW-10), Managing Director CC No. 250/2019 Page 57 of 98 (Marketing), IMPCL whereby it has been appraised to all the concerned that M/s Panchsheel Pharmaceuticals Ltd continues to be their Institutional Agent for Delhi State w.e.f 01.04.2018 to 31.03.2019. Thus, as per the contents of the said letter of authorisation issued firm of PW-2 was authorised to act till 31.03.2019 and there was no occasion for the accused to demand bribe in this regard from PW-2. The said letter of authorisation has been issued on 26.07.2018 and it is the same time when the complainant claims to have submitted his disputed bills which were unjustifiably rejected or not approved by the accused. No explanation is offered by the prosecution on the said issue of letter of authorisation being already issued in favour of M/s Panchsheel Pharmaceuticals Ltd whereby he was appointed as Institutional Agent for the period in question. It is also not investigated as to whether accused was authorized to cancel the same after the issuance of said letter and if yes what was the procedure thereof .
33.5 Apart from this, the another letter Ex.PW-2/D-22 dated 11.06.2018 too throws light over the very said issue. The said letter too has been issued under the signature of Dr. Manjeet Sinha (PW-10), Manager (Marketing), IMPCL. The same is reproduced hereunder for the sake of convenience:
Dated: 11.06.2018 IMPCL/Mktg./C&F/2018-19/914-18 To ALL C&F OF IMPCL Dear Sir, As you all are aware that IMPCL has invited the CC No. 250/2019 Page 58 of 98 tender for the appointment of Ware house operator under title "Expression of Interest for Engagement of IMPCL's C&F CUM CENTRAL WARE HOUSE, Operator at NCR of DELHI vide Tender no.
IMPCL/Mktg./Inst. Business/18-19/01. The new arrangement of GST which is a destination based tax opposes the running of multiple C&F for a company. So, the Management of the Corporation has decided to close all the existing C&F and operate through single C&F CUM CENTRAL WARE HOUSE from NCR of Delhi.
As, the finalization of new operator's appointment and strting of operation by new party shall take time, hence, I have been directed to inform that existing C&F shall carry their operation with IMPCL in conformity of previous agreement till further order.
After finalization of Operator's appointment, further instructions like for winding-up of operation & instructions for Stock transfer etc. shall be issued by the competent authority.
For IMPCL Sd.
Manager (Mktg.)
34. Thus, it is apparent from the contents of the said letter that after the lapse of previous agreement Ex.PW-9/B ( collectively), a fresh expression of interest/tender for engagement of C&F for NCR for Delhi was called and till the finalization of the said process, all the existing C&F were directed to carry their operation in conformity with the previous agreement till further order. The copy of the communication/letter has also been forwarded to M/s Panchsheel Pharmaceuticals Ltd.
34.1 The contents of the said letter too strikes at the very root of the claim of PW-2 that the accused having told him that his agreement with IMPCL stands cancelled or shall be only till December 2018 if he does not pay Rs.30 lacs. The previous CC No. 250/2019 Page 59 of 98 agreement was already over .As far as the fresh agreement for appointment of C&F Agent is concerned, the fresh tender was invited. The previous C&F's including M/s Panchsheel Pharmaceuticals Ltd were allowed to work as per the previous agreement till the finalization of the said tender.
34.2 As far as the issue of outcome of the tender is concerned, it has already come on record in the cross-examination of Janak Sharma (PW-2) and Dr. Manjeet Sinha (PW-10), the said tender was cancelled as M/s Panchsheel Pharmaceuticals Ltd was the sole technically qualified bidder. Therefore, in the said backdrop ultimately IMPCL was left with no other option but to continue with M/s Panchsheel Pharmaceuticals Ltd for the financial 2018-
2019 vide agreement already Ex.PW-2/D-24.
34.3 The reading of all the said documents reflect that the previous agreement had already expired in April 2018 and at the time of lodging of complaint i.e on 13.09.2018, there was no existing agreement in favour of M/s Panchsheel Pharmaceuticals Ltd. Though he was authorised to work in terms of authorisation letter as well as letter dated 11.06.2018 (Ex.PW-2/D-22) till further orders only in terms of previous agreement. Thus, the claim of PW-2 that the accused had threatened him that his agreement with IMPCL stands cancelled or he will be allowed to work only till December 2018 is blatantly against the record. The previous agreement was already over and he was allowed only till finalization of fresh tender issued.
34.4 Therefore, the cumulative discussion as to the allegations levelled by the complainant (PW-2) in his complaint (Ex.PW-2/1) CC No. 250/2019 Page 60 of 98 as for the motive/reward of the bribe seems to be suspicious and not corroborated by the documentary evidence proved on record.
35. Another crucial issue which puts a question mark over the claim of the complainant regarding demand of bribe is the previous conduct of the accused right from September 2016 till the filing of the complaint. PW-2 in the cross -examination admitted to the fact that accused was working as MD, IMPCL since September 2016 and had cleared his bills to the tune of Rs. 14-15 crores( approximately) during his tenure. He also admitted the clearance of the said bills produced by the accused as Ex.PW- 2/D-21 (collectively).
35.1 Interestingly, the last set of bills which are part of said Ex.PW-2/D-21 (collectively) again puts a question mark over the deposition of PW-2 regarding demand of bribe in lieu of clearing the bills or seeking 2% of the total business in future. One such bill dated 04.06.2018 was raised by the complainant (PW-2) towards the incentive of "loan licence business" and "turn over incentive" pertaining to GNCT, Delhi. The total amount of the said bill was Rs.1,38,98,360/-. The said bill was processed vide noting dated 22.06.2018 whereby Arvind Kumar Aggarwal (PW-
9), Chief Manager, IMPCL who recommended for payment. Accused herein finally approved the said bill on 29.06.2018 .After deduction of the TDS @ 5% the amount was released to the PW2. The said bill is part of disputed three bills as discussed-above wherein the "turn-over incentive" was denied by the accused being the M.D of IMPCL and the basis of the said denial was the target turnover incentive is only applicable in respect of State Government orders. So, in the line of said CC No. 250/2019 Page 61 of 98 reasoning, the said bill dated 04.06.2018 for Rs.1,38,98,360/- ( part of Ex. PW2/D-21 ) was promptly processed and approved by the accused. The turn-over incentive was granted as it pertained to the sale of medicines to the State Government i.e GNCT, Delhi. But surprisingly the said bill despite being part of disputed bills of PW2 was neither seized not examined during investigation by CBI ,which again raises question mark over their objectivity and competence .In case had the CBI seized and examined the said bill , it would have exposed the claim of PW2 regarding demand of bribe by accused for clearance of the pending bills.
35.2 The record also reflect that previous bills raised by M/s Panchsheel Pharmaceuticals Ltd. were all cleared by the accused promptly being the M.D/Incharge, IMPCL ,despite the fact that few of the said bills had certain issues with respect to lack of clarity on the clauses of the agreement, delay etc. The said series of events regarding approval of the bills raised by M/s Panchsheel Pharmaceuticals Ltd right from September 2016 till the filing of the complaint i.e 13.09.2018 by the accused being the M.D/Incharge, IMPCL proves the fact that he cleared all the bills except three bills as referred in para-30.3. The reasons for non clearance of the bills has now been even approved by the later management by deleing the clause of turnover incentive in the agreement's Ex. PW-2/D24 qua Ayush Institutions.
