Delhi District Court
Supreme Court Vide Judgment Dated ... vs (1). Rakesh Kumar Jain @ R. K. Jain on 25 February, 2013
1
IN THE COURT OF SH. DHARMESH SHARMA
SPECIAL JUDGE03, CBI
NEW DELHI,DISTRICT, NEW DELHI
CC No. 74/2011
Case ID No. 02403R0078162011
RC No. 5 (E)/2010/EOUIV/New Delhi
In re:
STATE (CBI)
VS
(1). RAKESH KUMAR JAIN @ R. K. JAIN
S/O SH. V. K. JAIN
AK63, 1ST & 2ND FLOOR, SHALIMAR BAGH,
NEW DELHI110088
(2) KISHORE JAIN
S/O PHOOL CHAND JAIN
R/O H. NO. A2/22, 1ST FLOOR, SHAKTI
NAGAREXTENSION NEAR SIDDI MATA
MANDIR, DELHI 110052
Date on which charge sheet was filed 17.10.2011
Date on which charges were framed 21.02.2012
Date on which judgment was reserved 11.02.2013
Date on which judgment was pronounced 23.02.2013
APPEARANCES:
Mr. S. C. Sharma, Ld. PP for the State (CBI).
Mr. Ajay Burman and Mr. SPM Tripathi, Ld. Counsel for the
accused R. K. Jain (A1)
Mr. S. K. Gupta, Ld. Counsel for accused Kishore Jain (A2)
23.02.2013
JUDGMENT
1. Accused Rakesh Kumar Jain @ R. K. Jain (A1), Director (Anti Dumping), Department of Commerce, Ministry of Commerce & State (CBI) v. R. K. Jain & Anr. 1/50 2 Industry, New Delhi has been arraigned for trial along with co accused Kishore Jain S/o Sh. Phool Chand Jain (A2), a private individual on the allegation that during the period March to August 2010 they entered into a criminal conspiracy with one Mr. Binod Aggarwal, one of the Directors of M/s Shivam Iron and Steel Company (for short SISCO), Giridih, Jharkhand (who has since turned approver) to serve the commercial interests of M/s SISCO by corrupt or illegal means or by exercising personal influence whereby accused A1 assured them that he was enjoying good relationship with Mr. Alok Perti, IAS, Additional Secretary and Member of Standing Linkage Committee on Coal and made them believe that he was in a position to exercise personal influence over him and thereby facilitate transfer of coal linkage that has been acquired by M/s SISCO; and in pursuance of the said criminal conspiracy accused A1 contacted Mr. Alok Perti, an IAS for expediting his recommendation for transfer of coal linkage to M/s SISCO and in the bargain demanded Rs.10 lakhs and ultimately collected Rs.7.5 lakhs through accused A2 that was paid by Mr. Binod Aggarwal (approver) out of which Rs.7.25 lakhs were recovered from A1.
FACTS
2. The FIR Ex.PW 17/A, was registered on 19.08.2010. The case of the State (CBI) is that in February, 2010 M/s SISCO took over the State (CBI) v. R. K. Jain & Anr. 2/50 3 ownership of M/s Laxmi Ispat Uhyog, a concern of Sh. Gyan Chand Aggarwal and Anupam Aggarwal and Ors, and applied for approval of long sanding coal linkage with Coal India Ltd. in the name of M/s Laxmi Ispat Udyog for its transfer in the name of M/s SISCO; that Mr. Binod Aggarwal (PW9) one of the Directors of M/s SISCO came in contact with accused A2, a businessman based in Delhi and during conversation when Mr. Binod Aggarwal (PW9) informed him about the problems that were being faced by their company regarding transfer of coal linkage, accused A2 revealed that he had a relative named Mr. Jain, an IAS Officer who would be able to help him in the matter; that A2 from his mobile no. 9810033115 contacted accused A1 on his mobile no. 9810339905 and the latter informed him that he had acquaintance with Mr. Alok Perti, Additional Secretary, Ministry of Coal and could get the work done through him and during the said conversation, initially a demand of Rs. 6 lakhs was made and later on 17.04.2010 accused A1 told accused A2 that demand was for Rs. 10 lakhs as the work was not easy and 50% would be given to Mr. Alok Perti while the remaining 50% would be divided between them.
3. It is the case of the State (CBI) that investigation revealed that in the month of March 2010, accused A1 approached Sh. Alok Perti (PW3) with the request to expedite the process of transfer of coal linkage; that on 07.08.2010, A1 took A2 and Binod Aggarwal State (CBI) v. R. K. Jain & Anr. 3/50 4 (PW9) to the residence of Alok Perti (PW3) and on 9th August 2010 took them again to the office of the Additional Secretary along with Shri Gyan Chand Aggrwal and Anupam Aggrwal, both from M/s Laxmi Ispat Udyog and ultimately the application for coal linkage was approved by the Competent Authority on 16.08.2010.
4. It is the case of the State (CBI) that on source information the mobile of A1 was put under surveillance w.e.f. 24.03.2010 to 20.08.2010 and in the conversation between A1 and A2 on 20.08.2010 it was revealed that A2 informed A1 that out of Rs.10 lakhs he had received Rs.7.5 lakhs and that A2 also informed that Rs. 2 lakhs had been paid to one Sh. Sumit Advocate and Rs. 50,000/ shall be paid afterwards; that A2 also undertook the delivery of Rs. 4 lakhs in his office; that search of the residence and office of accused A1 was conducted on 23.08.2010 in which an amount of Rs.3.75 lakh was recovered kept in the office briefcase of accused A1 in his bed room while Rs.3.50 lakhs was recovered from the bathroom kept in a steal container.
5. It is pertinent to mention here that Mr. Binod Kumar , Director of M/s SISCO was granted pardon on becoming approver vide order dated 09.06.2011. On completion of investigation, the present charge sheet was filed after obtaining sanction for prosecution. CHARGE
6. Needless to state that accused A1 and A2 have been charged State (CBI) v. R. K. Jain & Anr. 4/50 5 for committing offences u/s 120B IP r/w section 8 & 9 of the P. C. Act besides substantive charge u/s 9 of PC Act as against A1 and Section 8 of P. C. Act against the A2. Both the accused on putting the charge pleaded not guilty and claimed trial. PROSECUTION EVIDENCE
7. The prosecution in order to prove its case examined 17 witnesses: The following witnesses were examined from the department:
8. PW2 was Mrs. Anjuli Chib Duggal, Additional Secretary to the Government of India & Chief Vigilance Officer, Ministry of Finance, New Delhi. She deposed that on 05.10.2011 she was posted and functioning as Joint Secretary, Government of India and deposed about the Sanction for Prosecution granted by the then Hon'ble Finance Minister against the accused A1 which order is Ex.PW 2/A. As the original file was made available, during her cross examination request letter from the State (CBI) for grant of sanction along with the draft sanction order were placed on the record which were marked Ex.PW 2/B1 and B2 besides final note of approval for sanction by the Hon'ble Finance Minister Ex.PW 2/B.
9. PW3 was Mr. Alok Perti who was Additional Secretary whose evidence is very crucial to the decision in this case and suffice to state that he more or less towed the line of the prosecution about State (CBI) v. R. K. Jain & Anr. 5/50 6 the role of accused A1.
10. PW4 was Mr. Abhey Kumar Jyotishi, IRS who was on deputation and posted as Director (Coal Production & Distribution) in the Ministry of Coal. He deposed about the file D3 which is regarding movement of the application received from M/s SISCO for transfer of coal linkage which on admission by the defence was marked Ex.PW 3/D who inter alia deposed that A1 had met him to inquire about the progress of the application for transfer of coal linkage.
11. PW5 was Mr. Satish Kumar, Director Anti Dumping & Allied Duties, Ministry of Commerce, New Delhi. He deposed about visiting the office of the State (CBI) in the month of August, September, October in the year 2010 wherein he was made to hear certain tape recorded conversation contained in CD marked Q1 (also Ex.P1). During the examination of this witness, the CD Ex.P1 was played which was containing 92 files each of which was played one by one and the witness identified the voice of accused A1 from the dialogue in the conversation and the transcript prepared in regard thereto have been marked Ex.PW 5/A1 to Ex.PW 5/A93. I shall dwell on the same later on in this judgment.
12. PW7 was Mr. Jagdish Chand Mongia who was Principal Private Secretary to Mr. Alok Perti, Ministry of Coal. He testified about the recorded call conversation between him and A1 in State (CBI) v. R. K. Jain & Anr. 6/50 7 questioned CD marked Q1 and identifying the voice of A1 besides deposing about the transcripts between them Ex.PW 7/A1 to Ex.PW 7/ A4.
13. PW11 was Mr. G. Srinivasan, Under Secretary (Coal Production and Distribution) Ministry of Coal. This witness also deposed about the movement of the file pertaining to the application of M/s SISCO for transfer of coal linkage and certain correspondence about compliance of requisite procedural formalities. He also deposed about A1 inquiring with him about the status of the transfer application.
