Delhi District Court
Cc No.14/2008 Cbi vs . M.B. Pahari Etc. Page 1 Of 71 on 12 October, 2015
IN THE COURT OF SANJAY GARG-I : SPECIAL JUDGE-IV,
(PC ACT) CBI: DELHI.
CC No. 14/2008
ID No. 02401R0143682003
Central Bureau of Investigation (CBI)
Versus
1. M. B. Pahari (Abated)
Dy. Director General, (U/s),
DDK, Delhi
R/o. Q-14, Andrews Ganj, Ext.,
New Delhi 110049. ... since deceased
2. Smt. Chitra Pahari
W/o. Late Shri Malay Bikas Pahari,
R/o. Q-14, Andrews Ganj, Ext.,
New Delhi 110049. ... Accused no. 2
3. Rakesh Gupta
Manging Director,
M/s. Softline Media Ltd.,
M/s. Victoria Publicity Pvt. Ltd.
37-38 Rani Jhansi Marg,
New Delhi. ... Accused No. 3
Case arising out of: FIR No. RC-68(A)/2000/DLI
Date of FIR : 04.12.2000
Date of Institution : 25.4.2003
Date of conclusion of
Final Arguments : 23.09.2015
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 1 of 71
Date of Judgment : 07.10.2015
JUDGMENT
FACTS 1.0FIR No. RC-68(A)/2000-DLI in this case was registered on the basis of written complaint of Shri P.C. Sharma, Dy. S.P, CBI, ACB, New Delhi, wherein he has alleged that Dr. M.B. Pahari (A-1) while working as Director, Doordarshan Kendra, Delhi and later on as Dy. Director General entered into a criminal conspiracy with Rakesh Gupta (A-3), Managing Director of M/s. Softline Media Ltd. and owner of M/s Rastriya Vision, 37-38 Rani Jhansi Marg, New Delhi. Sometimes in during 1996 in pursuance to said criminal conspiracy, A-1 obtained Rs.3.5 Lacs from A-3 for part cost of Flat No. 203, South Ex. Plaza and DDA MIG Flat No. 143, Sector-I, Dwarka, which were purchased by him in the name of his wife Smt. Chitra (A-2). A-1 accepted the Cheque/Pay Orders from A-3 without consideration as he was dealing with various proposals of M/s. Soft Line Media Ltd. and other Firms owned by Rakesh Gupta (A-3). A-1 worked as Director, Delhi Doordarshan Kendra (DDK) since June, 1993 to March, 1998 and as Dy. Director General w.e.f. 25.03.1998 to 11.08.1999. M/s. Softline Advertising Pvt. Ltd. was registered with Additional Registrar of Companies, NCT of Delhi & Haryana on 21.10.1992. Shri Dinesh Gupta & Smt. Shakuntla Gupta are other Directors of M/s. Softline Advertising Pvt. Ltd. alonwith A-3. The main object of this Company was to carry on business of Advertising Agency, providing Advertising Consultancy, designing & CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 2 of 71 manufacturing Advertising objects. M/s. Soft Line Media Ltd. was registered with Registrar of Companies NCT of Delhi & Haryana on 31.03.1997. A-3, Shri Urmil Gupta and Shri Ishwar Prakash Gupta are its Directors and the main object of the Company was to carry on the business of Advertising Agency for providing to Advertisers complete range of advertising service and to carry on direct marketing, Sales, Promotion, Public Relation etc. M/s. Victoria Publicity Private Ltd. was registered with Additional Registrar of Companies, NCT of Delhi & Haryana on 21.08.1995 with A-3 and Smt. Urmil Gupta as its Directors. This Company used to carry on the business of designing& manufacturing advertising objects etc. M/s. Rastriya Advertising Agency and M/s. Rastriya Vision are proprietorship concerns of A-3.
1.1Investigation revealed that various proposals/sponsored programme and for marketing the in-house programmes of Delhi Doordarshan Kendra are submitted by outside Producers to Director, DDK, Delhi. All the sponsored programmes upto 13 Episodes are to be previewed by a Selection Committee consisting of Director of DDK, Chief Producer /Dy. Director of Programmes, Station Engineer and one Officer from All India Radio or a Press Information Bureau, as per existing rules of Directorate General Doordarshan issued on 21.03.1994 by Controller of Programmes.
1.2Investigation revealed that Programmes/Proposals of 'Drishti' of M/s. Rastriya Advertising Agency for 23 Episodes, 'Sakhi Saheli' for 52 episodes, 'Chahal Pahal' for 39 episodes and 'Naya Daur' for 26 episodes, (all of M/s. Rastriya Vision) and Programmes 'Lokvani' for 52 CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 3 of 71 episodes, 'Parikrama' for 33 episodes and 'Janvani' for 13 episodes (all of M/s. Soft Line Media Ltd.) were submitted by A-3 and approved by A-1 without the recommendation of the Preview Committee.
1.3Investigation revealed that as quid Pro-quo seven demand drafts /Pay Orders/ Cheques worth Rs.8.5 Lacs were issued by A-3 in favour of Gulraj Narang, M/s. Atree Developers, DDA Housing,M/s Ornate Apartments, towards the payment of Flats booked in the name of A-2 at Mumbai, Delhi & Calcutta, during 1996 to 1999. All the demand drafts/Pay Orders/Cheques were issued from accounts of M/s. Rastriya Advertising Agency, M/s. Rastriya Vision, M/s. Victoria Publicity Services, M/s. Soft Line Media Ltd. and Personal Accounts of A-3 held with SBI Versova Mumbai, Canara Bank, Pitampura, Delhi, PNB Paharganj, Delhi, Bank of India, Ansari Road, New Delhi and Bank of America, Barakhamba Road, New Delhi respectively. A-3 used to give the obtaining of such Pay Orders/ Cheques/Drafts, the colour of loan to M/s. Chitra Associates and the same was not paid back.
1.4 On the basis of investigation all the three accused persons were charge sheeted for commission of Offence punishable U/s. 120B IPC r/w Section 11, 12 & 13(2) r/w 13(1) (d) of PC Act, 1988. A-1 was also charge sheeted for substantive offence U/s. 11, 13(2) r/w 13(1) (d) of P. C. Act. A-2 & A-3 were chargesheeted for substantive offence punishable U/s. 12 & U/s. 14(b).
2.0 A-1 died and proceedings against him stand abated vide order dated 03.03.2014.
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 4 of 71CHARGE 3.0All the three accused persons were charged on 05.12.2005 for the commission of Offence U/s. 120 B IPC r/w. 11, 12 & 13(2) of PC Act to which they pleaded not guilty and claimed trial.
3.1A-1 was separately charged on 05.12.2005 for the commission of offence punishable U/s. 13(2) r/w. 13 (1) (d) & U/s. 11 of PC Act and U/s. 13(2) r/w. 13(1) (a) of PC Act. On 05.12.2005, A-2 was separately charged for the commission of offence U/s. 12 & U/s. 14 of PC Act to which she pleaded not guilty and claimed trial. A-3 was also separately charged on 05.12.2005 for the offence punishable U/s. 12 & 14 of PC Act to which he pleaded not guilty and claimed trial.
3.2 Subsequently, on the basis of application moved by CBI U/s. 216 (1) Cr.P.C., vide order dated 04.10.2013, it was ordered that Charge U/s. 13(1) (a) (d) of PC Act along with Section 120 B IPC r/w. Section 11,12 & 13(2) be given to accused persons as same could not be given inadvertently and because of the typographical error in pursuance to order on Charge dated 24.10.2005.
3.3Accordingly, all the three accused persons were charged on 05.10.2013 for the commission of offence U/s. 120 IPC r/w. Section 11, 12 & 13(1) (a) (d) punishable U/s. 13 (2) of PC Act, to which they pleaded not guilty and claimed trial.
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 5 of 71ADMISSION U/S. 294 CR.P.C. 4.0 Under Section 294 Cr.P.C., A-3 had admitted various documents i.e. D-15, D-16, D-17, D-19, D-24, D-25, D-26, D-27, D-29-A, D-35, D-38, D-46, D-47, D-48, D-50, D-52, D-56 & D-57. These documents were given Ex.RM-1 to Ex.RM-18.
PROSECUTION EVIDENCE 5.0. Prosecution has examined total 22 witnesses to prove its case.
5.1 Prosecution has examined various witnesses from Ministry of Information & Broadcasting & Delhi Doordarshan Kendra, Delhi.
1) PW-1 Shri S.K. Arora was working as Under Secretary to the Government of India, Ministry of Information & Broadcasting in March, 2003. He has proved his sanction Ex.PW-1/A to prosecute M.B. Pahari on behalf of President of India.
2) PW-5 Shri Sanjib Bhattacharya in May, 2001 was posted as Assistant in Doordarshan Bhawan, Mandi House, New Delhi. He has handed over certain documents to CBI and he proved his signatures on Seizure Memo Ex.PW-5/1, Files Ex.PW-5/2 to Ex.PW-5/8.
3) PW-6 Shri B.R. Puri was working as Chief Producer in Doordarshan Kendra, Delhi since October, 1998 and before that, he was working as Video Executive, Doordarshan Kendra, Delhi. He has proved letter dated 05.03.2001 sent to CBI as Ex.PW-7/1 and CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 6 of 71 the Circular enclosed with this letter as Ex.PW-7/2. He has identified signatures of A-1 on various Note Sheets and correspondence portions on File Ex.PW-5/6(D-8). He also identified signatures of A-3 and various correspondences as of A-3 in Files Ex.PW-5/7 & Ex.PW-5/8.
4) PW-7 Shri Akshay Kumar Mohanty remained posted with Delhi Doordarshan, Vigyan Bhawan. He identified signatures of A-1 & A-3 on various Note Sheets and correspondences in File Ex.PW-5/7 (D-9 ) & Ex.PW-5/8 (D-10).
5)PW-8 Shri P.N. Singh remained posted as Assistant Director (Programmes) between 1994 to 1999. in Delhi Doordarshan Kendra. He identified signatures of A-1 & Shri B.Z. Khan on various Note Sheets & signatures of A-3 on various correspondences contained in File Ex.PW-5/2 (D-4). He also identified signatures of A-1 & Executive Producer Mrs. Avinash Yashpal on various Notes Sheets and signatures of A-3 on various correspondences contained in File Ex.PW-5/3 (D-5), Ex.PW-5/5 (D-7) & Ex.PW-5/6 (D-8). He has further identified signatures of A-1 on various Note Sheets, signatures of Shri A.P. Sharma, Executive Producer and signatures of A-3 on various correspondences contained in File Ex.PW-5/4 (D-6).
5.2 Prosecution has also examined various witnesses from Banks, DDA & Builders to prove the payment made by A-3 against the property purchased by A-2.