35.3 The said conduct of accused as noted above does not in any manner probabalise the version of complainant that accused demanded bribe of Rs.20 lacs for clearing the pending bills or 2% of the total business in future. On the contrary, the conduct of CC No. 250/2019 Page 62 of 98 complainant (PW-2) as brought forth in the cross-examination puts him in the dock.
PW-2 was also cross-examined on the existence of another firm M/s Panchsheel Pharma wherein he categorically denied the existence of any such firm or it being related to him. He further claimed that due to typographical error on the part of IMPCL, the name of his firm was once mentioned as M/s Panchsheel Pharma instead of M/s Panchsheel Pharmaceuticals Ltd. Thereafter, he was confronted with the agreement (Ex.PW-2/D-4) executed between IMPCL and M/s Panchsheel Pharma wherein he admitted that his son namely Rajat Sharma signed the said agreement as proprietor of M/s Panchsheel Pharma.
35.4 Thereafter, he further tried to mislead the court by claiming that M/s Panchsheel Pharma and M/s Panchsheel Pharmaceuticals Ltd are one and same entity having same GST and PAN card. If the said version of the complainant (PW-2) is accepted, it is nothing but fraudulent act on his part in deceiving the Govt /Taxation Authorities. The use of one GST number or PAN for two different legal entities is nothing but a effort to deceive the taxation authorities.
35.5 He further admitted to the fact that he never furnished any bank guarantee with IMPCL pursuant to the agreement in question (Ex.PW-9B/) despite the condition no. 2 of the agreement.
36. Another issue which puts a question mark over the veracity of the version given by PW-2 is the manner in which he came to know about the bills being not cleared by the accused and he CC No. 250/2019 Page 63 of 98 being asked to talk to accused in this regard. It is the foundation of the case of the prosecution as only thereafter PW2 lodged the complaint with CBI.
36.1 PW-2 while deposing in the court claimed that firstly he called Marketing Department wherein he was told that they had passed their bills and he should contact the Accounts Department. But, the officials of Accounts Department informed him that they have received his bills, but he has to talk to the MD regarding the clearance of said bills. Only thereupon PW-2 met the accused for first time on 06.09.2018 and 13.09.2018 in connection with the bills wherein the demand of bribe was raised.
He was cross-examined on the said aspect wherein he claimed that he firstly talked to R.B Chaudhary, Deputy Manager (Marketing) who asked him to talk to Manager (Marketing) Dr. Manjeet Sinha (PW-10). Thereafter, PW-10 asked him to talk to Arvind Kumar Aggarwal (PW-9), AGM Finance who in turn asked him to talk to the accused with respect to clearance of the bills. So, in this manner for the first time PW-2 came across the fact of his bills being not cleared and it was the accused who was responsible for the same. Then, he met the accused on 06.09.2018 and 13.09.2018 in this regard when demand of bribe was raised.
37. But both Arvind Kumar Aggarwal (PW-9) and Dr. Manjeet Sinha (PW-10) denied having ever met PW-2 with respect to said questioned bills. PW-9 rather went ahead deposing that he never personally met PW-2 Janak Sharma between June 2018 to September 2018 with regard to the questioned bills. Thus, the CC No. 250/2019 Page 64 of 98 version of both PW-9 and PW-10 raises a question mark over the very first claim which is the foundation of the case of the complainant/PW2 as to how he came to know about non- processing of his bills and then he being asked to meet the accused.
38. In the light of above-discussed reasons, the version of PW- 2 on the aspect of demand cannot be relied upon without due corroboration. In this regard, the Hon'ble Supreme Court in case titled 'State of Kerala & Anr. V. C.P Rao' Criminal Appeal No. 1098 of 2006, 2012 AIR SCW 2879 clearly stipulates that the version of complainant in such type cases before it being accepted has to be corroborated and in case of no corroboration, it cannot be relied upon. The relevant para of the same is reproduced hereunder for the sake of convenience and clarity:
"In the background of these facts, especially the non- examination of CW 1, was found very crucial by the High Court. The High Court has referred to the decision of this Court in Panalal Damodar Rathi Vs. State of Maharashtra 1979(4) SCC 526 wherein a Three-Judge Bench of this Court held that when there was no corroboration of testimony of the complainant regarding the demand of bribe by the accused, it has to be accepted that the version of the complainant is not corroborated and, therefore, the evidence of the complainant cannot be relied on."
CORROBORATIVE MATERIAL
39. So, in view of the settled legal proposition, the next material issue to be seen is as to whether the version of complainant Janak Sharma (PW-2) is corroborated by any other evidence on record. The prosecution in order to corroborate the allegations of complainant (PW-2) has placed reliance upon the recorded conversation which took place between PW-2 and the CC No. 250/2019 Page 65 of 98 accused during the verification proceedings conducted by SI Umesh (PW-8), Verifying Officer.
39.1 The said conversation was got recorded in memory card Q-1 which is proved on record as Ex.P-1 and the transcript of the same being part of PW-2/5 ( collectively). The second and third file in the said recorded conversation are relevant herein having conversation between accused and PW-2 when the alleged demand was raised . The second file is a short conversation wherein complainant called the accused on his mobile to know about his whereabouts who informed that he is in office and will be leaving 10-15 minutes.
39.2 The third file no. 180913_1738 is the crucial conversation which is relied upon by the prosecution for proving the aspect of demand of bribe. The duration of the said recorded conversation is about 1 hour 40 minutes. The said conversation took place at two places firstly when PW-2 met the accused in his office to pick him up and they both went to Ashoka Hotel in the car of PW-2. The second part of the conversion which took place at Sagar Ratna Restaurant, Ashoka Hotel. It is the most crucial one wherein the major discussion took place between them regarding the issues in hand.
39.3 As far as the first part of the recording goes, the discussion took place when both were travelling in the car. The said recording is somewhat clear having no external disturbances. But, as far as the second part of the major conversation which took place at Sagar Ratna Restaurant, the background noises or noises other present over there are too prominent which in a way CC No. 250/2019 Page 66 of 98 disturbs the entire recording and due to this reason only, the transcript Ex.PW-2/5 ( collectively) is replete with words "अस्पष्ट"
(Unclear) and (----) Dash-Dash. PW-2 too admitted to the fact of noises of some other persons sitting at Sagar Ratna Restaurant. Thus the said recording Q1 in way does pass the test as laid down by the Hon'ble Supreme Court in landmark case on the said subject of Ram Singh & Ors. V. Col. Ram Singh 1985 (Supp) Supreme Court Cases 611.
39.4 Be that as it may be, the said conversation has to be appreciated to see as to whether the said conversation corroborates the version of PW-2 or not. Firstly, PW-2 claimed while deposing in court that while they were going in the car, accused told him to have 'Dosa' at Sagar Ratna Restaurant, Ashoka Hotel. But on the contrary, the transcript reflects it otherwise. It is the complainant (PW-2) who suggested that they should sit at Sagar Ratna Restaurant.
39.5 PW-2 further claimed that after ordering the meal, he asked as to how to go with his demand which he (accused) made in the morning. Upon this, the accused told him that he will give him the work till December 2018 and thereafter, he (complainant) will be removed. But again the transcript reflected otherwise. As per the transcript after the order was placed at Sagar Ratna Restaurant from duration 29 minutes to 40 minutes either the conversation is unclear or not related to the case.