COMPLAINANT & PUBLIC WITNESSES
14. The main witness for the prosecution was of course Mr. Binod Aggarwal (PW9) who turned approval and supported the prosecution case on whose evidence I would dwell later on.
15. PW6 was Mr.Suresh Kayal who deposed that he visited Delhi on 19.08.2010 on which date he handed over a packet containing Rs.4.5 lakh to accused A2 at the behest of Mr. Binod Aggarwal his friend.
16. PW10 was Mr. Ajay Mishra, Assistant Chief Security Officer from Hotel Le Meridien, Janapat, New Delhi who produced the record of the Hotel regarding stay of Mr. Suresh Kayal from 19.08.2010 to 21.08.2010 which are Ex.PW 10/A to Ex.PW 10/C.
17. PW12 was Mr. Sumeet Gadodia who was a practicing lawyer at State (CBI) v. R. K. Jain & Anr. 7/50 8 Jharkhand High Court and also working as Legal Consultant with M/s SISCO . He deposed that he did not receive any amount of money from A2 in regard to the transfer of coal linkage and he identified the voice of A2 in the recorded conversation contained in CD marked Q1 which is Ex.P1.
18. PW13 Mr. Mahesh Kumar, Assistant Manager from SBI Punjabi Bagh, New Delhi. He deposed that he was a member of the CBI team that conducted search on 23.08.2010 at the residence of accused A1 during which an amount of Rs.7.25 lakhs was recovered along with two mobile sets as per seizure memo Ex.PW 13/A.
19. PW14 was Mr. Vishal Gaurav, Nodal Officer from Bharti Airtel Ltd. He deposed handing over soft copies of call record of mobile no. 9810033115 in the name of accused A2 and that of mobile no. 9810339905 in the name of accused A1 which are Ex.PW 14/A & Ex.PW 14/B respectively.
20. In the category of expert witnesses and from the CBI the following witnesses were examined: PW1 was Sh. M. C. Kashyap, Dy. SP. Special Unit, CBI, New Delhi who deposed about the authorization received from the Ministry of Home Affairs for surveillance of mobile no. 9810339905 of A1 that are Ex.PW 1/A to Ex.PW 1/C. He also deposed segregating 92 intercepted calls and conversation which were found relevant and handing over a sealed State (CBI) v. R. K. Jain & Anr. 8/50 9 CD to IO vide seizure memo Ex.PW 1/D.
21. PW8 was Mr. A. D. Tiwari, Sr. Scientific Officer, GradeI, CFSL, New Delhi. He deposed that on 21.10.2010, he recorded the specimen sample voice of A1 vide CD marked Ex. P1; and similarly on 15.11.2010 recorded specimen voice sample of Mr. Binod Aggarwal and Kishore Jain which CDs are Ex.PII & PIII with memos Ex.PW 8/D & Ex.PW 8/G respectively. He deposed that the specimen voice sample had been sent by him to voice expert CFSL for examination.
22. PW15 was Inspector S. K. Jha. He was member of the CBI that conducted search at the residence of the accused on 23.08.2010. He deposed about recovery of cash of Rs.3.75 lakhs from the office briefcase of accused A1 while Rs.3.5 lakh recovered from steel container kept in the bathroom. He also deposed collecting documents from Inspector M. C. Kashyap vide memo dt. 15.09.2010 Ex.PW1/D. He also deposed about recording statement of witnesses.
23. PW16 was Dr. Rajinder Singh, Principal Scientific Officer, CFSL, New Delhi who conducted forensic voice analysis of questioned CD marked Q1 visavis specimen CDs of accused A1, A2, Binod Aggarwal marked Ex. S1, S2 and S3 and deposed about his report Ex.PW 16/A.
24. Lastly, PW17 was Inspector Himanshu Bahuguna who State (CBI) v. R. K. Jain & Anr. 9/50 10 deposed about the investigation conducted by him. STATEMENT OF THE ACCUSED
25. On the close of the prosecution evidence, both the accused persons were separately examined as per Section 313 Cr.P.C and on putting the incriminating facts and circumstances brought on record, A1 denied the case of the prosecution and submitted that he was innocent and has been falsely implicated in this case. Similar was the defence of A2 on putting the incriminating evidence. A1 in his defence chose to lead evidence.
26. DW1 was Ms. Geeta Chhabra, Director (Cost), Chief Advisor Cost, Department of Expenditure, Ministry of Finance, New Delhi. This witness was examined to suggest that office of the Chief Advisor (Cost) was not competent to consider or process sanction for prosecution and also on an issue about A1 deriving non functional upgradation from PBIII to PBIV and getting Grade Pay of Rs.10,000/ thereby suggesting that he was an official of the level of Joint Secretary protected u/s 6 A of the Delhi Special Police Establishment Act (for short 'DSPE Act'). Certain documents were brought out in her deposition which are DW1/A to DW1/D on which I would dwell later on in this judgment.
27. DW2 was Ms. Manjula Juneja, DDO, Department of Commerce who deposed about the pay and emoluments of accused A1 thereby bringing on record salary statement of A1 that are Ex. DW State (CBI) v. R. K. Jain & Anr. 10/50 11 2/A1 to A4.
28. DW3 was Mr. Mukesh Kumar Jain brother of A1 . He deposed that Rs.3.5 lakh on 16.08.2010 and Rs. 3.75 lakh on 19.08.2010 had been brought by him to get FDR in the name of children of his late brother and that such amount had been handed over to accused A1 on 21.08.2010 to keep in his safe custody.
29. A1 also filed written submissions in terms of section 313 (5) of Cr.P.C.
ARGUMENTS
30. I have given my thoughtful consideration to the submissions made by Ld.PP for the State (CBI) and Ld.Defence Counsel for both the accused persons. I have also perused the oral and documentary evidence carefully and minutely besides going through the written submission filed by the defence.
ISSUE OF PROTECTION U/S 6A OF DSPE ACT 1946
31. A jurisdictional issue was raised by A1 challenging legality of the trial on the ground that during the time when the alleged offences were committed, he was an officer of the level of Joint Secretary in the Central Government and in absence of permission u/s 6A of the DSPE Act from the Central Government to initiate investigation against him, the entire proceedings were vitiated. The said challenge was rejected by this Court vide detailed order dated 05.06.2012 which has not been repeated herein for the sake of State (CBI) v. R. K. Jain & Anr. 11/50 12 brevity. Aggrieved thereof, A1 assailed the order in Criminal Revision No. 448/12 titled R. K. Jain v. Union of India & Ors and Hon'ble Mr. Justice V. K. Shali, Judge, High Court of Delhi, New Delhi vide order 22.08.2012 as modified vide order dated 07.09.2012 directed that "the said order may be treated as tentative and not final".
32. The issue of protection u/s 6A of the DSPE Act becomes alive again and in this context Sh. SPM Tripathi, Ld. Counsel has filed detailed written submissions the gist of which is that his client A1 is an officer of 1985 batch in Indian Cost Accounts Service ICoAS, an organized Group 'A' Services and it is submitted that although he was Director (Costs) in the Directorate General of Anti Dumping & Allied Duties, Ministry of Commerce, Delhi, consequent to acceptance of the recommendations of the 6th Central Pay Commission by the Government of India published in the extra ordinary gadget on 28.08.2008, his client A1 became an officer of the level of Joint Secretary.
33. It has been urged that pursuant to the instructions issued by the Department of Personnel & Training vide O.Ms. No.AB. 14017/64/2008Estt. (RR) dated 24.04.2009 and 21.05.2009, Office of Chief Adviser (Cost), Ministry of Finance vide their Officer Order No.A32013/1/2009CAC dated 25th February, 2010 granted the NonFunctional up gradation in PB4 from Grade Pay of Rs.8,700/ State (CBI) v. R. K. Jain & Anr. 12/50 13 to Rs.10,000/ to Mr. R. K. Jain w.e.f. 15.02.2007 along with other 9 officers, which clearly shows that at the time of alleged occurrence of the event in August, 2010 he was Director but an officer of the level of Joint Secretary.
34. In this regard reliance is placed on document Ex.DW1/B that contains note sheets in the File No. A32013/1/2009CAC at page no. 5 in which the proposal for grant of Nonfunctional up gradation to the officers of 1985 Batch of Indian Cost Accounts Service in Pay Band 4 from Grade Pay from Rs.8,700/ to Rs. 10,000/ was processed. In these notings, reading of internal page 16 suggests that as per DoP&T O.M. Nos. AB.14017/64/2008Estt. (RR) dated 24.04.2009 and 21.05.2009, IAS Officer of 1987 Batch was posted as Joint Secretary at the centre on 15.02.2007. Hence, it is urged that ICoAS officers of 1985 batch became eligible for non functional upgradation to the level of Adviser (Cost) (equivalent to Joint Secretary) under these orders w.e.f. 15.02.2007.