1) PW-2 Shri Ravinder Kumar Bansal is employee of Canara Bank, Pitampura Branch ; PW-3 Shri Mahender Kumar Gupta is employees of Punjab National Bank, Paharganj, New Delhi ; PW-4 CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 7 of 71 Shri B.N. Bhatia, who is employee of Bank of India, Ansari Road Branch Delhi ; PW-9 Shri Sunil Arora is Team Leader in Bank of America ; PW-10 Shri Deepak Bhan, Sr. Manager, Bank of India, Ansari Road Branch ; PW-20 Ms. Smita Thakar is Assistant Manager, State Bank of India, Mumbai ; PW-21 Shri B.S. Mahale is Sr. Manager, Canara Bank, Pitampura Branch, Delhi
2) PW-12 Shri D.K. Jain is LDC in DDA ; PW-14 Shri Krishan Gopal Attri is Director of M/s. Atree Developers (P) Ltd. ; PW-16 Shri Gulraj Gopal Narang is the original Purchaser of Flat No. A-203, Trishul Apartments, Sindhi Society Chambur, Mumbai in name of his wife and same is sold by him to A-2 ; PW-17 Shri Naresh Phabiani was resident of Trishul Society, Chambur, Mumbai.
3) PW-18 Shri Rahul Mohata is Director of M/s. Ornate Apartments (India) Pvt. Ltd., whihc was engaged in business of Real Estate Development at Kolkata. He deposed to have built a House on the name of A-2 at the instance of A-1 and having taken Rs.26.50 from A-1 for the construction work.
4) Various Officials of CBI examined by Prosecution are PW-11 Shri Nirbhay Kumar, who was attached with Shri P.C. Sharma, Dy. S.P., CBI, ACB ; PW-13 Shri P.C. Sharma is the complainant in this case. He proved his Complaint Ex.PW-13/1 & FIR Ex.PW-13/2. He further proved various documents Ex.PW-13/3 to Ex.PW-13/6 ; PW-15 Shri B.K. Pradhan, Inspector, ACB, CBI, New Delhi has done part investigation in RC No. 40(A)/1999 and had collected documents of Flat No. A-203, Trishul 'A' Building, Sindhi Society, Chembur, Mumbai pertaining to this case ; PW-22 Shri Umesh Vashisht, Inspector CBI, AcBI also did part investigation of this case.
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 8 of 71STATEMENT OF ACCUSED PERSONS & DEFENCE EVIDENCE 6.0On the basis of incriminating evidence, statements of A-2 & A-3 were recorded U/s. 313 Cr.P.C. to which they denied entire evidence against them.
6.1A-2 took the defence that in the year 1991, she was in the business of sale & purchase of Sarees and holding exhibition at various places. At that time, she was residing at Tara Mansion Road, Kolkata. During the course of her business, she met A-3 through her neighborer. A-3 started buying her products and became her regular Customer. In the year 1993, as her husband i.e. A-1 was transferred to Delhi, she started her business of Consultancy and Advertising in the name of M/s. Chitra Associates at D-17, Lajpat Nagar-III, New Delhi. As A-3 was involved in Advertising, she contacted him for business. In the year 1996, she wanted to buy some property and required loan, she contacted A-3 for the same. A-3 provided her a loan of Rs.8.5 Lacs on various dates. In view of this help, she had allowed A-3 to use her properties and she also started procuring Advertising business for A-3.
6.2A-3 took the defence that in the year 1991, he had his Office in Calcutta at 28-B, Nilambar Building, Shakespeare Sarani, Calcutta, as they were appointed as Sole Advertising Agent for advertising on Calcutta Trams. Mr. Bitan Roy was General Manager in that Office and was having good relations with A-2. On the occasion of Diwali, he had requested Bitan Roy to arrange some Sarees which he CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 9 of 71 wanted to gift to his family. He(Bitan Roy) introduced him to A-2 who is doing business of sale & purchase of Sarees & ladies garments. Since A-2 was very cordial, he started meeting her frequently for purchasing gifts for his family. At that time, he was not knowing that her husband i.e A-1 was employed with Calcutta, Doordarshan. In the year 1993, he came to know that A-2 had shifted to Delhi and she told him that she had started a business in the name of Chitra Associates in Lajpat Nagar. She told him that she had good knowledge of Research and Analysis and through her contacts she can help him in his business of advertising. One day, A-2 told him that she wants some financial help for buying some properties and In lieu of the interest of this loan she promised that she will extend Consultancy Services as and when required. He agreed to the proposal. She also assured that he can use those properties as and when required in lieu of the consideration for having advanced the loan. Whenever loans were advanced, same were shown as loan in his Balance Sheets submitted to Income Tax Authorities. Since these loans were not paid on time, same were carried forward in each year's Balance Sheet.
6.3. In the year 1993, he started business of Electronic Media by producing and marketing sponsored Programmmes. The sponsored programmes were being processed as per procedure. The programmes were pertaining to current affairs & these were in the nature of sponsored programmes and not sponsored serials. As per guidelines of Doordarshan Directorate, only sponsored Serials which were in continuity like Ramayan, Mahabharat, Hum Log i.e. Fiction Serials need to be sent to Preview Committee for approval but our CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 10 of 71 Programmes were of sponsored in nature, hence the same were not required to be approved by Preview Committee. Their Programmes were duly screened and approved by concerned Officers of Doordarshan and thereafter, submitted to DDG. On many occasions, their Programmes were rejected and denied extensions. As per Doordarshan record, they were alloted time slots from 1993 whereas first loan transaction took place on 18.06.1996.
6.4.Both accused persons led defence evidence and examined 4 witnesses.
6.5.DW-1 is Shri Bitan Roy. He deposed to have introduced A-3 to A-2 in the year 1991 at Kolkata. DW-2 Shri Aushim Khetarpal is a Producer and Actor from profession. He deposed regarding the sponsored Programmes & Serials. DW-3 Shri Ved Kumar Sharma is a Producer having produced Programmes for Doordarshan and other Ministries of Government of India. He has also deposed about the sponsored serials and sponsored programmes. DW-4 Shri Rajnish Sahni worked with Media i.e. Production of Serials, production of documentaries, ad - films etc. He had worked with the firm M/s. Soft Line Media of A-3. He had visited CBI Office in 2001 and had handed over Balance Sheets of the company & Ledger Sheets of Companies and its sister concerns.
Arguments 7.0. Ld. PP for CBI has submitted that it is admitted case of A-3 that cheques and various amounts were issued by him/his Firms in favour of A-2 i.e. wife of A-1. It is stated that A-1 while working as CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 11 of 71 Director of DDK and DDG(Deputy Director General) DDK, favoured various firms of A-3 in allotment of time slots for various programs which the various firms of A-3 wanted to air on Delhi Doordarshan. It is stated that Ex.PW-7/2 (D-18) is a letter dated 21.03.1994 issued by Controller of Programs, Director General, Doordarshan, mandating that for approval of Serials upto 13 Episodes on sponsored basis, a Four Member Committee will give approval and thereafter the Program can be aired. It has been stated that the relevant sanction/extension by DDK regarding various Serials produced by A-3 proves beyond doubt that A-1 by-passed all Procedures and Rules & approved the request for airing the serials produced by firms of A-3 and has shown him favoritism. It has been submitted that 'Program' is a genus and 'Serial' is its species and distinction which A-3 wants to create regarding 'Serials' and 'Programs' is totally misconceived and does not exist.
7.1. Shri Y. Kahol, Ld. Counsel for A-3 has submitted that the letter Ex.PW-7/2 of Controller of Programs is regarding sponsored Serials whereas all the programs i.e. 'Drishti', 'Sakhi-Saheli', 'Chehal- Pehal', 'Naya Daur' etc. produced by firms of A-3 were 'Programs' and does not fall in the category of 'Serials'. It is argued that Serials are distinguishable from the Programs as if a story is in continuation, it is called 'Serials' and if every episode is independent from the other, the same is known as 'Program'.
7.2.Shri Y. Kahol, Ld. Counsel for A-3 has further submitted that from the statements of PW-6 Shri B.R. Puri, PW-7 Shri Akshay Kumar Mohanty, PW-8 Shri P.N. Singh, it stands established that Preview CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 12 of 71 Committee was only required for previewing the 'Serials' and not other "Programmes". It has been stated that all these witnesses during their depositions have specifically stated that A-1 has not shown any undue favour for consideration to anyone or to A-3. It has been argued that PW-6 who is Sr. Official in DDK has deposed that all the Programmes of Topical nature are not a Serial category programmes, hence these are not required to be previewed by the Committee. The Ld. Defence Counsel has pointed out that as per testimony of PW-7, telecasting of 'Jan Vani' & 'Parikrama' caused no pecuniary loss to DDK and A-1 used to give approval to the Note that had been put up through the routine movement of a File by the concerned Dealing Officials in the Office of DDK. The Ld. Counsel has further pointed out that PW-8, who is another Sr. Official in DDK has specifically stated that the initial proposal for the approval of the Programme in the File has been put by Shri B.Z. Khan and the same proposal has been approved by A-1 for extension of the episodes and there is absolutely no evidence if at any point of time, A-3 acted in conspiracy with A-1 and under this conspiracy, A-1 had favoured A-3 in any manner. It has been argued that even I.O. PW-22 Inspector Umesh Vashisht has admitted that Programmes connected in this case were sponsored Programmes and the letter Ex.PW-7/2 is in respect of sponsored Serials. It has been further submitted that on various occasions, A-1 rejected various proposals of A-3, which proves that both were not having any unofficial understanding. It has been further contended that A-2 & A-3 were having acquaintance since the year 1991 as A-3 wanted to purchase Ladies Garments including Sarees and A-2 wanted a Customer for her business of Ladies Garments. It is stated that explanation given by A-2 & A-3 in CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 13 of 71 their respective statements recorded U/s. 313 Cr.P.C. regarding this acquaintance and business dealing with them stands proved from the statement of DW-1 & DW-3. From the statement of DW-1, it stands proved that A-2 was running her own business of Ladies Garments and she started her research work at D-17, Lajpat Nagar and the sum of Rs.8.5 Lacs given by A-3 to A-2 was only loan and this loan transaction was as per Loan File Ex.PW-22/D-1 taken up in possession by CBI. Ld. Counsel has further pointed out that DW-3 has also deposed that A-2 was self employed and was in the business of doing research work for Advertisers and DW-3 had permitted her to use his premises at D-17, Lajpat Nagar for this purpose.
7.3.In support of the submissions, Ld. counsel for A-2 has relied upon the following judgments:-
(i) Rama Kant Sharma Vs. State [2014(2) LRC 217(Del)], &
(ii) Hardeep Singh & anr. Vs. State of Punjab [2014 (3) LRC 383P&H)].
7.4.In support of submissions, Ld. counsel for A-2 has relied upon the following judgments:-
(i) State of MP Vs. Mohan Lal Soni [2000 SCC (Crl). 110],
(ii) R. Sai Bharathi Vs. J. Jayalalitha & ors. [2004 Crl. L. J. 286], &
(iii) K. R. Purushothaman Vs. State of Kerala [2005 Crl. L.J. 4648].