39.6 Thereafter, as per the transcript the conversation took place and the first topic to be discussed appears to be that of propriety rights. The said discussion continued for some time and CC No. 250/2019 Page 67 of 98 in the middle, there is discussion about continuation of the business of M/s Panchsheel Pharmaceuticals Ltd. As per the transcript, it is the complainant (PW-2) who pleaded for continuing of the said business till 31st December. The said conversation is reproduced hereunder for clarity and convenience:
सी अस्पष्ट - - - मेरे डिपो को 31 दिसम्बर तक तो
चलने एट लिस्ट
ए वो तो - - हमे पता नही आगे चलना या नही
चलना है - - -
सी सर कोशिश करना मार्च रक खीच देना -- नया
काम स्टार्ट करना चाह रहा हू - - मेरी पेडिंग
पैमेंट दिला देना वो - -
ए पैमेंट की बात यहां कर रहे - - हम लोग उन्हे
मंगवा लेंगे -- अस्पष्ट -
39.7 So, it is apparent from the above-said discussion that on the aspect of continuation of business of M/s Panchsheel Pharmaceuticals Ltd, the complainant (PW-2) initiated the conversation, not the accused as has been deposed by PW-2. There is no talk /claim made by accused that PW-2 will be given work till December 2018 and thereafter, he will be removed. On the contrary, PW-2 pleaded to allow him to continue the business till March 2018 as he knew new tender was already floated.
39.8 The complainant Janak Sharma (PW-2) further while deposing in the court claimed that he then pleaded with the accused that his agreement is till March 2019 upon which the accused told him that it is just piece of paper. As far as the said CC No. 250/2019 Page 68 of 98 claim of the complainant that his agreement with IMPCL was till March 2019, it has already been observed that it is a false plea in view of the letter dated 11.06.2018 (Ex.PW-2/D-22 ) of IMPCL. All the existing C&F were informed to carry on with their previous operations only till further orders as appointment of new warehouse operator was underway.
39.9 Again, the transcript on the said aspect regarding PW-2 having claimed that agreement is still March 2019 and accused having told him, it is just a piece of paper is not corroborated by recorded conversation (Ex.P-1). The entire transcript Ex.PW- 2/5 is silent on the said aspect.
39.10 PW-2 further while deposing in the court claimed that he asked the accused what he should do. Thereupon, the accused told him that he would take Rs.30 lacs from him for allowing him to depot work till December 2018. Apart from Rs. 30 lacs, the accused will also take 2% of total turn over for liasoning work for other States. Admittedly, this part of the allegation is in contradiction to his complaint ( Ex.PW-2/1).
40. As far as the said aspect of demand of Rs.30 lacs is concerned, the prosecution has relied upon page-48 of the transcript of the recorded conversation wherein the accused stated as under:
"ए नही नही ठीक कह दिया थरटी - -"
40.1 The said sentence seems to have been read in isolation by the prosecution without hearing and understanding the entire conversation. It is apparent from the transcript itself (Ex.PW-2/5 CC No. 250/2019 Page 69 of 98 Collectively ) that the later part of the conversation is unclear and it not clear in what context the said figure was quoted. At page 48 itself of the transcription in the later part the accused further stated as under:
"ए मिला के 10 ही दे दो"
40.2 Thereafter, again the conversation is unclear and the complainant offers that he can pay Rs.20 lacs, but the response to the said offer by the accused again puts a question mark over the context of the conversation. The accused stated as under:
"ए- वो तो दो साल का हो जायेगा फिर "
40.3 So, it is apparent from the said conversation that nothing much can be deciphered about the context of the conversation.It in no way can be said to be the demand of bribe for allwowing him to work till December 2018. Rather, the said amount was stated to be for period of two years.
40.4 Another starkling fact which emerges from the said conversation is while both of them were sitting at Sagar Ratna Restaurant, there was talk about recovery to be effected by IMPCL from M/s Panchsheel Pharmaceuticals Ltd. The second aspect being the terms of business with respect to propriety rights. The major part of the conversation starting from page No.49 of transcript till about end concerns recovery and discussion by both of them regarding the manner, mode or amount of payment. But surprisingly, despite the fact that the said issue of recovery being so prominent in recorded conversation Ex.P-1, the same was never investigated by the CBI CC No. 250/2019 Page 70 of 98 for the reasons best known to them. PW2 and accused should have been confronted with each other as to the context of said conversation specially keeping in view the fact the conversation having inaudible portions. But it appears that no such effort was made and the version of the PW 2 was taken as gospel truth which is against the fundamentals of fair investigation.
40.5 Another crucial fact which emerges from the said conversation (Ex.P-1) as well as transcript (Ex.PW-2/5 collectively) is that some document was prepared by them on the issue of accounts as well as recovery while sitting at Sagar Ratna Restaurant. Page -51, 52 and 53 of the transcript clearly brings forth the fact that the said document was being prepared and accused having offered to even click the pictures of the said document. But again the said document was neither seized nor demanded from the accused by the prosecution.
40.6 The complainant Janak Sharma( PW-2) was further questioned with respect to the recorded conversation and specifically with respect to encircled portion 'B' and 'C' at page 51 of Ex.PW-2/5 (Collectively). As far as the conversation recorded between duration 1.01.552 to 1.02.04, he was questioned as to whether some talks of tax at the rate of 30% - 40% is missing or not to which the complainant answered that the conversation on this point is unclear and he did not say these words. Crucially the court observation has been recorded on the said point as under:
Court Observation: After hearing the conversation, the words spoken by the witness "Tax chala jaayega" are clear and audible.CC No. 250/2019 Page 71 of 98
41. Thus, it is apparent that while talking about the amount of Rs. 20 lacs or 15 lacs (at Page 51), the complainant claimed that on the said amount, he will have to pay tax. The context of the said conversation makes it quite apparent that the amount quoted was certainly not a bribe as there was no question of any tax being levied on the bribe amount.
41.1 PW-2 was then further cross-examined qua the encircled portion 'C' at page-51 of Ex.PW-2/5 (collectively) wherein he admitted that the said conversation was regarding payments made by him to IMPCL, though he simultaneously claimed that nothing is to be recovered by IMPCL from him. The said deposition regarding he being not liable to pay any recovery to IMPCL is apparently against the entire recorded conversation in recorded file No.180914_1738. The conversation at portion 'C' at page no. 51 and thereafter of the transcript Ex.PW-2/5 (collectively) again revolves around certain calculation and the calculation relate to recovery, profit margins etc. The said discussion regarding recovery etc was being simultaneously noted down on a piece of paper which, the reasons best known to the CBI, has not been seized which again puts question mark over the case of the prosecution on the aspect of demand of bribe.
It also does not appeal to the mind of a reasonable person that any official demanding bribe would create evidence against himself by preparing a document of said demand which appears to be a case herein.
41.2 The other independent witness namely Chaman Prakash CC No. 250/2019 Page 72 of 98 (PW-3) though was not able to overhear the conversation between them but he deposed that after the meeting was over the complainant came back at CBI office and he was asked to explain the events. He told that the suspect officer after negotiations has reduced his demand from Rs.30 lacs to Rs.20 lacs and has further agreed for 2% share in the future business. As far as the aspect of demand being negotiated from from Rs.30 lacs to Rs.20 lacs is concerned, it has already been discussed above that the recorded conversation on the said aspect is unambiguous and the context of the amount being quoted is not clear, rather it appears to be against some recovery proceedings.