35. Further, in this regard certain instances are pointed out whereby IRS Officer of 1985 batches have been treated as officer of the level of the Joint Secretary since they are being given all allowances, perks etc. as available to the officer of the level of Joint Secretary of the Government of India or equivalent. In order to decide the present issue, it would be trite to refer to the provision of Section 6A of DSPE Act which provides as under:
State (CBI) v. R. K. Jain & Anr. 13/50 14 6A. Approval of Central Government to conduct inquiry or investigation:
(i) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to
(a) The employees of the Central Government of the level of Joint Secretary and above; and
(b) xxxx(omitted as not relevant) (2). xxxx(omitted as not relevant)
36. On meticulous perusal of the said provision coupled with the object for which said provision has been enacted after the decision in Vineet Narain v. U.O.I, and the Office Memorandum dated 24th April 2009 followed by Memorandum dt. 21.05.2009, I do not find any substance in the submissions made by Ld. Defence counsel for the accused A1. The Office Memorandum dt. 24.04.2009 provided for nonfunctional upgradation to officers of organized Grade 'A' Services in PBIII & PBIV, and it reads that upon the recommendations of 6th Pay Commission, the upgradation shall be subject to the following conditions: Whenever an Indian Administrative Services Officer of the State of Joint Cadre is posted at the Centre to a particular grade carrying a specific grade pay in Pay Band 3 or Pay band 4, the officers belong to batches of Organized Group A services that are senior by two years or more and have not so far been promoted to that particular grade would be granted the same grade on nonfunctional basis from the date of posting of the Indian Administrative Service Officers in that particular grade at the Centre.
37. The said office Memorandum further provides that the grant of higher scale would be given on terms and conditions given in State (CBI) v. R. K. Jain & Anr. 14/50 15 Annexure I which provides as many as 10 terms and conditions and conjoint reading of the conditions would demonstrate that nonfunctional upgradation is not linked to the vacancies in Grade and it is envisaged to be a purely nonfunctional upgradation, personal to the officer and it does not bestow any right or claim for promotion or deputation benefits. The condition no.10 of the Annexure I further provides as under :
10) Nonfunctional upgradation to the next higher grade pay granted under the scheme is a fall back option only, to be applied in cases where officers of a particular service have not been granted promotion to a particular grade in normal course according to the due procedure.
38. In the said view of the matter, the nonfunctional upgradation to the next higher grade pay was only to deal with the stagnation of the officers in organized Group 'A' with a fall back option and not entitling them to the protection as in the case of officers of the level of Joint Secretary or equivalent. I am unable to persuade myself to accept the plea that the status of an officer could only be ascertained by the Pay Scale that is being derived by said officer in his Establishment / Administrative hierarchal set up. The object of Section 6A of DSPE Act appears to be that the senior officers of the Government must be protected since they exercise decision making authority on behalf of the Government and they must be insulated for their decision making form vexatious, frivolous, mischievous and malafide complaints. To hold that the Pay Scale of State (CBI) v. R. K. Jain & Anr. 15/50 16 the officers would be sole criterion in such cases would be absolutely unpalatable and regard must be had to functional powers and duties of the officers of the level of the Joint Secretary.
39. At the cost of repetition, mere fact that a Director or Joint Secretary fall or derive the same Pay Scale does not imply that they exercise some power or duties in the Administrative hierarchy. It is pertinent to mention here that DW1 Mrs. Geeta Chhabra examined by the defence brought on record a letter dated 14.11.2011 by the DoP&T which is Ex. DW 1/D which too dispel the notion that nonfunctional upgradation of pay thereby enabling the accused to derive same pay scale as applicable to the officers of the level of Joint Secretary would clothe him with the status of officials as in the case of Joint Secretary or equivalent. Inter alia vide para no. 6 & 7 of the said letter it was provided that the consultation of UPC wasn't required for such upgradation that would have been required if it was regular promotion as in the case of J S level appointment in the Central Government in terms of provision of the Government of India Transaction of Business (Rules). Further, providing that such upgradation was not a matter to be considered by the Departmental Promotion Committee or Selection Committee and the grant of such higher scale did not involve, promotion or selection to the higher post.
40. In the said view of the matter, I find that the plea of A1 that he State (CBI) v. R. K. Jain & Anr. 16/50 17 was an officer of the level of Joint Secretary and meaning of Section 6A DSPE Act deserves to be rejected.
SANCTION FOR PROSECUTION AGAINST A1
41. It is in evidence of PW2 Mrs. Anjuly Chib Duggal that sanction for prosecution dt. 05.10.2011 had been authenticated by her that was granted by the then Hon'ble Finance Minister, Government of India against A1 which is Ex.PW 2/A. During the course of her evidence, the original file pertaining to the sanction was produced and the copies of the notings that went up to the Finance Minister was brought on the Judicial record Ex.PW2/B3. Mere fact that the CBI had sent a draft sanction order Ex.PW2/B2 along with the request letter Ex.PW 2/B1 does not lead to an inference that there was mechanical exercise of powers or nonapplication of mind. There is made no challenge to the fact that PW2 being the Joint Secretary, Government of India in the Ministry of Finance (Department of Expenditure) was not competent to deal with the processing of requisite grant of sanction for prosecution in as much as PW2 was also discharging duties and functioning as of Chief Vigilance Officer. Perusal of the note Ex.PW 2/B3 would amply demonstrate that all the relevant material that had been sent by the CBI were duly considered before granting sanction for prosecution against the accused. Hence, this issue is also clinched in favour of the prosecution and against A1.
State (CBI) v. R. K. Jain & Anr. 17/50
18
APPRECIATION OF EVIDENCE
(I) Application for transfer of coal linkage
42. Perusal of testimony of PW3 Mr. Alok Perti, PW4 Mr. Abhey Kumar Jyotishi and PW11 Mr. G. Srinivasan visavis admitted notings in the file Ex.PW 3/X (Colly) of the Ministry would show that M/s Laxmi Ispat Udyog had set up a sponge iron plant with installed capacity of 30000 TPA at Chandwada, Hazari Bagh and had been granted coal linkage in the category of non cooking coal by the Govt. of India vide letter dt. 30.10.2001. As per minutes of the meeting of the Board of Directors of M/s SISCO held on 11.02.2010 which is Ex.PW 9/B, a decision was taken to acquire / purchase the business of M/s Laxmi Ispat Udyog in terms of agreement dt. 12.02.2010.
43. It is also admitted fact that M/s SISCO vide letter dt. 05.03.2010 through Pramod Kumar Aggrarwal whose signatures at point A were identified by PW9 Binod Aggarwal addressed a letter to Mr. Alok Parti, Additional Secretary Standing Linkage Committee Ex.PW 3/A for change of name regarding coal linkage from M/s Laxmi Ispat Udyog to M/s SISCO. PW11 testified that the said letter was received by CPD Section and through proper channel it came to him on which he wrote comment at point 'B' requesting that "the file be examined" and the note was put up before him from page no. 1 to 19 in D3 on 19.03.2010 which was approved by State (CBI) v. R. K. Jain & Anr. 18/50 19 him and later by the Director on 22.03.2010 by which certain queries were raised on M/s SISCO Ex.PW 9/B8 . It is in evidence that reply was received from M/s SISCO on 25.03.2010 vide letter Ex.PW 3/D1 which was received by PW11 who wrote a comment at point 'A' for "examining the file". Later, vide note Ex.PW 3/D2 and again a letter dt. 31.03.2010 was written by PW11 which is Ex.PW 11/A. Reply to the said letter was received from M/s SISCO dt. 01.04.2010 Ex.PW 3/D5.
44. The crux of the story so far is that there were certain objection for which clarification had been sought by the Ministry and the same were being replied by M/s SISCO upto April, 2010 It may be reiterated that file D3 and D4, that contain relevant notings in regard to how the application for transfer of coal linkage was dealt with, had been admitted by the defence and the same has been marked Ex.A1 and A2 respectively. PW3 Mr. Alok Perti deposed that letter dt. 05.03.2010 Ex.PW 3/A had been dealt initially by Mr. R. K. Mahajan Joint Secretary LA, MOC and the note was put up before him on 26.03.2010 which is available on D3 at page 208 on receiving letter on 25.03.2010 from M/s SISCO on which he wrote a remark "please examine and put up on file" to the JS LA Ex.PW 3/B. Vide note N21 and N22 dt. 09.08.2010 in D3 Ex.A1, it appears that note for approval for change of coal linkage had been dealt with at different levels Ex.PW 3/D and finally the request for change State (CBI) v. R. K. Jain & Anr. 19/50 20 in the name of coal linkage of M/s SISCO was allowed by Hon'ble Minister on 16.08.2010. It is also in evidence that approval so granted was intimated to M/s SISCO vide letter dt. 18.08.2010 Ex.PW 3/E. (II) ROLE OF A1 AND A2
45. While, the manner in which the application for transfer of coal linkage had been dealt with is clearly brought out in the note Ex. A1 and A2, what comes for consideration is the role, direct or indirect, if any, played by A1 or for that matter A2. There is no denying the fact that PW3 Alok Perti and A1 were acquainted with each other as A1 had worked under PW3 as Director when the latter was posted as Joint Secretary( Supply) & Joint Secretary( Shipyards) in the Ministry of Defence during the period 20022006. PW3 stated that although A1 was transfered elsewhere he remained in touch with him and met him occasionally. He also testified that when he was transfered from MOD and posted in August 2008 as Resident Representative Assam in New Delhi, A1 met him few times in connection with booking of rooms in Assam Bhavan.