Appreciation of Evidence SPONSORED PROGRAMMES & SPONSORED SERIALS CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 14 of 71 8.0.What is the definition of Sponsored Programmes & Sponsored Serials, no specific and categorical definition of these two terms have come on record. Even Prasad Bharti Act, 1990 is silent regarding these two terms. This is the one of the most contentious point in this case and strongly deliberated at length by Ld. PP for CBI and Ld. Counsels for accused persons. It is admitted by both the parties that no definition of these two terms is available either in any statute regarding the working of DDK or in the Rules that governed working of DDK. It is also admitted by both the parties that the only Circular throwing light on these two terms is Ex.PW-7/2 (D-18) issued by Controller of Programmes of Directorate General Doordarshan, Mandi House, Delhi dated 21.03.1994.
8.1. For better appreciation of facts and this Circular, same is reproduced here as follows: -
"
DIRECTORATE GENERAL, DOORDARSHAN MANDI HOUSE : NEW DELHI No. 5/1/92-P.V. Dated : 21.3.94 Subject : - Constitution of Selection Committee at Doordarshan Kendra for Sponsored Programmes.
__________ This is regarding constitution of Selection Committees at various Doordarshan Kendras for Sponsored Serials. The matter has been examined by the DirectorGeneral and it has been decided that for approval of serials of upto thirteen episodes on sponsorship basis a committee consisting of (a) Director of the Kendra (b) Chief Producer /Dy. Director of Programmes (c) Station Engineer and (d) One Officer (Local) from All India Radio or Press CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 15 of 71 Information Bureau shall function with immediate effect. Whenever DTC is not in a position the concerned Zonal DDG or a programme person to be nominated by the DG :
Doordarshan shall be the Chairman.
In case the subject is based on technical or historical ground etc., which need expert advice and consultation, the proposal may be referred to an outside expert in the discipline concerned otherwise the proposal may be referred to an outside expert i.e. the discipling concerned otherwise the proposal Car be approved and slotted by the in-house Committee itself.
Yours faithfully, (N.G. SRINIVASA) CONTROLLER OF PROGRAMMES Director, All Doordarshan Kendras.
Copy to : PS to DG/PS to ADG/PS to Chief Engineer. PS to all DDGs.
All Cps in the Directorate.
All DCPs / ACPs / Producers/Programme Executives in the Directorate.
for Director General"
8.2.Now, let us see what Prosecution witnesses and I.O. have to say of 'Sponsored Serials' & 'Sponsored Programmes'.
8.3.PW-6 Shri B.R. Puri was working as Chief Producer in DDK since October, 1998. Before that, he was working as Video Executive with DDK, Delhi. He has deposed that only Serials like Ramayan, Mahabharata i.e. episodes connected to each other, used to be sent CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 16 of 71 to Preview Committee for approval. Sponsored Serials before their telecast used to be sent to Preview Committee for checking their quality. In case the quality of the sponsored serials was not found upto mark, both quality-wise & content-wise, then the same used to be rejected, but in case the same was found suitable then the same used to be passed for telecast. Serials are in form of story which are telecast in the continuity or in serial order whereas, Sponsored Programmes are made and produced by outside Producers themselves, who ask for time slots in the Channel for telecast and pays Telecaste fee and in turn, the said Producer get time for telecast of advertisement, from which he earns revenue. There are Sponsored Programms and Sponsored Serials also.
8.4.This witness was cross-examined by Ld. PP for CBI. During his cross-examination, he has stated that that he cannot say whether File Ex.PW-5/6 (D-8) pertaining to 'Lok Vaani' should have been sent to Preview Committee or not. Regarding File 'Sakhi Saheli' Ex.PW-5/4 (D-6), he has stated that it appears that the Pilot Episode had been previewed by Shri A.P. Sharma, Executive Producer. He denied to have mentioned in his statement to CBI that this programme was supposed to be previewed by the Preview Committee. Witness was confronted with his Statement Ex.PW-6/3 portion 'C' to C' where it is so recorded. He has further stated that he cannot say if Pilot Episode of Programme 'Sakhi Saheli was required to be previewed by the Preview Committee. Regarding File of 'Chehal Pehal' Ex.PW-5/5 (D-7), he has stated that he had not mentioned in his statement to CBI that this Programme was supposed to be previewed before Preview Committee but no such CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 17 of 71 Committee was formed. This witness was confronted with his statement Ex.PW-6/3 portion 'E' to 'E' where it is so recorded. He has further denied about mentioning in his statement to CBI that Programmes of sponsored category are required to be previewed by Preview Committee but one programme 'Parikrama' has been approved by the Committee and in all the cases guidelines dated 21.03.1994 issued by Directorate General, Doordarshan had not been considered by A-1. Again witness was confronted with his statement Ex.PW-6/3, where it is so recorded.
8.5.During his cross-examination by accused persons, this witness had admitted that 'Sponsored Programmes' & 'Sponsored Serials' are different. As per him, the guidelines dated 21.03.1994 (Ex.PW-7/2) were in respect of Sponsored serial and the same were not in respect of sponsored programmes. He has further admitted that Preview Committee was required only for previewing Serials and not other Programmes. He further stated that while going through the Files in Office of CBI, it did not appear if A-1 had shown any undue favour for consideration to anyone. Witness has further deposed that all the Programmes of Topical nature are not a serial category programme, hence these are not required to be previewed by Preview Committee. He admitted that non-fiction programmes are not termed as Serials and same were passed by In-house Committee after previewing the Pilot episode. In reply to the specific question, this witness admitted that Interviews and Programmes on current affairs, documentaries or features even if in a series cannot be termed as 'Serials'.CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 18 of 71
8.6.PW-7 Shri Akshay Kumar Mohanty joined Office of DG Doordarshan in January, 1990 and thereafter, he was shifted to DDK, Delhi. He deposed that Preview Committee had been constituted and its job was to preview and examine the merit of the Programme. During his cross-examination by accused persons, he has stated that Sponsored Programmes are the one in which the Producer submits concepts or the proposals to be produced by him, for approval of the Office. In reply to specific question that whether Sponsored Serial is different from Sponsored Programme, he stated that they are different. He further deposed that Programme 'Jan Vaani' was programme based on current affairs and was a sponsored programme under the category ' Sponsored Programmes other than Serials'. Similarly, Programme ' Lok Vaani' & 'Sakhi Saheli' were Sponsored Programmes under the category 'Sponsored Programmes other than Serials'. There are two types of episodes viz. Serials comprising of fictions & Non-Serials like documentaries or current affairs, which are more than one episode. There used to be 13 episodes in Serials and same used to be referred to Committee for purposes of recommendation/rejection. During his posting, for some period, he had been dealing with Sponsored Serials. In non- serial Programmes, generally there would be different stories in each episode and that would be a series and not a Serial Programme Mostly, the Files pertaining to A-3 relate to series and not Serial programmes. There used to be two Committees namely Selection Committee & Preview Committee. In respect of Sponsored category Programmes, Selection Committee used to be a high power Committee.CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 19 of 71
8.7.The statement of I.O. PW-22 Inspector Umesh Vashisht is also very important on this aspect. He has deposed that it did transpire during his investigation that A-3 used to produce Programmes which used to be approved by A-1 without being put up before the Preview Committee. During his cross-examination by accused persons, he admitted that Programmes connected to this case were Sponsored Programmes. He further admitted that all Programmes were Sponsored Programmes and none was Sponsored Serial.
8.8.As discussed above, one of the main allegation against A-1 is that in conspiracy with other accused persons i.e. A-2 & A-3, he approved the various Programmes/ Proposals submitted by different firms of A-3 without the recommendation of Preview Committee. The bare reading of Circular Ex.PW-7/2 reveals that it is about Sponsored Serials. There is no mention of Sponsored Programmes anywhere in this Circular. The most pertinent point to be considered is if actually there existed any classification like 'Sponsored Serials' and 'Sponsored Programmes' in the programmes telecasted from DDK, Delhi. It is admitted case of the Prosecution that no definition of this two terms is available either in any statue regarding working of DDK or in the Rules that governed working of DDK. Accordingly, Court is only left with the option to interpret the Circular Ex.PW-7/2, in the light of the statement of PW-6, PW-7 & I.O. PW-22. As discussed above, PW-6 & PW-7 have specifically stated that there existed distinction between two terms i.e. 'Sponsored Serials' & 'Sponsored Programmes' and the Programmes of topical nature and non-fiction programmes fall in the category of 'Sponsored Programmes'. Even I.O. during his cross-examination has admitted that all the CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 20 of 71 Programmes produced by A-3 and telecasted at DDK were 'Sponsored Programmes' and none was a 'Sponsored Serial'. He has further admitted that Circular Ex.PW-7/2 is in respect of 'Sponsored Serials'.
8.9. Circular Ex.PW-7/2 talks about constitution of Selection Committee (also mentioned as Preview Committee in the Charge Sheet) at various Doordarshan Kendra for 'Sponsored Serials'. The case of the CBI is that various Firms of A-3 had produced 7 Programmes namely 'Drishti' Ex.PW-5/2 (D-4), 'Naya Daur' Ex.PW-5/3 (D-5), 'Sakhi Saheli' Ex.PW-5/4 (D-6), 'Chehal Pehal' Ex.PW-5/5 (D-7), 'Lok Vaani' Ex.PW-5/6 D-8, 'Parikrama Ex.PW-5/7 (D-9), 'Jan Vaani' Ex.PW-5/8 (D-9). Same were telecasted from DDK, Delhi after being approved by A-1. Now, the relevant point to be considered is if these 7 Programmes produced by A-3 fall under category of Sponsored Serials or Sponsored Programmes and were required to be previewed before being telecast. The detailed scrutiny of the files pertaining to these 7 Programmes would reveal the nature of these Programmes and the manner in which these was approved by A-1, being Incharge of DDK, Delhi.
Dirshti - Peru Ka Naya Daur Ex.PW-5/2 (D-4) 9.0. Note Ex.PW-8/1 is in the hand of PW-8 Shri P.N. Singh, Assistant Director, Programmes mentioning that 'Drishti' Programme of M/s. Rashtriya Advertising Agency was earlier approved for 4 Episodes w.e.f. 08.12.1996 under sponsored category and the party wants extension of 13 Episodes w.e.f. 05.01.1996.
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 21 of 719.1. Ex.PW-8/2 is the Note written by A-1 giving extension of 4 Episodes by the Telecast dates as 05.01.1996, 12.01.1996, 19.01.1996 & 26.01.1996.
9.2. Ex.PW-8/4 is the Note given by PW-8 mentioning about the letter of M/s. Rashtriya Advertising Agency dated 20.01.1996 for extension of on going Serials 'Drishit' for another 8 Episodes. 9.3 Ex.PW-8/5 is the Note of Shri B.Z. Khan, Assistant Station Director mentioning that total 8 Episodes has been assigned to M/s. Rashtriya Advertising Agency and the request is to further extend 8 Episodes.