42. Now, coming to the demand of 2% of the future business as was disclosed to independent witness PW-3 by the complainant/PW2. The said figure of 2% comes in the transcript of recorded conversation at page-52 for the first time and immediately prior to that the discussion was revolving around some recovery amount and figures being noted down on some piece of paper. The relevant conversation around figure of 2% in the transcript as has been highlighted by the prosecution is reproduced hereunder:
ए -- अस्पष्ट .... नही और बाकी लोग भी है ...तो उनको 2 परसेंट के हिसाब से देना सी रिमेनिंग 20 लाख, 2 परसेंट टोटल बिजनेस का 95 दिन -
ए चौहदा की बात हुई है
सी आज 2018 दिनांक 13 अस्पष्ट - - - 13 ना - - -
आप ठीक कर लेना --- प्रोपरायटी पेडिंग में रहेगी CC No. 250/2019 Page 73 of 98 ठीक है जब रेट होगे दे देगे ए प्रोपरायटी कितना आ जाएगा सी अस्पष्ट - - - वो जान खा रहा है मेरी - -
ए हम जो है अगर मान लो 40 की रखे तो भी आप के
पास 40 बचते है इसमें फिर वो - - -
सी 40 रखते है तो 8 परसेंट - - - 10 का फिर हम - -
अस्पष्ट
ए सीधा ही करा देगे ना आधा
सी प्रोपरायटी में कितना परसेंट बताओ हम इसमें
सरटीफाइ कर लेते है
ए आप देख लो जो भी है
सी 5 परसेंट कर दं ू
ए सब समापत कर देंगे
सी सर इस में खर्चा बहुत आता है इतने नही कर पायेगे आगे
8 - - रहेगे -- प्रोपरायटी में 8 परसेंट - - - - तो टोटल 20 दे दें - - सीजीएचएस में 15 से 20 है बाकी सारे 2 परसेंट मेरे पास आ गया 42.1 The said conversation regarding the figure of 2 % and the context in which the said figure was put has been quoted again appears to be ambiguous and context of the same is not clear.
As far as the first quote of 2 % attributed to the accused is concerned, it appears that he is asking for the said 2% to be given to someone else by using the words "उनको". The last figure of 2% is attributed to the complainant wherein the said 2% is claimed by the complainant by stating that it remains with him. It also appears that the said quote of 2% too was written finally CC No. 250/2019 Page 74 of 98 on a piece of paper which was being prepared simultaneously and therefore, it appears that the said figure too either related to recovery proceedings or propriety business which was being discussed between them. The last quote at Page 52 attributed qua the said 2% and the amount of 20 is against the complainant as reproduced above and the only conclusion which can be drawn that the said conversation that the figure 20 was arrived after sum of various figures which does not in any manner corroborate the version of PW-2 or PW-3 regarding the figure of Rs. 20 lacs was reduced from Rs.30 lacs as bribe amount after negotiations. Even 2% figure is for the payment to be received by PW-2.
42.2 Another document relied upon by the prosecution with respect to the said recorded conversation and how the same was taken as demand of bribe is the Verification Memo Ex.PW-2/2. Para-2 of page 3 specifically quotes about two conversation regarding demand of Rs.30 lacs (Tum Mila Ke Thirty Kar do) which was bargained to Rs.20 lacs and further complainant was heard saying "Agay Se Kya Karna Hai". Upon which S.O replied "Agey Job Hi Business Hota Uske 2 Percent Ke Hisaab Se".
42.3 As far as the first quote of "Tum Mila Ke Thirty Kar do" is concerned, it has already been discussed that the context of said figure is not at all clear. Rather, the later part of the conversation reflects that the conversation was related to some other topic as on one occasion accused claimed that "मिला के 10 ही दे दो" and on the offer of Rs.20 lacs paid by the complainant, accused stated "वो तो दो साल का हो जायेगा फिर". Thus, it appears that the context of the said conversation was never investigated and the stray CC No. 250/2019 Page 75 of 98 sentences attributed to the accused were taken as demand of bribe of Rs.20 lacs.
42.4 Now, coming to the next part of the conversation and the response attributed to the suspect officer "आगे जाॅब ही बिज़नेस होता उसके 2 परसेंट के हिसाब से". It does not find reference in the entire recorded conversation in the file no. 180914_1738. The figure of 2 percent find mention at page no.51,52 and 53 of transcript in Ex.PW-2/5 ( collectively) which too seems to be quoted with respect to some other issues and not as demand of bribe as discussed above in Para- 42 & 42.1.
43. In these circumstances, it has to be held that the sole uncorroborated testimony of PW-2 regarding alleged demand of bribe of Rs.20 lacs by the accused in lieu of clearing his pending bills or retaining his firm to do the business till December 2018 is unreliable and untrustworthy. His version is not at all corroborated by the recorded conversation Q1 and thus cannot be acted upon as proving the factum of demand of bribe by accused on 13.09.2018.
ACCEPTANCE OF BRIBE
44. Though it is well settled proposition of law that the prosecution of a public servant under Section 7 of the P.C Act 1988 demand and acceptance of bribe are both sine qua non to constitute the offence and in the present case in hand it has been held here-in-above that the demand of illegal gratification by the accused on 13.09.2018 is not proved.
CC No. 250/2019 Page 76 of 9844.1 It is also the case of the prosecution that the demand of bribe was again raised on next day i.e 14.09.2018 and only thereupon the bribe of rs 10 lakh was paid by the PW2. Thus the next issue to be seen is as to whether there was indeed acceptance of bribe as is alleged by the prosecution by the accused consequent to the laying of trap on 14.09.2018 and it being upon raising of the demand or not.
44.2 The second issue is whether the alleged bribe amount which is stated to have been accepted by the accused is Rs.10 lacs was accepted with consenting mind and knowledge of the same. But before appreciating the facts on the said two issues, the legal position on the point of acceptance requires to be considered and as to whether mere recovery of amount would tantamount to proving of the fact of acceptance of bribe or not. The said issue has been discussed by the Hon'ble Supreme Court in N. Vijay Kumar V. State of Tamil Nadu, AIR 2021 SC 766, the relevant para-12 of the same is reproduced hereunder for the sake of convenience :
"12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala (2009) 3 SCC 779 and in the case of B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC55. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal CC No. 250/2019 Page 77 of 98 gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj(supra) read as under :
"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P. [(2010) 15 SCC 1 : (2013) 2SCC (Cri) 89] and C.M. Girish Babu v. CBI [(2009) 3 SCC 779: (2009) 2 SCC (Cri) 1]."
44.3 Thus, it is well settled preposition of law that mere recovery of cash amount by itself would not prove the factum of acceptance of bribe. It has to be proved by the prosecution beyond reasonable doubt that the accused voluntarily accepted the said money knowing it to be "bribe".
45. In the present case in hand, the sole witness to prove the factum of acceptance or delivery of bribe is Janak Sharma (PW-2). It is alleged that the bribe was delivered while they both were in the car of PW-2 proceeding from the office of the accused to his residence. Despite the fact that Chaman Prakash (PW-3) was again deputed as shadow witness as recorded in Ex. PW2/3 (colly.), he remained out of the scene during the said transaction of delivery and acceptance of bribe. There is no explanation by the prosecution as to the reasons for him not CC No. 250/2019 Page 78 of 98 acting as shadow witness despite directions. Even PW-3 Chaman Parkash remained completely silent on the said aspect.