46. Testimony of PW3 brings out that copy of letter dt. 05.03.2010 Ex.PW 3/B had been handed over to him personally by A1 which was diaried and marked by him to Joint Secretary whereas its another copy Ex.PW 3/D1 had been received in the ordinary State (CBI) v. R. K. Jain & Anr. 20/50 21 course of business and came on the desk of Under Secretary on 25.03.2010. PW3 Mr. Alok Perti also deposed that in August 2010 A1 came to his residence along with other persons and discussed about the pending application of M/s SISCO but he refused to talk since it was official matter and told them to come to his office; that one of the person who accompanied A1 was connected with M/s SISCO while he failed to recall if there was anyone from M/s Laxmi Ispat Udyog. Anyhow, he further deposed that A1 had been accompanied with both the parties i.e Seller as well as Buyer.PW3 also testified that when A1 with both the parties later met him in the office, he directed A1 to meet Sh. R.K. Mahajan, Joint Secretary and sent the papers for processing.
47. It is pertinent to mention here that PW3 indeed stated that he was not offered any bribe or cash by A1 or by the persons accompanied with him. When PW3 was cross examined further, he admitted the suggestion that he was not influenced by A1 in any manner nor persuaded by him in regard to pending application of M/s SISCO. However, he volunteered that A1 met him few times and requested to expedite the transfer of coal linkage. The question that would arise latter for discussion whether the testimony of PW3 that he was not influenced or persuaded by A1 would be sufficient so as to throw away the case of the prosecution u/s 8 or 9 of P. C. Act?
State (CBI) v. R. K. Jain & Anr. 21/50 22 (III) Testimony of the Approver
48. Before the said issue is answered, it is pertinent to mention here that the fact that A1 along with others met PW3 on 09.08.2010 has been corroborated by PW4 Abhay Kumar Jyotishi, PW7 Jagdish Chand Mongia who had no reason to depose falsely or implicate A1. Here the testimony of PW9 Binod Aggarwal assumes significance. PW9 in his testimony deposed that he met A2, a follow businessman in March 2010, and when discussed the issue regarding the pending application for coal linkage, A2 apprised him that one Mr. R. K. Jain, an IAS officer, was having good contacts in Ministry of Coal and he would speak to him for which he demanded Rs. 6 lakhs and believing A2 he paid him Rs. 2 lakhs.
49. PW9 further deposed that as his work was not done, in April 2010 he spoke to A2 about it who assured him that he would clarify from A1 about same and latter in the same month A2 called him and made him speak to A1 who was explained about the pending NOC problem; that A2 met in July 2010 and apprised him that his pending application has become quite complicated and demanded Rs. 15 lakhs to get the work done; that finding no option, he agreed to pay Rs. 10 lakhs and paid advanced amount of Rs. 3 lakhs in Delhi to A2.
50. PW9 then deposed that on 07.08.2010 at the behest of A1 and A2, he met Mr. Alok Perti the then Additional Secretary at his State (CBI) v. R. K. Jain & Anr. 22/50 23 residence sometimes in the evening and after listening to their case, Mr. Alok told them to meet him in his office on coming Monday; that accordingly, PW9 along with Gyan Chand Aggarwal and Anupam Aggarwal met Mr. Alok Perti in his office on 09.08.2010, where they found A1 already sitting with Mr. Parti; that they had met at about 10:30 a.m to 11:00a.m and showed all the relevant documents and Mr. Alok Perti appeared to be satisfied and thereafter they left.
51. PW9 further deposed that after few days A2 called him and informed that his work has done and demanded balance amount; that although Rs. 5 lakhs was remaining balance, he sent Rs. 4.5 lakhs through his friend Suresh Kayat who was going to Delhi and delivered the same to A2. PW9 also deposed that his statement was also recorded during the investigation u/s 164 Cr.P.C which is Ex.PW 9/A.
52. PW9 was subjected to rigorous cross examination by the Ld. defence counsel for the accused persons and I find that the witnesses stood his ground in so far as the payment of money on three occasions to A2 is concerned. PW9 also stood his ground in regard to meeting with Mr. Alok Perti at the behest of A1 at his residence and latter in the office on 7th and 9th August 2010 respectively. Much ado was made in the cross examination of PW9 about the incomplete papers filed for change of coal linkage on State (CBI) v. R. K. Jain & Anr. 23/50 24 05.03.2009 in as much as Sale Deed with M/s Laxmi Ispat Udyog had been executed on 30.04.2010 and for belated filing of other documents on queries raised by the Ministry. I do not see how it could cause any cracks in the prosecution case as fact of the matter is that it was in August only that the matter of transfer got sped up. Much has been urged that A2 had only provided consultancy services to M/s SISCO which was denied by PW9. He was given a suggestion which he admitted as correct that in his mind he gave money to Kishore Jain not for any illegal work and in the same vane he stated that "he was a businessman giving money to another businessman to get his work done".
53. The inference from above sequence of events is crystal clear that A2 was not doing any kind of consultancy work or charity or lawful liasoning for M/s SISCO. Merely because PW9 stated that money was not given for illegal work is not decisive having regard to the whole contextual background of the case. It was pure and simple a case of lobbying or canvassing which to many businessman in this part of the world would be a natural thing. In other words, even payment of any kind of gratification or pecuniary benefit would come very natural to some businessman given the fact that there is always an intention to circumvent the procedures or wriggle out of the red tape or bureaucratic delays.
54. The fact that Rs. 4.5 lakhs had been paid to A2 was State (CBI) v. R. K. Jain & Anr. 24/50 25 corroborated by PW6 Suresh Kayal who deposed that he was handed over Rs. 4.5 lakhs by PW9 to be delivered to A2 at Delhi and A2 met him in Hotel Le Meridien, Janpath, New Delhi and money was paid to him on 19.08.2010. The fact that A6 had indeed been staying in Hotel Le Meridien, Janpath, New Delhi was proved by proving the Guest Register Ex.PW 10/A to Ex. PW 10/C. While there was no direct payment of alleged bribe by PW9 or PW6 to A1, what is not disputed is the recovery of Rs.7.25 lakhs in cash on search of the residence of accused A1 on 23.08.2010.
55. It is pertinent to mention here that after talks on 20.8.2010, the following days were Saturday and Sunday and 23.8.2010 happened to be Monday. No telephonic surveillance had been done on 21st and 22nd August, 2010 as per the IO PW 17 Himanshu Bahuguna and the search conducted on 23.8.2010 as per search list Ex. PW 13/A led to recovery of Rs.3.75 lakhs from the office briefcase and Rs.3.50 lakhs in a steel container kept in the bathroom of first floor of the resident of A1 as brought out in the evidence of PW 13 and PW 15 S. K. Jha. In this regard, DW3 Mukesh Kumar Jain testified that he had brought Rs.3.50 lakhs on 16.8.2010 and Rs.3.75 lakhs on 19.8.2010 from his unit M/s Jain Gas Services running in the name of his wife Ms. Mamta Jain from Hapur and the money was hand over by him to his brother R. K. Jain on 21.8.2010 to invest in fixed deposits in the name of children of his late brother. The said State (CBI) v. R. K. Jain & Anr. 25/50 26 evidence does not inspire confidence. No record from the said firm or from the bank had been produced to substantiate that the said firm at Hapur had an average cash flow of Rs.3 lakhs per day and / or about rupees eight crores on an annual basis. The fact that part of the money was kept in a suspicious or unorthodox manner in the bathroom is unfathomable. Having regard to the events that transpired upto 20.8.2010, it would be safe to infer that money that was recovered from residence of A1 was the same ill gotten money that had been obtained by A2 from PW9 Binod Aggarwal.
56. Now, whether the amount recovered was the entire or part of illegal gratification paid by PW9 to A2 and by the latter to A1? The prosecution in this regard relies on the recorded conversation between the A1 and A2 besides PW9 Binod Aggarwal. (IV) Call records and transaction
57. There is no dispute that A1 was using mobile number 9810339905 which is brought out in the letter of Bharti Airtel Ltd. Ex. PW 14/A and it is also brought out that A2 was having and using mobile no. 9810033915. It was the mobile of A1 alone that was under surveillance. CD mark Q1 Ex. P1 was played during the recording of testimony of PW 5 Sh. Satish Kumar and he not only identified the voice/dialogues attributed to A1 but also deposed about the transcripts of the recorded conversation which are marked PW 5/A1 to Ex. PW 5/A93. It is pertinent to mention State (CBI) v. R. K. Jain & Anr. 26/50 27 that the transcripts were found to be in conformity with the dialogues attributed to speakers viz., accused persons and PW 9 in the recorded conversation contained in CD Q1 Ex. P1.