9.4. Ex.PW-8/6 is the approval given by A-1 for extension of 5 Episodes.
9.5. Ex.PW-8/8 is in the hand of Shri B.Z. Khan mentioning that further extension of Serial 'Drishti' has been sought. 9.6. Ex.PW-8/9 is approval given by A-1 for 4 Episodes. 9.7. Ex.PW-8/12 is the note written by Shri B.Z. Khan mentioning the Note of DTC on the letter of M/s. Rashtriya Advertising Agency allowing 4 episodes to cover the following 4 Topics during Elections i.e. CEC India, EC India, EC India & Home Secretary, India 9.8. Ex.PW-8/14 is the Note in hand of Shri B.Z. Khan mentioning that as per instructions of DTC further extension of 2 Episodes has been granted in view of Lok Sabha Elections.
9.9 Vide Note Ex.PW-8/15, A-1 has approved/telecast of these two Episodes.
9.10.From the various Notes discussed above and the correspondences between M/s. Rashtriya Advertising Agency and DDK, it is clear that this was a 'Programme of topical nature' / 'Sponsored Programme' and was not a 'Sponsored Serial'.
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 22 of 71Naya Daur (D-5)[Exh PW 5/3] 10.0.This File contains only two documents. Ex.PW-8/34 is a letter written by A-3 being President of M/s. Rashtriya Vision to Director, DDK mentioning that 13 episodes of this Programme are alloted to him, this Programme has gained popularity and viewership. He has requested for extension of the same for further 13 episodes and shifting the time slot to 7: 15 P.M. 10.1.Ex.PW-8/35 is the letter written by Mrs. Avinash Yashpal to M/s. Rashtirya Vision dated 27.11.1996 informing that 13 episodes have been approved and they have to take FCT (Free Crucial Time) of 30 Seconds more, directing M/s. Rashtriya Vision to deposit additional FTC fee of 30 Seconds and in case they are not interested to deposit fee to inform the Department atleast three days before telecast so that some other Programme be arranged for telecast.
Sakhi- Saheli (D-6) [ Ex.PW-5/4] 11.0. Ex.PW-8/37 is the approval given by A-1 for telecast of 13 episodes on Saturdays from 13.04.1996 after its Pilot was previewed same day on 11.04.1996.
11.1 Ex.PW-8/38 is a Note of A-1 mentioning issuance of letter of approval and asking to change the Title of the Programme. Programme to be telecasted from mid July, 1996 after the completion of on-going Serial.
11.2 Ex.PW-8/39 is the Note given by Smt. Avinash Yashpal CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 23 of 71 mentioning that Programme can be scheduled on Sunday at 2.00 P.M. after on-going Serial finishes.
11.3 Ex.PW-8/42 is the note of Smt. Avinash Yashpal dated 17.09.1996 mentioning that party has applied for further extension of 13 episodes and the Programme is being telecast at 12: 30 P.M. on Saturdays and scheduled to finish by 05.10.1996. 11.4 Ex.PW-8/43 is the Note dated 26.09.1996 of A-1 mentioning to ask the party to submit No Due Certificate from DCS in order to consider extension proposal.
11.5 Ex.PW-8/44 is a note of Smt. Avinash Yashpal mentioning that party has submitted that all bills are paid and recommending the extension letter for another 13 episodes. Vide Note Ex.PW-8/45 dated 09.10.1996, A-1 has given approval for extension of 13 episodes with the rider that no further extension, line up new programme.
11.6 Ex.PW-8/46 is a note of Smt. Avinash Yashpal mentioning that as discussed with DTC, the programme has been given extension for another 13 episodes w.e.f. 11.01.1997 (so far 26 episodes have been telecasted). The same is approved by A-1 vide his signature at point 'A' dated 18.01.1997.
11.7 Ex.PW-8/48 is the note of Smt. Avinash Yashpal dated 30.06.1997 mentioning that party has applied for extension of another 13 episodes so far 52 episodes have been telecasted. 11.8 Ex.PW-8/49 is the note of A-1 mentioning that already completed 52 episodes. No extension.
Chehal - Pehal (D-7) (Ex.PW-5/5) CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 24 of 71 12.0. Ex.PW-5/5 (2) is the approval given by A-1 dated 02.12.1996 for 13 episodes w.e.f. 05.12.1996 at 7: 15 P.M. 12.1. Ex.PW-5/5 (3) is the note given by Smt. Avinash Yashpal mentioning that party has applied for extension of another 13 episodes, the 13 episodes are tentatively due to finish on 06.03.1997. A-1 has approved extension of 13 episodes on 04.03.1997.
12.2. Ex.PW-5/5 (4) is a Note dated 20.03.1997 mentioning that the programme telecasted on 20.03.1997 has a story on reaction of followers of Jain Religion. The Story critcizes the Government of Rajasthan and party be asked to remove the story and replace it with another story. The story of Holi Colours has brand name 'Hari Darshan'. Party be asked to delete it.
12.3. Ex.PW-5/5 (5) is the note of A-1 mentioning that they have to substitute or the Producer, can delete the story criticizing Government of Rajasthan and story of Holi with publicity of 'Hari Darshan.
12.4. Ex.PW-5/5 (7) is the Note of Smt. Avinash Yashpal mentioning that party has applied for extension of another 13 episodes and so far 26 episodes have been telecasted. Another programme 'Hello Doctor' is scheduled, however if fails to come then extension can be considered. The same was approved by A-1 vide his Note dated 03.06.1997. The Programme 'Hello Doctor' has confirmed to come on air. A-1 vide his Note dated 06.06.1997 has mentioned if Hello Doctor comes on air w.e.f. 19.06.1997, Programme 'Chehal Pehal' be shifted to Wednesday / 7.15 P.m., on completion of on going programme.
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 25 of 71Lokvani (D-8) [ Ex.PW-5/6] 13.0. Ex.PW-8/1A is a note dated 16.01.1997 of Mrs. Avinash Yashpal mentioning that party has applied for 'Lokvani' Programme which is being scheduled at 7:15 P.M. from 26th January. Pilot is being asked DTC for information.
13.1. Ex.PW-8/1B is a Note signed by A-1 same day mentioning 'Pilot' to be approved for 13 episodes (D+LPT) at 7: 15 P.M. on Sundays. 'Lokvani' is started as per direction of the DG:DD vide No. 14/1/97-P1 dated 09.01.1997. The Producer is to take approval of all participants who will feature in each episode of the Programme. This is mandatory. Programme will start w.e.f. 26.01.1997.
13.2. Ex.PW-8/1D is a Note of A-1 mentioning that it may not be possible to allow extension of this Programme. The Producer had violated Code of Broadcast on many occasions. The Producer did not comply with our suggestions vide letter dated 01.04.1997. No extension. Inform accordingly.
13.3. Ex.PW-8/1E Part 'B' is a note written by Mrs. Avinash Yashpal mentioning that as discussed with DTC, Lokvani has been given extension for another 13 episodes in the same chunk. Part 'D' of Note dated 23.10.1997 of Smt. Avinash Yashpal mentions that party has applied for extension of another 13 episodes and their 39th Program is due to finish on 05.11.1997. No other Programme is scheduled after that Programme, in case DTC decides to give them extension then we must insist on his schedule and name of the participants. Vide Note dated 25.4.1997 of A-1 allowed extension of 13 episodes.
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 26 of 7113.4. Ex.PW-8/1G is note given by Mrs. Avinash Yashpal mentioning that Programme will be completing 39 episodes on 05.11.1997 and extension of other 13 episodes will make it total 52 episodes. It was seen and approved by A-1 on 04.11.1997. 13.5. Ex.PW-8/1H is a letter of M/s. Soft Line Media Ltd. mentioning that they want to produce a new programme titled 'Lokvani' in which some prominent citizens will discuss the pros and cons of various public interest issues with the concerned persons. He can cover LG, CM, Ministers and Officers of Delhi Police, DDA, NDMC, MCD, DTC, PWD, DESU etc. in this programme. 13.6. Ex.PW-8/1K is a letter written by DDK, New Delhi to party asking him to deposit the telecast fee (FCT) etc. Parikrama (D-9) [Ex.PW-5/7] 14.0. Ex.PW-7/4A is a note of A-1 directing Shri A.K. Mohanty (PW-7) to preview cassette immediately and submit the Report. 14.1. Ex.PW-7/4B is a Note written by PW-7 Shri A.K. Mohanty mentioning that he has seen the cassette. A very crude way of presenting the excerpt which amounted to be advertising of the Builder/Contractor. The Producer need to be cautioned in this regard about the guiding factors. The Previewing Officers have been briefed accordingly for future guidance.
14.2. Ex.PW-7/4C is a Note written by A-1 directing PW-7 Shri Akshay Mohanty to do the needful and further directing to ask the Producer to get the story line approved.
14.3. Ex.PW-7/4E is a Note of A-1 seeking comments of the other Officials and asking that should the Programme to be given CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 27 of 71 extension. In case extension is not given, what will be the alternative. Is there any other sponsored programme awaiting for slot on Sunday/1.30 P.M. 14.4. Ex.PW-7/4G is a note dated 17.03 of A-1 seeking comments of DDP (RKS) on the points that if there is any programme under sponsored category, already approved, wishes to come at 1.30 P.M. not on Sunday. If not , they may consider this extension to M/s. Softline Media Pvt. Ltd. vide their declaration submitted on 11.03.1998.
14.5. Vide Ex.PW-7/4H, extension of six episodes was allowed. Vide Note Ex.PW-7/4K dated 04.05.1998, A-1 has ordered that Programme 'Waqt Hamara Hai' will come on air w.e.f. 10.05.1998 and cannot fix further extension to 'Parikrama' on the same chunk. 14.6. Ex.PW-7/4L is the note given by PW-7 Shri A.K. Mohanty dated 05.04.1998 mentioning that Producer of this Programme has given to come up in a 15 minutes slot on Thursday at 7: 15 P.M. Because of the uncertainity of the previous programme 'Aaj Kal' which presumably has developed internal dispute, may consider this case in the same time slot favourably. This proposal was approved by A-1 vide his Note Ex.PW-7/4 M dated 05.05.1998 allowing telecast of 13 episodes.
14.7. Ex.PW-7/4N is a note given by PW-7 Shri A.K. Mohanty mentioning that party has sought time extension of 15 minutes slot. Same is not possible. Vide Note Ex.PW-7/4O dated 11/06/98, A-1 has approved it.