45.1 Thus it is the version of PW-2 only on the aspect of acceptance of bribe consequent to demand. The corroborative material being the recorded conversation Q2 Ex. PW2/6 Colly. Though again the conversation is replete with term "अस्पष्ट"
(Unclear) and (----) Dash-Dash.
45.2 PW-2 while deposing in the court on the said aspect deposed that after initial process of handing over of the bribe amount after it being treated phenolphthalein powder was over, a call was made from his mobile phone accused to know his whereabouts. The accused asked him to come to his office within 10-15 minutes. Thereafter, the CBI team left for the office of accused. After reaching near the office of the accused, PW-2 alone in his own car went inside the office premises of accused informing that he had reached downstairs. The accused came after a few minutes and was carrying jute bag having a tiffin box in it. Accused sat in the car of PW-2 and asked him to drop him at his residence at Laxmi Bai Nagar, near INA Metro Station.
45.3 The next part of the testimony of PW-2 is the most crucial one on the aspect of acceptance and delivery of bribe amount. He deposed as under:
I told him that "Jo Kal Baat Hui Thi" on which he asked me if I had brought the same. I told him that the packet is lying in the back of the seat. He asked me to get the packet. I was driving the car and while driving I picked the leather bag from the seat and brought it on the front side and asked the accused to take the packet as I was driving the car. The accused took the packet from the leather bag from his both hands and put that packet in CC No. 250/2019 Page 79 of 98 his jute bag.
45.4 So as per PW-2, he initiated the conversation with respect to delivery of bribe by saying the words " Jo Kal Baat Hui Thi"
upon which the accused asked him whether he had brought the same or not. But the said fact when seen in the light of corroborative material i.e recorded conversation Q-2 (Ex.P-2) and transcript Ex.PW-2/6, reflects no such conversation. The first part of the conversation recorded in the fourth file duration of which is 20 minutes is on ancillary issues. The relevant conversation started as per the case of the prosecution, at page-63 of transcript.
45.5 The first relevant portion has been marked as Portion B in the transcript Ex.PW-2/6. The said relevant Portion B is reproduced hereunder for the sake of convenience and clarity:
सी नही कै से जाओगे पैदल फिर आप
ए निकलता हूँ पैदल थोडा सा
सी तो मै वो लाया हूँ तो यही दे दू वो तो
ए हाँ इसी में दे देना
सी या रास्ते में दे दूं
ए हां रोक के ना
सी मै इधर से ही निकल जाउं गा सर
45.6 So, it is apparent from the said relevant conversation that there was no use of words "Jo Kal Baat Hui Thi". Rather, the complainant offered that he had brought the things to deliver.
Further, as per the version of complainant (PW-2), he told CC No. 250/2019 Page 80 of 98 that after the said initial conversation, he picked up the bag from the rear seat of the car and asked the accused to take out the packet having bribe amount which he (accused) took out and kept in his jute bag. But, again the said version of PW-2 is in contradiction to the transcript Ex.PW-2/6. After the first relevant discussion at Portion-B as reproduced above at page-63, again discussion continued and there was some writing work being done by the complainant (PW-2) with respect to the payments. Only after the said detailed discussion and writing work, the packet is taken out from the bag by the accused. Thus, the said version of PW-2 is apparently in contradiction to the sole corroborative material i.e recorded conversation and thus does not inspire confidence as to the sequence of events.
45.7 Another crucial explanation given by PW-2 in the cross- examination is qua the conversation recorded at Portion-A at Page no.63 in Ex.PW-2/6. The said Portion A is produced hereunder:
ए ठीक है ..... अस्पष्ट...... और वो कल आप
कह रहे थे ना टेन तो टेन नही लाये थे थी थे - -
आप टेन कह रहे थे
45.8 PW-2 explained that the said conversation refers to kits handed over to accused by him. So, it is apparent that the conversation revolving figure of 10 pertains to handing over of certain kits and not the cash amount as seems to have been taken/claimed by the prosecution in the chargesheet. The later part of the portion which also revolves around the said figure 10 also cannot be presumed to be delivery of the cash amount.
CC No. 250/2019 Page 81 of 9845.9 Another material conversation which has been relied upon by the prosecution to prove their case that there was delivery and acceptance of Rs. 10 lacs as bribe is Portion-D Page-64 of transcript Ex.PW-2/6. The said portion is also reproduced hereunder:
सी थोडा सा हिसाब बता देता हूँ आप को मै
-- -- सर जिस हिसाब से सटल हुआ था सीएनफ डीपो - को में 20 लाख देना है। 20 में 10 लाख दे रहा हूँ , 14.9 को बेलेंस 10 लाख बचता है ये मै नेकसट वीक करा दूंगा एक रिक्वेस्ट है सर मेरी तो नेकसट वीक ना मेरा कु छ पेमेंट करा देना वहां से मतलब बिल पास जो मेरे पैडिंग चल रही है मेरी एक थी तो वहां पैडिंग चल रही है - - - अस्पष्ट -
- मै 10 दिन बाद वापस आऊं गा दस करा दूंगा सर ये हो गया बाकी चीज का जो है वो -- अस्पष्ट --
-- के पास -- -- अस्पष्ट तो मै आज आपको 10 दे रहा हूं आज की डेट में तो वही पकडा दूं या इसी टाइम पकडाऊ
46. PW-2 was cross-examined on the said portion of conversation marked 'D' wherein he admitted to the fact that the said conversation pertains to the payment to be made by IMPCL to him. Thus, the said admission of PW-2 strikes at the very root of the case of the prosecution regarding delivery of Rs. 10 lacs on that date as a bribe to accused as per the demand of the accused .
46.1 PW-2 thereafter re-examined on the very said portion by the CBI. In the re-examination, he took a somersault and claimed that the said conversation pertains to payment of Rs.10 lacs to be CC No. 250/2019 Page 82 of 98 paid by him to the accused on 14th September and balance to be paid by next week with the request to get his payment released. As far as the last aspect of explanation given in the re- examination requesting for release of his pending payment is concerned, it has already come on record that as on 14.09.2018 no bills of M/s Panchsheel Pharmaceuticals Ltd were pending with IMPCL.Arvind Aggarwal (PW- 9), Head of the Accounts Deparment, IMPCL at the relevant time admitted to the RTI reply furnished in this regard by him. So, in the said backdrop, there was no question of any pending payment being released by IMPCL for which as per PW-2 he paid Rs. 10 lacs as claimed by him in his re-examination qua Portion-D. 46.2 Even the said conversation Portion D has certain missing portion or gap as reflected "अस्पष्ट" (Unclear) and (----) Dash- Dash. Therefore, the entire context of the conversation cannot be deciphered simply by picking stray sentences and it cannot be presumed that there was delivery of Rs.10 lacs and it was accepted by the accused as bribe amount.
46.3 Even in the later part of the conversation at page 64 of Ex.PW-2/6, the discussion revolves around certain bills being pending and complainant requesting to get those bills cleared. Apart from that, certain documentation being done by noting down the accounts of said payment by PW-2 which was neither from the complainant nor demand the CBI for the reason best known to them. PW2 too admitted that he never handed over the said noting to the CBI as recorded in conversation at point C at page 63 of Ex. PW2/6. Surprisingly the said evidence has neither been examined nor filed alongwith the chargesheet. Their is not a CC No. 250/2019 Page 83 of 98 even a whisper in the entire charge-sheet about the said notings and context thereof. Hence adverse inference has to be drawn against the prosecution for suppressing the crucial evidence .