58. There was hardly any challenge that PW 5 had been a colleague of A1 for a very long time and therefore, in a position to identify the voice of A1. It would be expedient to refer to some of the recorded conversation contained in the transcript to elaborate upon the sequence of events. Recorded conversation vis a vis transcript Ex. P2 would show that on 06.4.2010 at about 10.12.42 there was conference on mobile as amongst A1, A2 and PW 9 in which A1 sought certain clarifications regarding the original documents filed alongwith application for coal linkage. Recorded conversation vis a vis transcript Ex. PW A3 to Ex. PW A53 during the period March and April, 2010 would suggest that A1 and A2 were quite close and there had been several conversation wherein A1 boasted about his closeness with Alok Perti going to the extent of suggesting that Mr. Perti was absolutely under his control and discussing the amount of money that would be paid over to Mr.Perti and to be apportioned as between them.
59. Further recorded conversation vis a vis transcript Ex. PW 5/A54 and Ex. PW 5/A55 indicate that A1 was in conversation with some persons other than A2 or PW9 and inquiring about the status of the case of M/S Shivam Iron and Steel Company and also about the State (CBI) v. R. K. Jain & Anr. 27/50 28 Under Secretary concerned besides other officers who had been dealing with the relevant file and seeking their contact numbers. The recorded conversation contained in transcript Ex. PW 5/A56 to Ex. PW 5/A61 appeared to be between A1 and A2 where A1 was informing A2 about the status of the pending applications and certain clarifications regarding the objections raised by the Ministry. In the recorded conversation vide transcripts Ex. PW 5/A61 and Ex. PW 5/A62 that took place on 9th and 4th August respectively, the conversation is between A1 and A2 where they wanted to have a final discussion with Sh. Binod Aggarwal about the money. In the conversation on 7th August Ex.PW 5/A64, Ex. PW 5/A65, Ex. PW 5/A67 and Ex. PW 5/A68 there is a discussion between A1 and A2 to visit the house of Alok Perti. Then on 09.8.2010 vide transcript Ex. PW 5/A73 A1 and A2 were talking about the time when others referring to Binod Aggarwal and partner of Ispat Udyog would be coming for a meeting.
60. It is then in the recorded conversation on 10.8.2010 the transcript of which is Ex. PW 5/A69 that A1 was in conversation with someone, presumably Alok Perti, who was informed that the case has been sent for approval to the Minister and the final order would be issued in a day or two. The conversation on 18.8.2010 vide transcript Ex. PW 5/A71 suggest that A1 spoke to A2 informing the latter that he had a word from Sahib (presumably State (CBI) v. R. K. Jain & Anr. 28/50 29 Alok Perti) that the work had been done and the file had been received back in the office. The final recorded conversation between A1 and A2 is on 20.8.2010 vide transcript Ex. PW 5/A83 wherein the aspect of illegal gratification is talked about and A1 states that ten had been demanded while seven and a half had been paid and two was to be given to Sh. Sumit, Advocate and they decided that four or five would be given to Sahib (referring to Sh. Perti) and remaining would be shared by them.
61. The evidence discussed above would clearly bring out an inference that A1 and A2 were very close and A1 had been actively pursuing the matter of transfer of coal linkage in favour of M/s SISCO and they were not doing it for charity or some friendly relationship but to derive pecuniary advantage. (V) CHALLENGES BY THE DEFENCE TO THE RECORDED CONVERSATION
62. In the case of Ram Singh & Ors. v. Col. Ram Singh, 1985 (Supp) SCC 611, the conditions necessary for admissibility for tape recorded statements were laid down as under :
1. The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker.
2. The accuracy of the tape recorded statement has to be proved by the maker of the record by satisfactory evidence - direct or circumstantial.
State (CBI) v. R. K. Jain & Anr. 29/50 30 ì 3. Every possibility of tampering with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.
4. The statement must be relevant according to the rules of Evidence Act.
5. The recorded cassette must be carefully sealed and kept in safe or official custody.
6. The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances.
63. Hence, we need to appreciate and evaluate the recorded conversation in the light of the said proposition of law. There have been mounted several attack on the prosecution evidence on the record. Much has been urged by Ld. Defence counsel that the interception orders Ex. PW 1/A to Ex. PW 1/C have not been duly proved as no one was called from the Ministry of Home Affairs and indeed even the correspondence whereby telephonic surveillance of mobile number of A1 9810339905 had been sought from Ministry of Home have not been placed on the judicial record or proved. At the same time there can be no question that although the evidence during the telephonic surveillance appeared to have not been collected as per the mandate of law, in so far as the context and recordings are relevant to the matter in issue, such evidence cannot discarded or made inadmissible in evidence. Reference can be made to decision in State (N. C. T. of Delhi) v. Navjot Sandhu" 2005 CRI. L. J. 3950.
State (CBI) v. R. K. Jain & Anr. 30/50 31
64. Much has also been argued about segregation of 92 calls made by the Special Unit through PW1 DSP M. C. Kashyap on the ground that the basis of segregation have not been explained, and pick & choose policy had been adopted by the CBI besides vehemently urging that the entire conversation had been manufactured, manipulated and tempered by the CBI and issue was also raised about not providing "hash values" of CD mark Q1 to the IO vide seizure memo ex. PW 2/D.
65. Firstly, at no stage of the case there was made any request to preserve or produce the entire call records or seek any mirror image of all the call records from the hard disks which had been recorded during the period of surveillance by the defence. Secondly, it must be understood that surveillance of any kind including telephonic surveillance by the investigating agency is a painstaking task that requires abundance of patience, application of common sense and logic. The briefing of the officers who are involved in surveillance could be general or specific giving fringe inputs about the facts and circumstances of the case. When such is the case, as brought out in the evidence of PW1, I do not see how the task of segregation of calls could be challenged. The task was such that did not involve rocket science and simply required PW1 to decipher the nature and context of the conversation on constant discussion with his colleagues in the Team and his superiors. The State (CBI) v. R. K. Jain & Anr. 31/50 32 gist of the recorded conversation as brought out in the transcript have already been discussed and it is the whole contextual background of the case that must have facilitated the segregation of the recorded conversation one way or the other.
66. Thirdly, I do not see much substance in the plea that when the segregated calls were taken on a CD or pen drive there was possibility of tempering, editing or manipulation. There being an opportunity of tempering is one thing and whether actually any tempering was done is a different thing altogether. As a matter of fact, evidence of any kind or nature, oral or documentary, is capable of being manipulated, tempered or altered. Of course, as the law stands, to appreciate digital evidence stringent test must be applied but that does not mean that a complete negative approach must be adopted. The plea that transfer of data from hard disk to CD or a pen drive must have distorted the data is absolutely absurd. PW 1 in his testimony elaborated that the computers on which the calls were being recorded were under his control; that voice logger had been used on the two systems due to traffic in the sense that there were other mobile numbers which were under surveillance and one system is busy he being the System Administrator automatically assigned the other computer to record the conversation. The unshattered evidence is that there was no manual operation of computer whenever the targeted mobile State (CBI) v. R. K. Jain & Anr. 32/50 33 number was active on the system of the Special Unit, CBI. Mere fact that handing over of the Certificate u/s 65 B of Indian Evidence Act is not indicated vide memo Ex. PW 1/D would not imply that such record was fabricated since such certificate loses significance in view of testimony of PW1 who was in control of the entire system and personally supervising the recording of the telephonic surveillance. Section 65B of Indian Evidence Act is not the whole law of appreciation of electronic or digital evidence and the time tested traditional principles of appreciation of evidence can not be neglected i.e., (i) whether the evidence is relevant; (ii) whether the evidence is authentic and thus admissible in evidence and lastly (iii) does the evidence is worthy of credence or could be relied upon; and (iv) whether the evidence has any probative value to decide the matters in issue?
67. Fourthly, the call records that were played in the court reflected clearly audible dialogues or utterances spoken by the accused persons. There was no background noise or disturbance and the voices were clearly identified by PW5 Satish Kumar, PW7 Mr. Jagdish Chand Mongia and PW12 Mr. Sumeet Gadodia. Fifthly, Sh. Ajay Burman, Ld. Counsel for accused A1 placing reliance on decisions in Rakesh v. State 2010 (2) JCC 1529; Sapan Haldier v. State, 2012 (8) AD Delhi 533 and decision in Criminal Appeal no. 582/2012 titled Raj Kumar v. State decided by Hon'ble Mr. Justice State (CBI) v. R. K. Jain & Anr. 33/50 34 Sanjiv Khanna and Hon'ble Mr. Justice S. P. Garg, (DB) of the High Court of Delhi, New Delhi dated 18.10.2012, urged that the specimen voice of the accused persons that were recorded by PW8 are inadmissible in evidence since no permission had been obtained u/s 311 A of IPC. It is pertinent to mention that the cited cases were not decided on the issue of specimen voice samples and in the cited case of Nilesh Pardhkar v. State of Maharashtra, 2011 Vol. 3 Scale 473, by the Ld. Defence counsel, it was no where laid down that the police or the invetigating agencies does not have the plenary powers to obtain voice samples of the offenders. The plenary powers of the investigating agencies to collect all incriminating material has also been approved in the case of Rabindra Kumar Pal @ Dara Singh v. Republic of India, in Criminal Appeal no. 1259 OF 2007 by their Lordships of the Supreme Court vide judgment dated 21.01.2011.