'Janvani' (D-10) [ Ex.PW-5/8] CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 28 of 71 15.0. Ex. PW-7/A2 is note dated 28.02.2011 of A-1 in response to Note of PW-7 Shri A.K. Mohanty at point 'A-1' mentioning that he will ask the party to put up detailed scripts- episode-wise. Allowed for four episodes. If the same is suitable, we may ask him to come on air w.e.f. 11.03.1998. Ask Pilot, detailed scripts of 4 episodes & concept for remaining episodes. 15.1.Ex.PW-7/A4 is a note given by PW-7 Shri A.K. Mohanty mentioning as desired the programme has been previewed. Programme is more or less a repetition of 'Parikrama' programme, made out of assembling of 2 days coverage in 3 segments i.e. (1) Ram Navami (2) Mahavir Jayanti. The party should improve the format to suit to the title. He has asked the Party to prepare the Pilot in a short time. Approval to come from 15.04.1996 subject to condition that the programme is improved upon. Same was approved on 07.04.1998 by A-1 vide Note Ex.PW-7/A-5.
15.2.Ex.PW-7/A-8 is the note of A-1 dated 23.07.1998 mentioning that Producers are not adhering to it. When the chunk will be vacant, we will be putting In-House Programme/acquired Programme.
16.0.In above Paras, relevant Notings made by A-1 in the capacity as Director, DDK, notes made by PW-7 Shri A.K. Mohanty and Lt. Mrs. Avinash Yashpal, both working under A-1, are discussed. Close scrutiny of Files Ex.PW-5/2 to Ex.PW-5/8 (D-4 to D-10) reveals that A-1 was the final authority to sanction and approve the time slot to telecast the programme and number of episodes to be telecast. The nature of the Notes given by PW-7 Shri A.K. Mohanty, Lt. Mrs. Avinash Yashpal and Shri B.Z. Khan who were working in CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 29 of 71 the same Office as sub-ordinates to A-1 under different capacities, is recommendatory or providing information as per the record. From these Files, no inference can be drawn that A-1 approved the proposals applied by A-3 through his different Firms, in a reckless manner or in a manner where favortism is apparent. There are instances where A-1 has not consented to the proposal of A-3 put forward before him or has put some fundamental queries regarding the programme to be telecast. Even it is apparent that commercial aspect of telecast of various programmes regarding the desired fee, which as per rules A-3 was supposed to deposit, is not found to be compromised in any manner. Moreover, this is not the case of the Prosecution, if A-1 while allegedly working in conspiracy with A-3 had bestowed any financial benefit to A-3 while approving his proposals put forth before him. It is also not the case of the Prosecution if A-1 has approved these various proposals submitted by A-3 at the cost of the other Competitors / Producers and by leaning in favour to A-3 while granting approval to his proposals.
16.1.Regarding the case of the Prosecution, as per Circular Ex.PW-7/2, various Programmes of A-3 were 'Sponsored Serials' and same were sanctioned by A-3 without recommendation of Preview Committee. Statements of PW-6, PW-7 & even I.O. PW-22, already discussed, are categorically pointing that the various programmes of A-3 were 'Sponsored Programmes'. The scrutiny of Files Ex.PW-5/2 to Ex.PW-5/8 brings to light that there is mention of Previewing Officer at some places in one & two Files but in no way, this previewing of Pilot episode connotes the Four Member Selection Committee as constituted for previewing, for approval of Serial upto CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 30 of 71 13 episodes, as laid down vide Circular of Director General Doordarshan, which is Ex.PW-7/2.
16.2. It is also apparent from the Files Ex.PW-5/2 to Ex.PW-5/8 that word 'Serial' has been rampantly used in the correspondences between A-3 and DDK and in the various notes authored by Officials of DDK including A-1, but the pertinent question to be seen is if the various programmes which A-3 has telecasted could be categorized as 'Sponsored Serials' or not. In addition to that, the notes and correspondences rotate around the proposals for sanction of 13 episodes. The Circular Ex.PW-7/2 also talks about approval of Serials upto 13 episodes on sponsorship basis.
16.3.The question to be answered is whether just mentioning of word 'Serial' in these Files, conclude that these Programmes were 'Sponsored Serials' and were getting covered under Circular Ex.PW-7/2 or this word was casually used. The question which further needs to be ponder is does sanction of 13 episodes imply that these programmes of A-3 were 'Sponsored Serials' falling under the domain of Circular Ex.PW-7/2.
16.4.The answer to these questions is loud and clear from the statements of PW-6, PW-7 and I.O. PW-22. PW-7 has specifically stated that Programmes 'Lokvani' & 'Sakhi Saheli', the files of which he has dealt with were "Sponsored Programmes" other than Serials. I.O. PW-22 has also specifically admitted that it has come to light during investigation that all these Programmes were 'Sponsored Programmes' and none was 'Sponsored Serials'. Moreover, scrutiny CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 31 of 71 of these Files reveal that these were programmes of topical nature, covering current affairs, social issues, comprising interviews of various Heads of the Government Departments like Police Commissioner, Chief Election Commissioner, Commissioner, MCD, Vice Chairman, DDA, etc. 16.5.To prove his point, A-3 has also examined two witnesses in defence. DW-2 Shri Aushim Khetrapal has deposed that he is a Producer and Actor by Profession. There were two types of Programmes on Doordarshan i.e. current affairs programme and sponsored serials. For telecast of sponsored programme, slot used to be allocated to the Producer by Doordarshan, wherein Producer used to get 240 - 300 seconds of free commercial time. The Producer was required to pay telecast fee to Doordarshan and he could recover his money/expenses from the revenue generated from advertisement during the free commercial time. He had never faced any problem in getting time slots for his programmes from Doordarshan. A topical programme has to be prepared within 3 -4 days of allotment of the time slot. Commissioned programmes went through a Preview Committee. The programme had to be made in a 30 minutes capsule and submitted for perusal of the Preview Committee. It was Preview Committee which on perusal of the programme could sanction for its telecast and the royalty to be paid by Doordarshan after programme is telecasted. There was no such system of Preview Committee in respect of Sponsored Programme. The only person who was to watch the programme was the Programme Executive before the telecast was made. During cross- examination by Ld. SPP, he deposed that he had been producing CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 32 of 71 Programmes which were telecasted on Doordarshan during 1998 to 2000. Selection Committee and Preview Committee are different. Selection Committee selects Serials forwarded to it by various Producers for being telecast at Doordarshan. After the Selection Committee approves the serial, Producer is called upon to produce the same. The Serial is then viewed by the Preview Committee and is telecast only after it is cleared by the Preview Committee.
16.6.DW-3 Shri Ved Prakash Sharma is another Producer examined by A-3. He has distinguished among royalty based programme, commissioned programme, sponsored serial and sponsored programme. He has deposed that sponsored serial is one in which there is continuity in story line and it can consist of 13/26/52 episodes. Production cost is borne by the Producer and fixed telecast fee is paid by Producer to Doordarshan. In return, Producer is provided with free commercial time which can be used by Producer to advertisers. As per him, sponsored programme is one where there is no continuity in the story line and each episode is individual. Fixed telecast fee in this regard is to be paid to Doordarshan by the Producer who in return is provided with free commercial time.
16.8.In view of the aforesaid reasons, it is held that prosecution has failed to prove that all the 7 programmes produced by A-3 through his various firms were 'sponsored serials', getting covered under the circular Ex. PW 7/2, issued by Controller of Programmes, Director General, Doordarshan, Delhi. Accordingly, it stands proved that since programmes produced by A-3 were not covered under circular Ex. PW 7/2, the same were not required to be put before the preview CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 33 of 71 committee before the same could have been approved by A-1.
Payments by A-3 on behalf of A-2 17.0.One of the allegation against the accused persons is that as quid Pro-quo, A-3 through his various Firms, paid Rs.8.50 Lacs by Demand Drafts/Pay Orders/Cheques in favour of various Developers towards the payments of Flats booked on the name of A-2 at Delhi, Calcutta & Mumbai during the years 1996 to 1999. The payment of this money by A-3 and receipt of this amount by A-2 stands admitted by both A-2 & A-3. Ld. Counsel for both the parties have also conceded to these money transactions but they have contended that the payments were not made by A-3 as quid Pro-quo to A-2 as husband (i.e. A-1) was working as Dy. Director General of Delhi Doordarshan Kendra. It has been submitted that A-2 & A-3 were known to each other since 1991 when A-2 used to reside at Kolkata as they have met through common friend DW-1 Shri Bitan Roy. It is argued that because of these old relations, when A-2 shifted to Delhi, on her request and requirement, A-3 has advanced various loans to her, reflecting these loans in his Income Tax Returns filed time to time. The Ld. Counsel has vehemently urged that the File Mark P-13/XY was seized by I.O. PW-22 at the time of the search of the premises of A-3 on 05.12.2000 but same was put in unrelied upon documents and was deliberately concealed and not considered for falsely prosecuting A-3.
17.1.From statements of PW2, PW-3, PW-4, PW-9,PW10,PW12,PW14,PW16,PW18 & PW-21, it stands proved that A-3 through his various Firms i.e. M/s. Rashtriya Advertising Agency, M/s. Victoria Publicity Services, M/s. Soft Line Media Ltd.
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 34 of 71and from his personal account had paid between 1996 to 1999 different amounts totalling Rs.8.5 Lacs to Shri Gulraj Gopal Narang (PW-16) for properties at Mumbai, to M/s. Atree Developer Pvt. Ltd., Delhi Development Authority (DDA) & M/s. Ornate Apartments India Pvt. Ltd., Kolkata, on account of various properties purchased by A-2 & A-1 on the name of A-2.
17.2. DW-1 Shri Bitan Roy has deposed that A-3 was known to him since 1991 as he was working under him (A-3) as Business Executive and A-2 is whom he had met in Exhibition. A-2 was in business of ladies garments including Sarees. He had introduced A-3 to A-2. Infact, they used to purchase gift Items for gifting to their Clients during Diwali and he has introduced A-3 to A-2 in this context. A-2 remained in Kolkata till 1993 and around that time, she had given him her telephone call informing that she was shifting to Delhi. A-2 also gave her Delhi Telephone number and he also informed A-3 about it. After A-2 shifted to Delhi, he once visited her Office premises in Lajpat Nagar. During his cross-examination by Ld. SPP, this witness produced article published in 'Sunday Telegraph' for 18th to 24th May, 1997 wherein he had been mentioned as being Regional Director of M/s. Softline, the Agency advertising on Trams. He has stated that he has no idea regarding retial outlets of A-2 but she used to sell her products in Exhibitions also. He too had purchased Sarres from A-2 in Exhibition. This witness was cross-examined by A-2. He admitted that A-2 was also participating in Exhibitions in private premises. In photographs Mark D-1/2 to 5, he identified A-2.
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 35 of 7117.3. DW-3 has deposed that he had been dealing with Doordarshan since 1990. He had gone to meet A-1 in Doordarshan and met A-2 there as she was introduced to him by A-1. A-2 was using his Office address at D-17, Lajpat Nagar and she was never in his employment. A-2 used to pay rent to him for using the said premises. He had hired her services for some research work. During cross-examination by ld. PP, he has stated that he had taken D-17, Lajpat Nagar on rent from Shri Mahender Kalia. He had not sublet it to A-2 but had only permitted her to use his address. When he had met A-2 for the first time, she had informed him that she used to do research work for Advertisers and also asked him to give some research work to her. It was on this account, he had marked some research work to her. He had been informed by A-1 that he had filled up some Form of DDA for some house in Dwarka. Once A-2 met him in Grindlay Bank, Karol Bagh and she handed over to him a DDA Form alongwith Bank Draft for depositing the same in DDA Office. During his cross-examination DW-3 has stated that he had taken D-17, Lajpat Nagar on rent from Sh. Mahender Kalia. He had not sub-let it to A-2 but only permitted her to use his address.