46.4 Again, it has to be observed herein that noting down of the said particulars simultaneously while conversation is going on between the accused and PW-2 on 14.09.2028 cannot be said to be concerning payment of bribe by any stretch of imagination . No prudent public servant would rather take the risk of creating documentary evidence against him when he is indulging in malpractices of taking illegal gratification.
47. Now coming to the sequence of events as were narrated by the complainant/PW2 to the TLO and other members of the trap team as recorded in the recovery memo Ex.PW-2/4 corroborate his version or not. The recovery memo records that the complainant stated that on the way the accused asked him about the money. The said version as recorded in recovery memo or narrated to the trap team members by PW-2 is admittedly in clear contradiction to the transcript Ex.PW-2/6. As discussed above the in none of the conversation accused asked about the money.
OTHER WITNESSES TO TRAP AND THEIR ROLE
48. The other witnesses cited by the prosecution for proving the trap proceedings or the acceptance of bribe amount are Chaman Prakash (PW-3), Om Prakash (PW-4), Inspector Sanjay Upadhyay (PW-7), TLO and Inspector Umesh Kaushik (PW-8). They all were part of the trap team on 14.09.2018 when it was decided to lay trap consequent to the registration of the FIR.
CC No. 250/2019 Page 84 of 9848.1 The first and foremost aspect which puts a serious dent over the case of the prosecution is the contradiction with respect to the role assigned to Chaman Prakash (PW-3) in the trap proceedings. PW-7, TLO alongwith complainant and independent witness PW-3 left the CBI office in the car of the complainant. PW-3 was to act as shadow witness. After reaching Ayush Bhavan as per PW-7, he got down from the car and Chaman Prakash (PW-3) accompanied the complainant till parking of Ayush Bhavan. But Chaman Prakash (PW-3) came out from the premises after some time and joined the trap team. So, sum and substance of the version as given by PW-7, TLO is that initially PW-3 was deputed as shadow witness, but somehow it did not materialise and he returned back and joined the other trap team members. Though he failed to disclose the reasons as to why PW-3 returned back. The said aspect has also been deposed in clear terms by Om Prakash (PW-4) who was also another independent witness. PW-4 in categorical terms deposed that PW-3 was directed to act as shadow witness. He did not depose further on the said aspect as the trap team was divided in two parts, one leaving for Ayush Bhavan and other leaving for the residence of accused. PW-4 was the part of the team which left for residence of the accused. Surprisingly, even post trap memo (Ex.PW-2/4) is silent on the said aspect, despite handing over memo Ex. PW2/3 clearly describing the role of PW-3. PW3 too remained silent on the said aspect and was never confronted by CBI as to the reasons due to which he was not able to act as shadow witness. Even the chargesheet is silent on the said aspect despite the fact that such an important task was assigned to independent witness Chaman Prakash (PW-3) to act as shadow witness. Therefore, in the said backdrop, it has to be concluded CC No. 250/2019 Page 85 of 98 that TLO or PW-12 never enquired from PW-3 as to why he has returned back despite being asked to act as a shadow witness and simply believed and acted upon the uncorroborated version of the complainant Janak Sharma (PW-2). The said deficiency in the case of the prosecution strikes at the very root of the case as has been already referred hereinabove in para-45 and the uncorroborated version of sole witness PW-2 cannot be relied upon. To support this view, I am also guided by the judgment passed by Hon'ble Delhi High Court in Joginder Singh Malik vs CBI 2022/DHC/005401 and the relevant paras are reproduced hereunder:-
"41.A shadow witness, in any given case, must be in a position to depose not only about the passing of money but also about the conversation which takes place between a complainant and an accused so as to find out the basis for the exchange of money/bribe. As expressed by Hon'ble Supreme Court in Meena v. State of Maharashtra (2000) 5 SCC 21, law always favours the presence and importance of a shadow witness in the trap party, who is supposed to be there not only to see but to overhear what happens and how it happens also.
42.Interestingly, the learned Trial Court in para 113 of the impugned judgment, while attempting to differentiate a judgment upon which reliance had been placed by the counsel for accused, went on to observe that the it was proved that shadow witness in this case had seen the accused demanding the bribe by making gesture from his hand. However, the case of prosecution, including the testimony of trap laying officer as well as of shadow witness, has always been that shadow witness could not see any transaction happening between the appellant and complainant which could shred any light on the aspect of demand.."
RECOVERY PROCEEDINGS & CASE PROPERTY
49. Another issue which affects the case of the prosecution is alleged recovery of Rs.10 lacs as bribe amount from accused. It CC No. 250/2019 Page 86 of 98 is the case of the prosecution that PW-2 arranged the said bribe amount of Rs. 10 lacs which comprised of 300 GC notes of 2000/- denomination and 800 GC notes of Rs.500/-. The said bribe amount was kept in one bag having caption "Devgun Sons"
and thereafter placed in the lethe-rite bag of the complainant. The accused thereafter took out the said bag containing bribe amount and placed in his jute bag having his tiffin. The first aspect of the said point is the identity of Devgun Sons bag in which treated currency notes were placed. PW-2 in examination-in-chief claimed that it was a polythene bag having caption Devgun Sons. The said polythene bag was also treated with phenolphthalein powder. Thereafter, the said bag was kept alongwith the money in black colour leather bag. But, surprisingly neither the said black colour leather bag nor polythene bag having caption Devgan Sons or subsequently the jute bag in which the said bribe money was kept by the accused was ever shown to PW-2 in the Court.
49.1 Similarly, Chaman Prakash (PW-3) too while deposing in the court claimed that the treated currency notes were kept in the polybag which was treated with salt and thereafter, the polybag was kept in the black leather bag. But while production of the case property during his examination, no such polybag was produced, rather, one white colour cloth bag containing the currency notes was shown to witness who identified his signatures on the same.
49.2 The other witnesses namely Om Prakash (PW-4) and Inspector Sanjay Upadhyay (PW-7) too claimed that the bribe amount was kept in the cloth bag having caption Devgan Sons CC No. 250/2019 Page 87 of 98 printed on it. Admittedly, it is the case of the prosecution that the the said tainted amount was brought by PW-2 and he only had brought it in two bags i.e one having caption Devgan Sons and other leather bag in which the said treated bribe amount was kept. As per the version of PW-2, the said printed bag was a polythene one which never came to be produced before the Court. No clarification was sought from PW-2 by the prosecution as to the said infirmity of the nature of the bag. He was the best person to explain about the said fact being the owner of the same as per the case of the prosecution.
49.3 The said issue becomes even more crucial when seen in the backdrop that even the link evidence qua deposit of the case property by the TLO and its subsequent movement, if any has also not been proved on record. Therefore, the sanctity of the alleged tainted amount too becomes suspicious.
50. Another issue connected to the recovery of bribe amount is the fact that as per the allegation the accused had kept the bag containing bribe amount in his jute bag wherein he kept his empty tiffin. As per the recovery memo Ex.PW-2/4 besides the recovered bribe amount three empty tiffin boxes were also found in Jute Bag which were taken out immediately and handed over to the family members of the accused later on. Though it is not specified what is meant by the terms 'later on' whether it was same day or any other day.