68. In the 11 Judges' Bench decision of the Supreme Court of India in State of Maharashtra v. Kathi Kalu Oghar (1980) 2 SCC 343, the issue regarding taking of handwriting, photographs or finger prints of offenders were discussed and it was provided that the same was not violative of Article 20 (3) of the Constitution of India as "to be a witness" was not equivalent to "furnishing evidence" in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or State (CBI) v. R. K. Jain & Anr. 34/50 35 exposing a part of the body by an accused person for the purpose of identification.
69. But that is not all. In a recent case of Ritesh Sinha v. State of UP, Crl. Appeal no. 2003 decided on 7th December 2012 ,two Hon'ble Judges of the Supreme Court referred the issue of taking of voice samples / specimen voice to a larger bench for different line of reasoning in regard to taking of such samples during investigation in the background of Section 4 & 5 of the Identification of Prisoners Act 1920. While Hon'ble Ms. Justice Ranjana Prakash Desai traced the origin of such power with the police and the Court u/s 53, 54A and 311 A of the Cr.P.C r/w Section 73 of the Indian Evidence Act and the Identification of the Prisoners Act, Hon'ble Mr. Justice Aftab Alam held that there was no law compelling the accused to give voice sample that must only come from the Legislature and not through the court process. There was a divergent view in regard to word "measurement" including taking of voice sample / specimen voice sample within the meaning of Section 5 of the Identification of Prisoners Act.
70. So long as the issue remains in limbo, what should this Court do? In the case of Sapan Haldier v. State (supra) Hon'ble Mr. Justice Pradeep Nandrajog speaking for the three Judges' Bench of the High Court of Delhi had an occasion to deal with the inclusive definition of "measurement" u/s 5 of the Act and it was observed in State (CBI) v. R. K. Jain & Anr. 35/50 36 para 18 of the judgment that measurement of human body encompass only that standard which relates to physical attributes of the human body. It was further illustrated that height, shape, and size of the nose, eyes , ear or whatever constitute features of the body would relate to measurement of the human body as they relate to the physical features of the human body but not handwriting which is a trait acquired by a person over a period of time. When that is the case, even human speech is something which is a physical attribute of human body unique to each individual, bestowed by the mother nature and fine tuned by culture, society and education and so on. Thus human speech would fall within the definition of "measurement" and the CBI had the inherent powers to obtain such voice samples.
71. Sixthly, although voices and questioned CDs have been linked to A1 and A2, as per report of Ex.PW 16/A by the Forensic voice expert, assuming for the sake of convenience even if such part is discarded, the part of the report that the questioned CDs were found in order in regard to "continuity of their original sound" has not been assailed. During the course of recording of testimony of PW5 or for that matter PW7 or PW9 there was pointed out no unnatural pause, gap or discontinuity in recorded voices so as to suggest any manipulation or editing.
72. Seventhly, much heavy weather is made in regard to 15 calls State (CBI) v. R. K. Jain & Anr. 36/50 37 recorded from 24.03.2010 to 19.04.2010 pointing out that the time of calls registered as per Airtel bill was different than the time of call as per the details given in D24 which is Ex.PW 1/E. I am afraid, I am not impressed. It appears that the timing of the calls recorded in the computer was slow to the extent of 2:42 minutes. In other words, as pointed out by Ld. PP for the State, although, the telephone surveillance was on automatic logger on the computer system, the Airtel timing and the timing of the computer were probably not in sync with each other.
73. Further, the plea that there have been discrepancies in regard to duration of the calls during such period is without any substance because it is a well known fact that the duration of time of call on the server of the Airtel would start from the time a call is answered and not when call is dialled while on the automatic logger the recording of duration starts from the time a call is made or received including the time of the ringing / hello tunes. I may hasten to add that there is indeed problems in regard to two calls on 17.05.2010 and 19.05.2010 which are registered on the Airtel bill shown by the accused but calls recorded in the first week of August up to 20th August 2010 are such that turn the table against accused persons and I do not that any prejudice has been caused to the accused persons in this regard. The principle of falsus in uno falsus in omnibus has no application in criminal law in India.
State (CBI) v. R. K. Jain & Anr. 37/50 38
74. Not much can be read in the defence plea that call records of 21st and 22nd August 2010 have been deliberately withheld. I do not see as to how reference to RC 04/10 where accused R. K. Jain has been arraigned for trial in this Court on different charges has any relevance to this case. PW17 Inspector Himanshu Bahuguna categorically stated that he had seized the CD on 15.09.2010 and after the registration of FIR and entrustment of the case to him, no calls had been intercepted or recorded on 21st or 22nd August 2010. Although, A1 has chosen to place on record the call details reflected in his bill in the month of April to May 2010, he has very carefully avoided to place the call details in his bill for the month of August 2010 and I do not see as to how the version of PW15 Inspector S. K. Jha and PW 17 Inspector Himanshu Bahuguna can be disputed. Much challenge was also made to the fact that CD Q1 Ex.P1 had not been assigned any hash value and the chain of custody of the CD after 15.09.2010 has not been explained till the time the same were received by PW16 in FSL, CBI, Delhi on 19.11.2010. Reference in this regard has been made to decision by Gujrat High Court in Mehmad Hani Shekh v. State of Gujrat 1994 (2) GCR 1191 in which certain requirement had been spilled out for handling of seized narcotics by the Investigating Agencies and its custody / storage. I am afraid I do not see as to how the rigourous requirement of Narcotic can be equated with case property in the State (CBI) v. R. K. Jain & Anr. 38/50 39 nature of digital evidence. Perhaps as a matter of fact, evidence in the nature of digital evidence requires more precaution to be observed for storage to save it from dust, humidity and/or magnetic field and there is nothing to discern that PW15 and PW17 tempered with the seal of the CD marked Q1 Ex.P1 during the interregnum nor the version of PW16 of forensic expert was challenged that there was nothing wrong with the seal of the questioned CD. Thus, in view of the above discussion, I find that the requirements of law to rely on tape recorded conversation laid down in Ram Singh v. Col. Ram Singh (supra) has been met in the instant case.
(VI) CHALLENGE TO THE TESTIMONY OF PW 5 SATISH KUMAR
75. Mr. Ajay Buman, Ld. Counsel for A1 mounted another challenge to the testimony of PW5 Satish Kumar on the ground that same was hit by Section 162 of Cr.P.C and in this regard referred to decision in Ram Kishan Methania Sharma v. State of Bombay, AIR 1955 SC 104.
76. In the cited case it was observed that statement made to police officials during the course of Test Identification Parade of the accused are inadmissible in evidence being hit by Section 162 of Cr.P.C. Taking a cue from the said judgment Mr. Burman, Ld. Counsel canvassed that the testimony of PW5 that during the course of investigation he had identified the voice of A1 and State (CBI) v. R. K. Jain & Anr. 39/50 40 signed the voice identification memo Ex.PW 5/B are hit by Section 162 of Cr.P.C. I am afraid the plea is absolutely misconceived and it would be pertinent to mention here the observation in para 19 of the cited judgment.
The process of identification by the identifying witnesses involves the statement by the identifying witnesses that the particular properties identified were the subject matter of the offence or the person identified were concerned in the offence. This statement may be express or implied. The identifier may point out by his finger or touch the property or the person identified may either nod his head of give his assent in answer to a question addressed to him in that behalf or may make signs or gestures which are tantamount to saying that the particular property identified was the subject matter of the offence or the person identified was concerned in the offence. All these statements express or implied including the signs and gestures would amount to a communication of the fact of identification by the identifier to another person. Such communication are tantamount to statements made by the identifiers to a police officer in the course of investigation and come within the ban of S.162. The physical fact of identification has thus no separate existence apart from the statement involved in the very process of identification and in so far as a police officer seeks to prove the fact of such identification such evidence of his would attract the operation of S. 162 and would be inadmissible in evidence, the only exception being the evidence sought to be given by the identifier himself in regard to his mental act of identification which he would be entitled to give by way of corroboration of his identification of the accused at the trial. (Para 19)
77. A carefully reading of the said observations(particularly the para underlined) shall make it apply clear that if statement made to the I.O is sought to be proved by the I.O alone, that shall be excluded u/s 162 Cr.P.C but not what the witness, who gave such statement, testifies in the court about facts perceived by his senses. Elementary as it may look, the memo of voice identification is only State (CBI) v. R. K. Jain & Anr. 40/50 41 a memorandum of a process adopted by the I.O and not evidence of its contents.