17.4. DW-4 Rajesh Sahni had worked with M/s Softline Media Ltd. of A-3 from 1996 to 2002. He deposed that in 2001, he had visited CBI office to handover balance sheet of the company and the ledger sheet of the company including M/s Softline Media Ltd. and its sister concerns. On the notice issued by this court, Holding IO Inspector Ankit Chopra produced file mentioning Softline Media Ltd. account and bank statement containing balance sheets pertaining to the years 1997-1998, 1998-1999 and 1999-2000. It also contained CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 36 of 71 balance sheet dated 31.3.1999 of A-3. It being computer generated and not carrying any mandatory certificate required under Indian Evidence Act, it was marked as DW 4/A. It also contained ledger account of M/s Softline Media Ltd. for the period 1999-2000 as mark DW 4/B and ledger account of M/s Chitra Associates with M/s Softline Advertisement Pvt. Ltd. as mark DW 4/C and with of M/s Victoria Publicity Pvt. Ltd. as mark DW 4/D. As per this witness, he had handed over balance sheet of all the 4 companies to CBI.
17.5.During his cross-examination, Ld. PP for CBI has tried to assail the credibility of this witness suggesting that he had not gone to CBI office to handover documents as deposed by him. But since these documents were handed over and were produced in the court from the custody of CBI, from this it is presumed that these might have been seized by CBI either during search or subsequent to the search. As per DW-4 documents mark DW 4/C and mark DW 4/D are ledger account of M/s Chitra associates, the firm of A-2 with M/s Softline Media Ltd. and M/s Victoria Publicity Pvt. Ltd. firms of A-3. From this it stands established that there were outstanding liabilities to the tune of Rs. 2 lacs, as per the ledger accounts against M/s Chitra Associates, maintained by M/s Softline Media Ltd. and Rs. 1 lac maintained by M/s Victoria Publicity Pvt. Ltd.
17.6.To establish that money paid by A-3 on behalf of A-2 was in fact a loan transaction by A-3, Ld. counsel for A-3 has contended that loan file mark P13/XY is most material document containing all the correspondence between A-3 and A-2 regarding request made by A-2 to give her loan and cheques/drafts/money given by A-3 on the CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 37 of 71 name of different builders, on behalf of A-2.
17.7.PW-22 IO of this case has admitted during his cross- examination that he has seen the file mark P-13/XY which contains search-cum-seizure memo Ex. PW 23/3. As per Ex. PW 23/3, CBI during search of the premises of A-3 on 5.12.2000 had seized one pink colour file on the name of Chitra Associates having correspondence between Smt. Chitra Pahari (A-2) and A-3 having pages 1 to 20. First and second page contained in this file are two request letters dated 13.1.1997 and 23.2.1997 respectively written by A-2 on behalf of M/s Chitra Associates to A-3 requesting him to arrange loan of Rs. 1 lac by way of DD on the name of M/s Atree Developers Pvt. Ltd. Page 3 is letter dated 4.3.1997 written by A-3 vide which he had sent three cheques worth Rs. 1 lac in favour of M/s Atree Developers Pvt. Ltd. to her. Page 4 is letter dated 15.6.1997 written by A-2 to A-3 again requesting to arrange Rs. 1 lac as a loan by issuing DD in favour of M/s Atree Developers Pvt. Ltd. Page 5 is the letter dated 2.8.1997 written by A-3 to A-2 vide which he had sent 3 cheques worth Rs. 1 lac drawn in favour of M/s Atree Developers Pvt. Ltd. Page 6 is another request letter dated 16.10.1997 by A-2 to A-3 requesting him to arrange loan of Rs. 1,50,000/- by way of issuing DD payable to DDA Housing. Page 7 and 8 are letters written by A-3 to A-2 dated 24.10.1997 and 4.12.1997 sending her pay order of Rs. 1 lac and Rs. 50,000/- respectively in favour of DDA Housing. Page 9 is another letter written by A-2 to A-3 dated 22.3.1999 requesting him to arrange loan of Rs. 5 lacs by way of issuing DD on the name of M/s Ornate Apartment (India) Pvt. Ltd. Page 10 is letter dated 26.3.1999 written CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 38 of 71 by A-3 to A-2 mentioning that already there is huge outstanding loan against her and which has not been repaid so far. He has further mentioned that their's is a family concern and they need funds for their business purpose and it will be difficult to arrange further payment of Rs. 5 lacs without getting any security against it. Page 11 is letter dated 2.4.1999, written by A-2 again requesting to arrange loan of Rs. 5 lacs at the earliest as she is in dire need of this money. A-2 has accused that she will keep the lease deed documents of the property with A-3 after execution. Thereafter as per Page 12 which is letter dated 13.4.1999 of A-3, he had sent a pay order of Rs. 3 lacs in favour of M/s Ornate Apartment (India) Pvt. Ltd. to A-2.
17.8.Going further in this file, Page 13 is the letter dated 12.6.1999 written by A-3 to A-2 mentioning about pending loan and her assurance to hand over property document or refund loan amount. Page 14 is a reply dated 20.6.1999 written by A-2 to A-3 mentioning that still construction is going on in the property and lease agreement is yet to be done. She has assured that documents will be handed over to him towards security of outstanding loan by the end of August, 1999. Page 15 is letter dated 2.6.1999 written by A-2 to A-3 seeking a loan of Rs. 1 lac by arranging a demand draft in favour of Gul Narang for arranging a residential accommodation in Bombay. Page 16 is the statement of outstanding amount against M/s Chitra Associates prepared by A-2. Page 17 is the letter dated 25.11.1999 written by A-3 to A-2 requesting her to repay the loan/outstanding dues. This letter was sent by registered post, the postal receipt of which is affixed on this letter itself. Ex. PW 22/D-1 is the envelope CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 39 of 71 vide which this letter was sent to A-2.
17.9.Analysis of these documents establish beyond doubt that these documents were executed prior to registration of this case and search of the premises of A-3 which happened on 5.12.2000.
17.10. The extending of various loan amounts by A-3 to A-2 on different dates, showing the same in his books of account stands duly established from these documents. Both A-2 and A-3 along with A-1 (deceased) are facing charges under Section 120-B IPC read with Section 11, 12 and 13(1)(a)&(d) of the P.C. Act. The Ld. PP has contended that all the three accused were in conspiracy, as a result of that A-3 had given loan of Rs.8,50,000/- to A-2 and what is the present status of this loan, A-3 has deliberately concealed which proves that it was a bribe as a motive or reward for the favour done by A-1 in approving the various programmes of A-2. On the other hand contention raised by ld. counsels for A-2 and A-3 are that A-2 was living separately from A-1 during the relevant period, which negates the theory of conspiracy propounded by prosecution. It has been stated that various prosecution witnesses especially PW-6, PW-7 and PW-8 have admitted that A-1 had never shown any favour to A-3 while approving their proposals.
Conspiracy 17.11. The criminal conspiracy as defined under Section 120-B IPC is always hatched in privacy. The gist of what constitute this offence was summed up pithily by the Supreme Court in Runu Ghosh Vs. P. Rama Rao [2011 Legal Eagle(Del) 1757] in para 132 & 133 as CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 40 of 71 follows:-
"132. As regards criminal conspiracy, that is one, under Section 120-B, IPC. The gist of what constitutes the offence was summed up pithily by the Supreme Court, in E.G. Barsay Vs. State of Bombay AIR 1961 SC 1762 (an enunciation that was affirmed and applied in several alter decisions, such as Ajay Aggarwal v Union of India 1993 (3) SCC 609, Yashpal Mittal v. State of Punjab 1977(4) SCC 540, State of Maharastra v. Som Nath Thapa 1996(4) SCC 659, Firozuddin Basheeruddin v. State of Kerala, (2001) 7 SCC 596).
"The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable."
133. There is no doubt that evidence of criminal conspiracy is hard to come by. When such agreements are made, people are not expected to commit themselves in writing, nor are all conspirators necessarily aware of the entire plan, which may be known only to a handful. However, for the Court to draw a conclusion that there was criminal intent, the meeting of minds, there has to be strong circumstantial evidence pointing to the conspiracy......."
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 41 of 7117.12. In State (N.C.T. of Delhi Vs. Navjot Sandhu [2005 AIR SC 3820], Hon'ble Supreme Court has held as under:-
"Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its object have to be inferred from the circumstances and the conduct of the accused (Per Wadhwa, J. in Nalini's case (supra) at page
516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible". G. N. Ray, J. in Tanibeert Pankaj Kumar [1997(7) SCC 156], observed that this Court should not allow suspicion to take the place of legal proof.
As pointed out by Fazal Ali, J. in V. C. Shukla v. State [1980(2) SCC 665], "in most cases it will be difficult to get direct evidence on the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of an agreement between two or more persons to commit an offence." In this context the observations in the case Noor Mohammad Yusuf Mobim v. State of Maharshtra (AIR 1971 SC 885) are worth noting:
"... in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances, and antecedent and subsequent conduct, among other factors, constitute relevant material."
17.13. Regarding criminal conspiracy, ld. counsel for A-3 has contended that necessary ingredients of the offence are doing an illegal act or act which is not illegal by illegal means. It has been further contended that prosecution has failed to establish if A-1 CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 42 of 71 committed any illegality while approving the various proposals of A-2 or he has adopted any illegal means in approving these proposals submitted by A-3. There is no doubt about these essential ingredients of offence of criminal conspiracy. As already discussed, extension of loan of Rs. 8,50,000/- by A-3 to A-2, who was wife of A-1 and who was dealing with various proposals submitted by A-3 in his official capacity as Director, DDK at the relevant time, has been established. These established facts are required to be tested on the touch stone of various legal provisions with which accused persons have been charged.
17.14. Ld. counsel for A-3 to support his contentions regarding the non-existence of ingredients of offence of criminal conspiracy has relied upon observations made by the Apex court in K. R. Purshottaman (supra). The relevant paras 13 & 14 of the observations made by the court are as follows:-
"13. To constitute a conspiracy, meeting of mind of two or more persons for doing an illegal act or an act by illegal mens is the first and primary condition and it is not necessary that all the conspirators must know each and every detail of conspiracy. Neither it is necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The agreement amongst the conspirators can be inferred by necessary implications. In most of the cases, the conspiracies are provided by the circumstantial evidence, as the conspiracy is seldom an open affairs The existence of conspiracy and its objects are usually deducted from the circumstances of the case and the conduct of the accused involved in the conspiracy. While appreciating the evidence of the conspiracy, it is incumbent on the Court to keep in mind the well-CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 43 of 71
known rule governing circumstantial evidence viz., each and every incriminating circumstance must be clearly established by reliable evidence and the circumstances provided must form a chain of events from which the only irresistible conclusion about the guilty of the accused can be safely drawn, and no other hypothesis against the guilt is possible. The criminal conspiracy is an independent offence in Indian Penal Code and not an accomplishment. Conspiracy consists of the scheme or adjustment between two or more persons which may be express or implied or partly express and partly implied. Mere knowledge, even discussion, of the plan would not per se constitute conspiracy. The offence of conspiracy shall continue till the termination of agreement.