50.1 Further as per the recovery memo Ex.PW-2/4, the wash of the carrying bag of the accused was also taken with the help of piece of cloth. The said wash too turned pink and the solution CC No. 250/2019 Page 88 of 98 kept in the bottle was marked as BWA in RC No.29A 2018 with the noting 'Bag Wash of the Accused'. So, meaning thereby the wash of the jute bag of the accused was also taken which also turned out to be positive for phenolphthalein powder. PW-2 while deposing in the court claimed that after taking left hand and right hand wash of the accused, wash of his jute bag was taken and thereafter the wash of the black plastic bag was taken. Thus, as per him four washes were taken, the last two being the wash of the jute bag and wash of the plastic bag belonging to him. No such wash of plastic bag finds mention in the recovery memo Ex.PW-2/4 nor was ever forwarded to FSL. There is no explanation forthcoming on the said aspect.
50.2 Chaman Prakash (PW-3) gave altogether different version on the said aspect who claimed that the bag wash of the accused was taken with help of piece of cloth. Thereafter, the bag from which the tainted money was recovered was sealed in separate envelope. The tainted amount was also sealed by the CBI in separate envelope. Again the said version is in contradiction to the contents of recovery memo Ex.PW-2/4 as per which jute bag, the bag of the complainant and the bribe amount were all kept in single envelope marked as bribe money.
50.3 Om Prakash (PW-4) too deposed that the currency notes were sealed in a bag which was signed by him. The jute bag which was also sealed was signed by him. So as per him also, the currency notes in a bag were separately sealed and the jute bag of the accused was separately sealed.
50.4 The last version in this regard is that of Inspector Sanjay CC No. 250/2019 Page 89 of 98 Upadhyay (PW-7), TLO. He in his examination in chief claimed that wash of the bag having caption Devgan Sons was also taken with the help of cloth. The said solution turned pink. Thereafter, the bag and trap money was kept in the yellow envelope and the said envelope was marked as tainted trap money. His examination-in-chief, thus, is silent with respect to the jute bag of the accused whether the wash of said jute bag was taken or not and more importantly whether the said jute bag was seized or not. He in the cross-examination changed his version and claimed that wash of the bag having caption Devgan Sons was not taken and the jute bag was taken. But, no further explanation was given with respect to the seizure of the said jute bag. Thus, his version too puts a question mark over the sanctity of the case property and the manner in which the same was sealed at the spot as noted in recovery memo Ex.PW-2/4.
51. Another material contradiction which has come on record in the testimony of all the said witnesses is the identity of the witness who had taken out the bribe amount from the bag of the accused after his apprehension. PW-7, TLO claimed that the tainted amount was taken out from the bag by independent witness Chaman Prakash (PW-3). Om Prakash (PW-4) too claimed that the tainted amount was taken from the bag by Chaman Prakash (PW-3). Chaman Prakash (PW-3) too claimed that the money was taken by him but contrary to their version, Inspector Umesh Kaushik (PW-8) claimed that the recovery of the notes from the bag was made by independent witness Om Prakash (PW-4). Thus, the said contradiction too dents the case of the prosecution on the aspect of recovery of alleged bribe amount from the possession of the accused.
CC No. 250/2019 Page 90 of 98DEFENCE OF THE ACCUSED
52. Now coming to the aspect of defence of the accused vis-a- vis the lodging of the present case against him as well as specifically the aspect of the "acceptance of the bribe amount on 14.09.2018".
52.1 As far as the lodging of the present case is concerned, it is the defence of the accused as pleaded in his statement under Section 313 Cr.P.C that complainant Janak Sharma (PW-3) had earlier entered into an agreement of C&F Agent through firm of his son M/s Panchsheel Pharma. But despite the continuation of the said agreement, he entered into another agreement under his own partnership firm M/s Panchsheel Pharmaceuticals. Further in terms (clause 2) of the said subsequent agreement, he was under
the obligation to provide Rs.10 lacs interest free security and bank guarantee of Rs.20 lacs. He never deposited the said amount with IMPCL and the accused was seeking compliance of the said condition. Apart from that, he had also committed irregularities for which show cause notice was furnished upon him, but he failed to furnish any reply. The accused also ensured the floating of fresh tender seeking appointment of All India C&F Agent and as complainant firm was found to be sole technically qualified bidder, the tender was cancelled due to which PW-2 had a grudge against him.
52.2 Specifically on the aspect of acceptance of bribe is concerned, it has been argued on behalf of the accused that on the previous day i.e 13.09.2018 when the accused and complainant met at Sagar Ratna Restaurant, the complainant assured to deliver CC No. 250/2019 Page 91 of 98 him the pending orders of CCRAS. Apart from that, he had also assured him to give on the next day 10 sample kits of Chawanprash.
52.3 Accordingly, he was under the impression that PW-2 was delivering the things he had asked for in their previous meeting on 13.09.2018.
52.4 On the very said specific aspect, PW-2 was cross-
examined by confronting him with the recorded conversation in transcript Ex.PW-2/5 (collectively). PW-2 admitted firstly to the aspect of accused having asked him to give details of pending orders and he having promised to do so on the next day. PW-2 further admitted to the fact qua portion Mark A on page 63 of Ex.PW-2/6 pertains to the kit's to be handed over to accused by him (PW-2). The relevant conversation portion Mark A is reproduced hereunder for the sake of convenience:
"ए ठीक है ..... अस्पष्ट...... और वो कल
आप कह रहे थे ना टेन तो टेन नही लाये थे थी थे -
- आप टेन कह रहे थे"
52.5 So, it is apparent from the context of said conversation that there was some discussion on the previous day with respect to delivery of 10 sample kits. But, the issue to be seen is as to whether the said portion is the sole portion qua said delivery of 10 kits or the discussion continued on the said subject . The later part of the said discussion on the very said page no.63 of transcript Ex.PW-2/6 reflects the said figure of 10 against the voice of PW-2 which he claims that he has brought. Thus the discussion continued on the said subject, however the said CC No. 250/2019 Page 92 of 98 discussion seems to have been interpreted by CBI in isolation, without reading it harmoniously with other part of the conversation including portion Mark A. The said conversation portion Mark A and subsequent conversation rather puts a question mark over the claim of delivery of Rs.10 lacs. Rather it probablises the defence of the accused regarding he being under the impression of delivery of 10 such sample kits of Chawanprash and under that impression he having received the parcel from PW-2.
53. Now, coming to the general defence of the accused that PW-2 had a grievance or grudge against him as he was seeking compliance of the terms of the agreement (Ex.PW-9/B) dated 30.11.2017 between IMPCL and M/s Panchsheel Pharmaceuticals Ltd as well as pointing out other irregularities.
53.1 As far as the aspect of irregularities and email being sent in this regard are concerned, the said fact has remained unproved. The emails Ex.PW-2/D3 ( collectively) page 157 and 158 of the application of the accused were confronted to the PW-2 who admitted abut receiving it and further he did not send any response to the said mails. But, the said emails being the electronic document and there being no mandatory certificate for proving the said electronic evidence in terms of Section 65-B of the Indian Evidence Act, it cannot be read in evidence. So, the fact of various irregularities being pointed out by accused and PW-2 having not responded to the same has remained unproved.