(VII) CHALLENGE TO THE TESTIMONY OF APPROVER
78. Mr. Ajay Burman, Ld. Counsel for the accused A1 relying on decisions in Lal Chand v. State of Haryana, AIR 1984 SC 226; Shivappa v. State of Karnataka, 1995 SSC Crl. 323; Rakesh v. State, 2010 (2) JCC 1529 by the High Court of Delhi urged that the Ld. MM who recorded the statement u/s 164 Cr.PC Ex.PW 9/A dated 26.04.2011 did not make a sincere endevour to ascertain voluntarily nature of the confession; that the Ld. MM did not ask PW9 Binod Aggarwal the reason why he wanted to make a statement that would ultimately go against his self interest in the course of trial; that Ld. MM did not administer the caution, warning the accused specifically about the first part of sub section II of section 164 Cr.P.C that "he was not bound to make a statement and that if he makes one it may be used against him as evidence in relation to his complexity in the offence at trial" and that Ld. MM failed to ensure against any kind of torture or absence of extraneous coercion and did not grant him time for reflection.
79. Let me say that perusal of statement u/s 164 Cr.P.C recorded by the Ld. MM undoubtedly brings out such shortcomings in the recording of statement of Binod Aggarwal. Having said that, the plea that the defective statement u/s 164 Cr.P.C Ex.PW 9/A was no State (CBI) v. R. K. Jain & Anr. 41/50 42 statement in the eyes of law and that an approver would continue to be an accused making his statement recorded in the court inadmissible in law is not legally tenable.
80. Suffice to state that irregularities committed would not vitiate the grant of pardon to the witness u/s 306 Cr.PC granted by the Ld. Special Judge vide order dated 09.06.2011. The proposition of law that emerges from the cited case is that noncompliance of requirement of Section 164 Cr.PC makes the statement of the approver unworthy of credence but if statement of approver thereafter is recorded in the Court, that must be appreciated on its own to ascertain whether it inspires confidence or worthy of credence. Further, the proposition of law that emerges is that if statement u/s 164 Cr.P.C has not been recorded in a lawful manner, in case it is sought to be used against the accused, who has given the said confession, who is facing the trial, the whole statement shall be inadmissible. It is but obvious that a distinction has to be made as between statement u/s 164 Cr.P.C recorded in the case of accused facing trial and one involving an approver. Even in the case of an approver, such statement, if not recorded as per law, might be rendered inadmissible where the prosecution moves for rescinding of the tender of pardon granted u/s 308 Cr. P.C.
81. Mr. Burman, Ld. Counsel for A1 also vehemently urged that State (CBI) v. R. K. Jain & Anr. 42/50 43 Binod Aggarwal during the course of investigation had moved an application seeking anticipatory bail on 30.08.2010 Ex.PW 9/D3 along with the Affidavit Ex.PW 9/D4 which was ultimately dismissed as withdrawn with liberty to move afresh, if needed by Ld. Special Judge, on 09.09.2010, and he pointed out that another application was moved seeking anticipatory bail by Binod Aggarwal on 21.10.2010 Ex.PW 9/D6 accompanied with an affidavit Ex.PW 9/D7 which was again dismissed in default on 08.11.2010. The point that Ld. Defence counsel canvassed was that the application of the applicant / accused Binod Aggarwal at that time made an averment that he appeared before the CBI and gave his statement on 23.08.2010, 06.06.2010, 09.09.2010, 22.09.2010, 23.09.2010, 24.09.2010, 08.10.2010, 11.10.2010, 12.10.2010 and lastly on 20.10.2010; and he further averred that he was innocent and not involved in the crime and had nothing to do anything with R. K. Jain or anybody else. It was urged that such statement of the accused Binod Agagrwal has not been provided to the defence and the averment about having no connection with the accused or with the accused persons would show that accused was won over or coerced by the CBI to fabricate the case against the accused persons.
82. First thing first, there is nothing in the application to suggest that the statement given by accused Binod Aggarwal on the above State (CBI) v. R. K. Jain & Anr. 43/50 44 said dates had been recorded u/s 161 Cr.P.C and no such question was put to the IO. Secondly, at no stage of the case, there was raised any demand by the defence to supply such copies either. Thirdly, mere fact that accused Binod Aggarwal before becoming an approver made some statement exculpating himself, that was incomplete or without any specific detail, would not go to suggest that he was falsifying the facts as he had a constitutional protection against self incrimination. Fourthly, in any given case when the investigating agency or the prosecution seeks to make an accused approver, there are bound to be some behind the curtain negotiations, persuasion, allurement and with the growing crime rate in our country which is reaching an alarming proposition, I do not see why the hands of the Investigating Agency must be tied behind their backs or they be rendered passive in the task of collecting evidence from an accomplice so as to strengthen their case. It is a myth that the protections under the criminal law are made only for the benefit of the accused and the larger interest of the State to prosecute offenders who are committing heinous or white colour crimes with quality evidence can not be ignored. The criminal trial has to be fair to the accused as well to the aspirations of the people represented by the prosecution. And before parting on this issue, at the cost of repetition, the testimony of the approver PW9 stands corroborated from other material discussed above and State (CBI) v. R. K. Jain & Anr. 44/50 45 is worthy of acceptance against the accused persons. (VIII) Criminal Conspiracy
83. In appreciating the point of conspiracy, regard may be had to Section 10 of Indian Evidence Act which provides as under:
10. Things said or done by conspirator in reference to common design Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertain by anyone of them, is a relevant fact as against each of the persons believed to so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.
84. Section 120B of IPC then provides punishment for criminal conspiracy which is defined u/s 120A of IPC as under:
120A. Definition of criminal conspiracy when two or more persons agree to do or cause to be done (1) an illegal act, or (2) an act which is not illegal by illegal means such as agreement is designed a criminal conspiracy.
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation : It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
85. Before proceeding to decide this issue, one must have a look at section 32 of IPC which provides that "wherever reference is made to any act done that would also extends to "illegal omissions".
State (CBI) v. R. K. Jain & Anr. 45/50 46 Section 33 of IPC then further provides that the words "act" denotes "a serious of acts" as well. The word "illegal" is further defined by Section 43 of IPC to connote "application to everything, which is an offence or which is prohibited by law,or which furnished ground for civil action". In the instant case, the evidence that A2 had been working in connivance with A1 was something which was not only prohibited by law but also could have exposed him to civil action for false allurement and damages. Explaining the law on criminal conspiracy, in the case of Ram Narain Poply v. Central Bureau of Investigation, AIR 2003 SC 2748 , it was observed that "A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence whenever any one of the conspirators does an act or series of acts he would be held guilty under S. 120B of the I.P.C." (Paras 349, 354):
86. In the case of State v. Nalini [1999 (5) SCC 253], the following pertinent observations were made (at paragraph 662) :
"In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception State (CBI) v. R. K. Jain & Anr. 46/50 47 to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.
In Nalini's case, Wadhwa, J pointed out, at page 517 of the SCC, the need to guard against prejudice being caused to the accused on account of the joint trial with other conspirators. The learned Judge observed that "there is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy". The pertinent observation of Judge Hand in U.S. v. Falcone (109 F. 2d,579) was referred to: "This distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders." At paragraph 518, Wadhwa, J, pointed out that the criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. The learned Judge then set out the legal position regarding the criminal liability of the persons accused of the conspiracy as follows :
"One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
87. It was further observed in the cited case that:
One more principle which deserves notice is that cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design State (CBI) v. R. K. Jain & Anr. 47/50 48 and its execution. K.J. Shetty, J, pointed out in Kehar Singh's case that "the innocuous, innocent or inadvertent events and incidents should not enter the judicial verdict." AIR 1988 SC 1883 : 1989 Cri LJ 1.
88. In the said background of proposition of law on the issue of criminal conspiracy, the cumulative effect of the evidence led demonstrate meeting of mind, active, conscious as well tacit participation of the accused persons with each other. In other words, the sequence of events coupled with the recorded conversation and evidence of PW 9 corroborated by PW 6 Suresh Tayal the provisions of section 10 of the Indian Evidence Act could very well be evoked here thereby reading the act and conduct of A2 in procuring the ill gotten gratification as the circumstance against A1 brings out an element of conspiracy between them. SECTION 8 & 9 OF THE P. C. ACT
89. Section 8 of the P. C. Act penalizes a private person where he accepts or obtains or agrees to obtains or to accept or attempts to obtain, from any person, for himself or for any other person, any gratification irrespective of the motive or reward for inducing, by corrupt and illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act or to show favour or disfavour to a person, or to render or attempt to render any service or disservice to any person with the Government.
90. Section 9 of the P. C. At is applicable where a public servant State (CBI) v. R. K. Jain & Anr. 48/50 49 attempts to do all the aforesaid action by exercise of personal influence and where such public servant accepts gratification to carry or attempt to do same species of acts by exercise of personal influence.