14. The suspicion cannot take the place of a legal proof and prosecution would be required to prove each and every circumstance in the chain of circumstances so as to complete the chain. It is true that in most of the cases, it is not possible to prove the agreement between the conspirators by direct evidence but the same can be inferred from the circumstances, giving rise to conclusive or irresistible inference of an agreement between two or more persons to commit an offence. It is held in Noor Mohd. Vs. State of Maharashtra AIR 1971 SC 855 that "In most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances and antecedent and subsequent conduct amongst other factors constitute relevant material."
17.15. Judicial scrutiny of the facts proved on record will establish if any illegality was involved in these acts or not. One of the contention raised by A-3 is that there is no question of any conspiracy between all the three accused persons as A-2 was having independent business and residence at the relevant time as she was having strained relations with her husband, i.e. A-1. It has been further CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 44 of 71 stated that IO PW 22 has admitted that he has not come across any evidence, if A-3 and A-1 had ever met in the office of A-1 or elsewhere. The ld. counsel has further submitted that it is established on record that because of her strained relations, A-2 used to write her name as Chitra Basu instead of Chitra Pahari and she used to reside at D-17, Lajpat Nagar- III, New Delhi, instead of Andrews Ganj house where A-1 used to reside. To support his contention, ld. counsel has drawn attention of this court to the statement of IO PW 22 where he has admitted that address of A-2 on the seized documents, at Page 4/13, mark P22/DA (D-62), i.e. form no. 22, relating to property transactions was of Lajpat Nagar, the name of A-2 is mentioned as Chitra Pahari (Basu) wife of M. B. Pahari. She has mentioned her occupation as business and their office and residential addresses are mentioned as C/o Chitra Associates, D-17, Lajpat Nagar 3rd, New Delhi. It stands established on record that A-2 was shown running a firm M/s Chitra Associates and she had shown her business address of D-17, Lajpat Nagar 3rd, Delhi but whether any such firm existed or she actually transacted any business through this firm, no documentary evidence has come in this regard on record. Though DW-3 has stated that A-2 was using his address at D-17, Lajpat Nagar 3rd, New Delhi which was taken on rent from Mahender Kalia, but during his cross- examination, he has admitted that she was not residing at the said address. Moreover assertion by PW-14 that A-2 had claimed that she was proprietor of M/s Chitra Associates does not establish beyond doubt if this firm actually had any existence. If she would have been running the firm and doing business, same could have been easily proved by various documents, like bank account of the firm, income CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 45 of 71 tax returns filed by this firm, or by A-2 as proprietor of this firm etc., but no such documents has come on record. The contention raised by ld. counsel for A-2 that she was having strained relations with A-1 also gets negated from the statement of PW-16 as he has stated that he had sold the flat to A-203, Trishul Apartment, Chembur, Mumbai in the year 1996 to both A-1 and A-2, both have settled deal for Rs. 8,75,000/- with him. Regarding mentioning her name as Chitra Pahari (Basu) on some documents by A-2, it does not establish on its strength, that she was having strained relations with A-1 and due to this reason he started using her maiden surname.
Status of loan 18.0.As already discussed, the factum of making payment of Rs. 8,50,000/- by A-3 on behalf of A-2 to various persons showing this amount as loan to A-2 stands duly established. To appreciate the facts properly it has to be kept in mind that these loans were advanced by A-3 during 1997-99 and during same time various proposal regarding sponsored programmes of A-3, came up before A-1 and he had accorded sanction to these proposals. DW-1 has stated that A-3 was having relations with A-2 since 1991 when A-1 was posted in Calcutta, as they used to purchase gifts from her. Loan of Rs. 8,50,000/- is a big and hefty amount even by the present standards. Value of this amount during 1997 to 1999 can be well imagined by anyone. The statement of DW-1 only proves a casual relation between A-2 and A-3. During course of arguments, ld. counsel for A-3 has contended that A-2 had rendered consultancy services to various firms of A-3. There is absolutely no evidence, oral or documentary in this regard on record. The most important CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 46 of 71 factor which needs to be considered is that this amount was given to A-2 by A-3 without any interest. If A-3 was giving this hefty amount to A-2 as loan without any interest, in the background of their formal acquaintance or relations, same gets prone to suspicion. It was also argued on behalf of A-3 and A-2 that if story of prosecution is believed that A-3 was in fact giving bribe to A-1 by showing it as a loan to A-2, the same is highly nonsensical and will not appeal to the mind of a prudent man that even bribe money is paid by cheque.
18.1. It has been further submitted on behalf of accused persons that very factum that amount of Rs. 8,50,000/- was loan given by A-3 to A-2, coupled with business relationship between A-2 and A-3, establishes beyond doubt that there was no criminal misconduct involved at all on the part of A-1 and hence, question of conspiracy amongst accused persons does not arise. Payment of interest on loan is one of the inherent requirement along with the repayment. The dictionary definition of loan is as follows:-
"An act of giving money, property or other material goods to another party in exchange of future repayment of the principal amount along with interest or other financial charges. A loan may be for a specific, one time amount or can be available as open ended credit upto a specified ceiling amount."
18.2. As already discussed, it is clear from the loan file mark P-13/XY that there is not even a whisper in the entire file if there was any condition imposed upon A-2 that she also has to pay any interest on this loan amount.
Whether this loan was illegal gratification?
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 47 of 7119.0. The case of the prosecution is that A-3 approved the various proposals ( 7 in number) discussed in above paras without recommendations of the preview committee and to procure it, A-3 used to give illegal gratification to A-1 and the same was given colour of loan to M/s Chitra Associates (firm of A-2) and same was not paid back.
19.1.All the accused in this case are facing charges under Section 120-B IPC read with Sections 11, 12, 13(1)(a) and (d) of P.C. Act. Section 13(1)(a) of P. C. Act is as follows:-
"13. Criminal misconduct by a public servant.-
(1) A public servant is said to commit the offence of criminal misconduct,-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or "
19.2.Bare perusal of this section reveals that it punishes the offender, who habitually commits the offence as defined under Section 7. Section 7 of P. C. Act is as follows:-
"7. Public servant taking gratification other than legal remuneration in respect of an official act.- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 48 of 71 or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.
Explanation.-(a)"Expressing to be a public servant".
If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.
(b) "Gratification". The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.
(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.
(d) "A motive or reward for doing". A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within the expression.
(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and, thus, induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section."
19.3.The law is settled that demand and acceptance of any gratification other than legal remuneration, as a motive or reward, for doing any official act by public servant, is one of the essential requirement of Section 7 of P. C. Act. Reliance is placed upon M. R. Purshotham Vs. State of Karnataka [2014 Legal Eagle (SC) 739] CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 49 of 71 where the court has observed that in case under 7 and Section 13(1)
(d), the prosecution has to prove that there was a demand and there was acceptance of illegal gratification by the accused. In L. Laxmikanta Vs. State by Superintendent of Police, Lokayukta [2015 Legal Eagle (SC) 76], the Supreme Court has observed that it is settled principle of law laid down by this court in number of decisions that once the demand and voluntary acceptance of illegal gratification knowing it to be bribe are proved by evidence that conviction must follow under Section 7 against accused. Indeed these twin requirements are sine qua non for proving offence under Section 7 of P.C.Act.
19.4.In the present case, as discussed in detail in above paras, prosecution has failed to prove if A-1 has in any manner abused his position as a Director, DDK and thereafter DDG, DDK at any point of time and has favoured A-3 in approving his various proposals or has caused any financial loss to the public exchequer in any manner. Moreover, it is not the case of prosecution, if A-1 himself or A-2 on his behalf, acting under conspiracy, ever demanded any illegal gratification from A-3.Therefore, charge under Section 13(1)(a) of P.C.Act given to the accused persons, remain unproved.
19.5.The other charge given to accused persons is under Section 13(1)(d) of P. C. Act. This Section provides as follows:-
"13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,-
(a)....
(b)....
(c)...CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 50 of 71
(d) if he,-
(i) by corrupt or illegal mean s, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or 19.6. Ld. PP fairly concedes that case against accused persons is only under Section 13(1)(d)(iii) of P. C. Act. Even in the body of charge allegations against accused persons is that A-1 under conspiracy has committed offence of criminal misconduct while holding office as public servant by obtaining pecuniary advantages for purchasing flats at Delhi, Mumbai and Calcutta without any public interest.
19.7.How the act of A-1, alleged to be in conspiracy with A-2 and A-3, was without any public interest has not been deliberated either by Ld. PP or Ld. Counsel for accused persons. What is the meaning of "public interest" as provided under this Section has been dealt exhaustively by our High Court in Runu Ghosh Vs. P. Rama Rao [supra]. In this case one of the point strongly argued was that mens rea is one of the essential ingredient of offence as provided under Section 13(1)(d)(iii) of P. C. Act. After detailed analysis of the legal provision, the court concluded that mens rea is not an essential ingredient for convicting accused for offence under Section 13(1)(d)
(iii) of P. C. Act. Relevant portion of the judgment is as follows:-
"74. Having now settled that true interpretation of whether the offence under Section 13(1)(d) (iii) CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 51 of 71 requires proof of mens rea, it would now be vital to settle what really the prosecution would have to establish to say that the public servant's actions or decisions, which result in a third party obtaining as pecuniary advantage or valuable thing, without public interest. The expression "public interest" is known to law; at the same time its meaning is not rigid, and takes colour from the particular statute or policy (Ref. Srinivasa Co-operative House Building Society V. Madam Gurumurthy Sastry [1994 (4) SCC 675).
...... In a later decision, LIC of India Vs. Consumer Education & Research Centre, [(1955) 5 SCC 482], it was held that :
Public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest an it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision.