53.2 The other limb of the defence of the accused is seeking compliance of various terms of the agreement (Ex.PW-9/B CC No. 250/2019 Page 93 of 98 collectively) dated 27.11.2017 due to which PW2 had grudge against him . The said C & F agreement was executed between IMPCL and M/s Panchsheel Pharmaceuticals Ltd, the partnership firm of PW-2. The firm of PW2 was appointed as C&F agent for CGHS, CCRUM, CCRAS & Other AYUSH Institutions, GNCT Delhi . The clause 2 of the said agreement mandates the C&F cum Institutional Agent i.e M/s Panchsheel Pharmaceuticals Ltd to furnish guarantee of Rs.10 lacs with IMPCL.
53.3 PW-2 was cross-examined on the said aspect wherein he admitted to the fact that he never furnished the bank guarantee pursuant to the agreement Ex.PW-2/D-6 (which is also exhibited as Ex.PW-9/B collectively).Dr. Manjeet Sinha (PW-10) was also cross-examined on the said aspect who too admitted to the fact that M/s Panchsheel Pharmaceuticals Ltd never gave any bank guarantee or formal security against the execution of agreement (Ex.PW-9/B collectively) between IMPCL and M/s Panchsheel Pharmaceuticals Ltd. So, it is apparent that there was no compliance of the mandatory condition of furnishing of the bank guarantee by M/s Panchsheel Pharmaceuticals Ltd which again probablizes the defence of the accused that he was seeking enforcement of the same. This fact also becomes more probable when seen from the subsequent agreements entered between IMPCL and M/s Panchsheel Pharmaceuticals Ltd for the period w.e.f 01.4.2018 to 31.03.2019 on 29.10.2018 (Ex. PW2/D24) after the lodging of the present case. Vide the subsequent agreement Ex. PW-2/D-24, the said condition of furnishing of bank guarantee came to be deleted.
CC No. 250/2019 Page 94 of 9853.4 Another limb of the defence raised by the accused is with respect to the deficiencies in the working of M/s Panchsheel Pharmaceuticals Ltd and he having taken steps to correct the mode of payment against the supplies given by C&F Agent to various institutions of Delhi. It is the case of the accused that before the he joined the position of M.D, IMPCL, M/s Panchsheel Pharmaceuticals Ltd was receiving payments directly in their own account and thereafter transferring to the account of IMPCL which was in violation of the terms of the agreement. The accused ensured stoppage of the said practice which is also one of the grounds for filing of the present complaint against him.
54. Before appreciating the said contention of the defence, the first issue which is to be seen as to what were the terms of the agreement on the said subject. The agreement Ex.PW-9/B (collectively) dated 30.11.2017 needs to considered on the said subject. The Clause-5 of the said agreement specifically put the requirement upon the C&F Agent of raising invoice on the prescribed bill format provided by the first party i.e IMPCL. It further lays down that it shall be verified and signed by the Local Representative authorised by the Principal. The sum and substance of the said condition is that the invoice has to be issued in the name of M/s IMPCL and it has to be signed by the official of IMPCL. Similar is the purport of clause 18 of the agreement. The C&F-cum-Institutional Agent i.e M/s Panchsheel Pharmaceuticals Ltd was only entitled to receive service charges(commission) with respect to the services rendered as per the agreement and that too after the receipt of 100% payment form the State Government.
CC No. 250/2019 Page 95 of 9854.1 PW-2 was also cross-examined on the said aspect wherein he admitted to the fact that initially the payments were directly made to IMPCL, but after 2013 Delhi Government issued the circular that they will accept payment only for the VAT paid in Delhi and therefore, he used to receive payments in his name. As per him, he was receiving payments directly in his account from Delhi Government or its institutions which appears to be in contradiction of agreement Ex.PW-9/B ( collectively).
54.2 On the said issue, Arvind Aggarwal ( PW-9), AGM (Finance), IMPCL was also cross-examined and he clarified the said issue . He also admitted to the fact of such order from Delhi Government though having never seen it. He further admitted to the fact that since 01.01.2017 IMPCL started its own billing from their CFA Office, at Delhi. He further admitted that in the year 2017-2018, IMPCL received an amount of Rs. 20.02 crores directly from the purchasers at Delhi. Thus, his version makes it quite apparent that after January 2017, the practice of payment being received by C&F Vendor i.e M/s Panchsheel Pharmaceuticals Ltd from Delhi Govt. was stopped and the IMPCL then used to receive the payments directly in their accounts for supplied material through C&F-cum-Institutional Agent. The said change occurred during the tenure of accused only which again probablizes his defence. But, surprisingly none of the said factors were investigated during investigation by the CBI.
54.3 In view of the above-said reasons, it has to be concluded that the sole uncorroborated version of PW2 on the demand and CC No. 250/2019 Page 96 of 98 acceptance of bribe by the accused on 14.09.2018 does not inspire confidence and cannot be relied upon .In view of the above discussed infirmities and inherent improbabilities, this Court has to necessarily come to the conclusion that the entire trap proceedings were bristled with suspicious circumstances and doubts. The motive for demand and acceptance of bribe is missing herein. The Prosecution, has failed to establish the foundational facts for raising of the presumption under Section 20 of the Prevention of Corruption Act, 1988, whereas the accused has been able to rebut such presumption on the standard of preponderance of probabilities .
55. Before parting the casual and mechanical manner of investigation in the case in hands needs to be deprecated. Central Bureau of Investigation (CBI) is one the premier investigating authority in India and therefore it is expected from them that they will perform their task in a professional and objective manner , which is missing herein . No doubt the complainant/PW2 had approached them with the allegations of demand of bribe and the said allegations were rightly sent for verification . But the events thereafter leaves a lot to be desired. His version was never tried to be corroborated with the recorded conversation and he was never confronted qua the context of his conversation with the accused. Certain document was prepared on both occasion i.e 13/9/2018 and 14/09/2018 which was never seized and examined, despite it being the most crucial document .No effort was made to ensure the presence of Shadow Witness during verification and Trap Proceedings. Rather attempt has been made to conceal the presence of witnesses present during verification proceedings. The CDR of telephonic conversation between PW2 CC No. 250/2019 Page 97 of 98 and Inspector Raman Shukla during verification reflect that he was too part of the team and played crucial role in it . But his role has been concealed for the reasons best known to CBI. The foundation of the case of PW2 was the pending bills which were not being cleared. The said issue demanded thorough and objective investigation after seizure of bills and debit notes thereof. None of the officers of IMPCL or Parent Ministry were examined as to whether accused had the authority to review his decision of rejecting the bills and any precedent in this regard . The attention of the higher authorities is warranted so that it lives upto its motto "Industry, Impartiality and Integrity".
56. In view of the above detailed findings and observation, I am of the considered opinion opinion that the prosecution has miserably failed prove their case under Section 7 of P.C Act. against the accused on the standard of proving beyond reasonable doubt. Therefore, accused Rajesh Kumar Khatri is acquitted of offence punishable under Section 7 of Prevention of Corruption Act 1988. His bail bonds are cancelled, surety stands discharged.
Accused to furnish bail bond under Section 437-A Cr.P.C.
Digitally signed by GAGANDEEP GAGANDEEP SINGH
SINGH Date: 2024.09.12
Announced in the open Court 03:40:54 +0530
on 11th September 2024 (GAGANDEEP SINGH)
Special Judge, PC Act, CBI-04
Rouse Avenue District Courts,
New Delhi.
CC No. 250/2019 Page 98 of 98