91. In the present case, although there is no evidence that PW 3 Sh.
Alok Perti was offered any illegal gratification, the prosecution has been able to clearly bring home that A1 and A2 entered into a criminal conspiracy wherein A2 persuaded PW 9 Sh. Binod Aggarwal to carry out the work of his company M/s SISCO on payment of illegal gratification. The demand and acceptance of illegal gratification by A2 and its handing over to A1 who exercised personal influence upon PW 3 Alok Perti clearly bring home the guilt of the accused. The words "personal influence" are a wide terms that would include any act or conduct by a person to win over or persuade or over reach or canvass or counsel other who is public servant, whether subordinate or superior, concerning something relatable to discharge of public duties by the other. It would encompass such kind of influence that is not falling in the discharge of ones official duties with dishonest intention or an animus to gain pecuniary or any other tangible advantage. That being the case, A1 being posted as Director in the Ministry of Homes had no business to inter middle in something that was not relatable to his department. A1 had no prior acquaintance with State (CBI) v. R. K. Jain & Anr. 49/50 50 PW 9 Binod Aggarwal and neither he nor A2 were doing the entire work for charity or out of friendly relations or gratuitously. It is but apparent that acting as middleman they tried to take pecuniary advantage of closeness with PW 3 Sh. Alok Pert. PW 9 was an easy prey who had no time to await long for the transfer of coal linkage and A1 and A2 devised an ingenious plan to take advantage and reap benefits in the process.
FINAL ORDER
92. I, therefore, find that prosecution has been able to bring home the guilt of the accused beyond reasonable doubt. Hence, accused Rakesh Kumar Jain @ R. K. Jain S/o Sh. V. K. Jain and accused Kishore Jain S/o Sh. Phool Jain are hereby convicted for committing offences u/s 120 B of IPC read with section 8 and 9 of the P. C. Act and also for substantive offence u/s 9 and 8 of the P. C. Act.
93. Let they be heard on the point of sentence on Monday i.e 25.02.2013.
ANNOUNCED IN OPEN COURT TODAY i.e ON 23.02.2013 (DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI DISRICT x State (CBI) v. R. K. Jain & Anr. 50/50 51 IN THE COURT OF SH. DHARMESH SHARMA SPECIAL JUDGE03, CBI NEW DELHI,DISTRICT, NEW DELHI CC No. 74/2011 Case ID No. 02403R0078162011 RC No. 5 (E)/2010/EOUIV/New Delhi U/s 120 B r/w Section 8 and 9 of P. C. Act In re:
STATE (CBI) VS (1). RAKESH KUMAR JAIN @ R. K. JAIN S/O SH. V. K. JAIN AK63, 1ST & 2ND FLOOR, SHALIMAR BAGH, NEW DELHI110088 (2) KISHORE JAIN S/O PHOOL CHAND JAIN R/O H. NO. A2/22, 1ST FLOOR, SHAKT NAGAREXTENSION NEAR SIDDI MATA MANDIR, DELHI 110052 Date on which charge sheet was filed 17.10.2011 Date on which charges were framed 21.02.2012 Date on which judgment was reserved 11.02.2013 Date on which judgment was pronounced 23.02.2013 APPEARANCES: Mr. S. C. Sharma, Ld. PP for the State (CBI).
Mr. SPM Tripathi, Ld. Counsel for the accused R. K. Jain (A1) Mr. S. K. Gupta, Ld. Counsel for accused Kishore Jain (A2) 25.02.2013 ORDER ON THE POINT OF SENTENCE.
1. Heard on the point of sentence and perused the record.
State (CBI) v. R. K. Jain & Anr. 51/50 52
2. Mr. SPM Tripathi, Ld. Counsel for the convict Rakesh Kumar Jain submits that convict is about 51 years of age and the sole bread earner of his family; that he has a wife, one son about 25 years of age and another daughter about 22 years of age, both of whom are studying. It is also pointed out that convict is also taking care of his old aged parents residing with him. It is also pointed out by Ld. Defence counsel that convict R. K. Jain was arrested on 19.10.2010 and he remained in JC till 09.11.2010. It is further pointed out that convict was put under suspention by his department on 23.8.2010.
3. As regards convict Kishore Jain, Mr. S. K. Gupta, Ld. Counsel submits that convict is about 54 years of age and also the sole bread earner of his family having a wife and two sons besides old aged parents who are residing in their native place in Jhumritalia, Jharkhand. It is clarified that convict Kishore Jain had not been arrested during the investigation nor remained in judicial custody.
4. Ld. Counsel for both the convicts have urged to take a lenient view in favour of both the convicts.
5. Per contra, Mr. S. C. Sharma, Ld. PP for the State (CBI) has urged that no mitigating circumstances exists in this case so as to take a lenient view in favour of the convicts and it is urged that maximum punishment be awarded under the law.
6. It bears repetition that convicts have been found guilty of entering into criminal conspiracy to derive pecuniary advantage in State (CBI) v. R. K. Jain & Anr. 52/50 53 the matter of transfer of coal linkage to M/s SISCO and during the period March, 2010 to 09.8.2010, convict R. K. Jain going beyond the call of his duties with ulterior motives pursued the matter of coal linkage with his previous boss PW 3 Sh. Alok Perti while convict Kishore Jain remained in touch with PW9 Binod Aggarwal and procured illegal gratification from him and the recovery of a part of the ill gotten money amounting to Rs.7.25 lakhs had been made from the residence of convict R. K. Jain.
7. This case is a stark example of nexus between businessmen and bureaucrats resulting in corrupt activities through the cult of middlemen specializing in public relation and public networking in our Country. The convicts acting in a very clever manner were able to stall the process of transfer of coal linkage for a period of three months due to the opacity of the rules and thereby forced PW9 Binod Aggarwal to grease their palms in order to get his work done. Convict R. K. Jain blatantly compromised with his integrity expected from a government servant in such a senior position. He had no business to inter meddle in the affairs of another department and he exercised personal inference over his previous boss in order to derive pecuniary advantage. On the other hand convict Kishore Jain was acting as an unscrupulous businessman trying to gain easy money without any sense of morality.
8. In the totality of the facts and circumstances of the case, I State (CBI) v. R. K. Jain & Anr. 53/50 54 sentence the convict Rakesh Kumar Jain to undergo rigorous imprisonment for a period of three years u/s 120B r/w section 8 and 9 of the PC Act and also pay fine of Rs. 1,00,000/ in default to further undergo RI for a period of six months.
9. I further sentence the convict Rakesh Kumar Jain to undergo rigorous imprisonment for a period of three years u/s 9 of the PC Act and also pay fine of Rs.1,00,000/ in default to further undergo RI for a period of six months.
10. So far as convict Kishore Jain is concerned, I sentence the convict to undergo rigorous imprisonment for a period of two years u/s 120 r/w section 8 and 9 of PC Act and also pay fine of Rs. 50,000/ in default to further undergo RI for a period of three months.
11. I further sentence the convict Kishore Jain to undergo rigorous imprisonment for a period of two years u/s 8 of the PC Act and also pay fine of Rs.50,000/ in default to further undergo RI for a period of three months.
12. All the sentences shall run concurrently. Benefit u/s 428 Cr.PC.
shall be given to both the convicts.
13. At this stage, two separate applications are moved u/s 389 of Cr.P.C on behalf of the convicts seeking suspension of sentence and grant of bail as they wish to challenge the Judgment by filing an appeal in the High Court. Copy given to Ld. PP for the CBI who has State (CBI) v. R. K. Jain & Anr. 54/50 55 opposed the same.
14. Heard. Both the convicts have been regularly appearing in the trial and unlikely to abscond away. Convict Kishore Jain has deposited fine of Rs. 1,00,000/ and has been issued receipt no. 0461430 dt. 25.02.2013. In so far as convict R. K. Jain is concerned request is made to allow him to pay the fine tomorrow morning.
15. Convict Rakesh Kumar Jain is admitted to bail on furnishing PB&SB in the sum of Rs.50,000/ with one surety in the like amount for a day with direction to pay the fine imposed positively by tomorrow morning and the sentence is suspended till 26.02.2013. Bail bonds submitted by the convict Rakesh Kumar Jain is accepted. Convict Kishore Jain is also admitted to bail on furnishing PB&SB in the sum of Rs.50,000/ with one surety in the like amount as per section 389 (3) Cr.P.C. Bail bonds submitted by the convict Kishore Jain is accepted and the sentence is suspended till 26.4.2013.
16. Before parting with this order, it is directed that an amount of Rs.7.25 Lakhs that had been seized from the residence of convict R .K. Jain is hereby directed to be confiscated to the State in terms of section 26 of the P. C. Act.
17. Copy of the judgment dated 23.02.2013 and order on sentence dated 25.02.2013 be given free of costs to both the convicts. File be put up tomorrow for deposit of fine, if any, by convict R.K. Jain State (CBI) v. R. K. Jain & Anr. 55/50 56 and further orders.
ANNOUNCED IN OPEN COURT TODAY: ON 25.02.2013.
(DHARMESH SHARMA) SPECIAL JUDGE 03,CBI NEW DELHI.
State (CBI) v. R. K. Jain & Anr. 56/50