75.It would be profitable to emphasize that public servants are an entirely different class, and the level of trust reposed in them by the Society is reflected in the high standards of behaviour and rectitude expected of them, both in the discharge of their duties and otherwise. In the case of ministers - who are members of the Council of Ministers (the Cabinet) in the Union and State of Governments, as well as holders of other constitutional offices there is a requirement that before their appointment, each of them has to subscribe to an oath of office and secrecy according to the form set out in the Schedule, to the Constitution of India by which holders of such offices are required to take oath that he or she would discharge her or his duties in accordance with the Constitution and the law without CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 52 of 71 fear or favour, affection or ill will. This requirement is a constant reminder to the holder of that office that she or he is a trustee and custodian of public interest, and all decisions taken in that capacity are to be based on that factor alone. Holders of other public offices, under the State (a compendious term) are equally bound by such a condition. To ensure that they are afforded the amulet protection and immunity, the Constitution has mandated some safeguards (in the case of members of a service or holders of office under a State or the Union, the protection from arbitrary loss of employment, under Article 311, and the protection of status accorded by virtue of rules or enactments made, pursuant to Article 309 of the Constitution of India). There is an added layer of immunity in the form of requirement of sanction under Section 197 or other similar provisions, to protect public servants from needless harassment. However, when the public servant acts in a manner that is devoid of public interest, not only would the action become suspect, then, having regard to the nature of his action, and the heightened degree of blameworthiness, he is said to have transgressed the bounds of protection afforded to his decisions, and is then exposed to Prosecution.
77.The Court, as a consequence has to determine the objective criteria by which acts (of public servants) without public interest, are to be judged, if mens rea (to obtain pecuniary advantage or valuable thing to another) is not a necessary ingredient. This exercise is essential because in the absence of mens rea (which has been ruled out), the Court has to say what 'acts' resulting in someone obtaining pecuniary advantage or valuable thing are 'without public interest'. Obviously, the mere fact that a third party obtains pecuniary advantage, or a valuable thing, is insufficient; a supplier of equipment to public servants or offices, a travel agent who makes bookings for a public agency, a businessman or corporate group granted licenses or clearances, by CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 53 of 71 departments or agencies of the Government, would all stand to benefit. Many of these decisions are in fact, and all are, expected to be in public interest.
Therefore, the kind of behaviour which amounts to an 'act' resulting in someone '"obtaining pecuniary advantage" or "valuable thing" " without public interest" needs to be spelt out.
79. What then is the behaviour or act which attracts such opprobrium as to result in criminal responsibility? It is not every act which result in loss of public interest, or that is contrary to public interest, that is a prosecutable offence. There can be no doubt that all acts prejudicial to public interest, can be the subject matter of judicial review. In those cases, Courts consider whether the decision maker transgressed the zone of reasonableness, or breached the law, in his action. However, it is only those acts done with complete and manifest disregard to the norms, and manifestly injurious to public interest, which were avoidable, but for the public servant's overlooking or disregarding precautions and not heeding the safeguards he or she was expected to, and which result in pecuniary advantage to another that are prosecutable under Section 13(1)(d) (iii). In other words, if the public servant is able to show that he followed all the safeguards, and exercised all reasonable precautions having regard to the circumstances, despite which there was loss of public interest, he would not be guilty of the offence. The provision aims at ensuring efficiency, and responsible behaviour, as much as it seeks to outlaw irresponsibility in public servant's functioning which would otherwise go unpunished. The blameworthiness for a completely indefensible act of a public servant, is to be of such degree that is is something that no reasonable man would have done, if he were placed in that position, having regard to all the circumstances. It is not merely a case of making a wrong choice; the decision should CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 54 of 71 be one such as no one would have taken.
19.8.Concluding the detailed discussion on this subject, the court has observed that having regard to the existing law Section 13(1)(e) (which does not require the proof of criminal intent) as well as the strict liability standards prevailing in our system of law, therefore,a decision is stated to be without any public interest (if the other requirements of the provisions, i.e. Section 13(1)(d)(iii) are fulfilled) if that action of the public servant is the consequence of his/her manifest failure to observe those reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his/her duty to have adopted. Public servant acts without public interest, if his acts or decision, is by manifestly failing to exercise reasonable precaution to guard against injury to public interest, which he was bound, at all time to do, resulting in injury to public interest.
19.9. Evaluating the facts of the present case, in the light of the observations made by court in Runu Gosh (supra), there is absolutely no evidence on record to show if A-1 while discharging his duties as a public servant has, in any manner, helped A-3 of any pecuniary advantage or has compromised the rules and regulations governing him in discharge of his official duties while conducting business to the detriment of his department. In view of these reasons, charge under Section 13(1)(d)(iii) of P.C. Act also fails.
19.10.The other charge which accused persons are facing is under Section 11 & 12 of P. C. Act, 1988. These sections are as follows:-
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 55 of 71"11. Public servant obtaining valuable thing, without consideration from person concerned in proceeding or business transacted by such public servant.- Whoever, being a public servant, accepts or obtains or agrees to accept, or attempts to obtain for himself, or for any other person, any valuable thing without consideration, or for a consideration which he knows to be likely to be in adequate, from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or business transacted or about to be transected by such public servant, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.
12. Punishment for abetment of offences defined in Section 7 or 11.- Whoever abets any offence punishable under Section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."
19.11.One of the key ingredient of Section 11 is the act of public servant accepting for himself or for anyone else any valuable thing without consideration from a person whom he knows to have been concerning in any business, transacted by such public servant. As discussed in above paras, the story put forward by accused persons of strained matrimonial relations between A-1 and A-2 stands disbelieved. Defence taken by accused persons that since A-2 and A-3 were known to each other before 1993 when A-1 was posted in Calcutta and A-2 and A-3 were having business dealings since then, CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 56 of 71 is also not subscribed by this court because the reasons discussed in earlier paras.
19.12. The other defence which is continuously harped upon by the accused persons that the loan transaction between A-3 and A-2 contained in mark P-13/XY, was an honest and genuine loan transaction, also has various inherent inconsistencies and loopholes rendering it unacceptable to this court. The various reasons which compelled this court not subscribing to the defence, despite it being proved on record that all the communications contained in loan file mark P-13/XY are genuine communications and are much earlier to lodging of this FIR, are as follows:-
(i) Accused has failed to prove if their relations, i.e. either business or personal, were very thick much beyond mere acquaintance;
(ii) Even if it is assumed for the sake of arguments that A-2 and A-3 were having business relations (though they have failed to adduce absolutely any evidence to prove this fact except their mere assertion in the statement under Section 313 Cr.P.C. and during cross-
examination of IO), the amount of Rs. 8,50,000/- given by A-3 being a business man, without taking any collateral security (though documents talk about demand of security by A-3 from A-2) or any interest on it, does not appeal to common sense and legal prudence.
(iii) A-2 has also failed to prove M/s Chitra Associate's very existence, (no documentary evidence has come on record regarding its existence), was transacting any business. The defence put forward by A-2 during his statement under Section 313 Cr.P.C. that she had allowed A-3 to use the her properties and she also started procuring advertisement business for A-3 also remained unproved.
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 57 of 71(iv) If it was a simple loan transaction between A-2 and A-3, the same remained unpaid, why no efforts were made by A-3 to get it recovered. In the entire case, there is not even a whisper if any effort or legal recourse had been taken by A-3 at any point of time to recover this amount.
19.13. What appears from these proved circumstances, discussed above is that A-3 had given this amount to A-2 by cheque, pay order etc. through banking transactions and not in cash as A-2 was required to pay this amount to the builders from whom she had purchased properties at Delhi, Mumbai and Calcutta. 19.14. One of the essential ingredients of Section 11 of P. C. Act is that valuable thing should have been obtained by public servant without consideration. Here as discussed above, prosecution has failed to bring an iota of evidence against A-1 to establish if he has favored A-3 in his business actions in any manner by approving his various proposals which he was dealing in routine discharge of his duties as a Director DDK and DDG, DDK. Therefore, prosecution is held to have succeeded in proving one of essential ingredient of Section 11 against accused person that the said amount was accepted by A-2 from A-3 without involvement of any consideration.
19.15. The presumption under Section 20 is the other bone of contention between parties. Section 20 of P. C. Act is as follows:-
"20. Presumption where public servant accepts gratification other than legal remuneration.- (1) Where, in any trial of an offence punishable under Section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 58 of 71 person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be without consideration or for a consideration which he knows to be inadequate.
19.16.In Gopal Singh Vs. CBI [ILR (2005) II Delhi 35], the court has observed that prosecution succeeds the moment it is shown that the public servant has accepted some money from someone which was not legal remuneration, the presumption under Section 20 of the Act comes into play shifting burden upon public servant to explain as to why he has received money.
19.17. Under what circumstances, this presumption has to be drawn in the facts of this case, our Hon'ble High Court in Yashpal Raghav Vs. State [2012 Legal Eagle (Delhi) 800] has observed as follows:
"24. Section 20 raises a statutory legal presumption in a situation where a public servant has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person. Once the prosecution has established through cogent and reliable evidence, the factum of this condition, the legal presumption comes into existence.
19.18. Further relevant paras 25, 26, 27 of Yashpal Raghav (supra) are as follows:-
"25. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 59 of 71 court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption is Law of Evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled.
26. In this regard, observation of the Supreme Court in the case reported as M. Narsinga Rao v. State of Andhra Pradesh (2001) SCC 691 are noteworthy: "13. Before proceeding further, we may point out the expressions "may presume" and "shall presume" are defined in Section 4 of the Evidence Act. The presumption falling under the former category are compendiously known as "factual presumptions" or "compulsory presumptions" . When the expression "shall be presumed" is employed in Section 20(1) of the Act it must have the same import of compulsion."
14. When the sub-section deals with legal presumption it is to be understood as in terrarium i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.
15. The word "proof need be understood in the sense CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 60 of 71 in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word "proved" in the Evidence Act. .....
27. It is now established that the quantum or degree of proof required to displace the presumption under Section 20 is not understood to be beyond all reasonable doubt. The burden of such a presumption may be disproved by evidence put forth by accused which satisfies the court of probability of its truthfulness.
19.19. In view of the legal position discussed above, accused were required to rebut this presumption by probabilising their defence. To rebut this presumption accused have heavily relied upon the loan file mark PX 13/XY. The defence of loan propounded by accused persons, as discussed above, has already been disbelieved. Accordingly, with the aid of presumption as provided under Section 20 of the Act, prosecution is held to have proved all the ingredients of offence against the accused persons.
19.20.Section 12 punishes abetment of offence defined under Section 11 of P. C. Act.
19.21.Abetment has not been separately defined under P. C. Act. The same has been defined under Section 107 IPC. Section 107 IPC is as follows:-
"Abetment of a thing.- A person abets the doing of a CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 61 of 71 thing, who-
First.- Instigate any person to do that thing, or Secondly.- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by an act or illegal omission, the doing of that thing."
19.22.Under Section 120-A, the essence of offence of criminal conspiracy is a bare agreement to commit the offence, the abetment under Section 107 I.P.C. requires the commission of some act or illegal omission, pursuant to the conspiracy. The charge under Section 107/109 IPC should, therefore, be in a combination with substantive offence, whereas charge under Section 120A/120-B IPC could be an independent charge. (Reliance is placed on State (N.C.T. of Delhi Vs. Navjot Sandhu (supra).
19.23.Section 107 secondly of IPC provides that if a person engages with one or more persons for doing any act or illegal omission and same (act and illegal omission) takes place, then he is liab le for having committed offence of abetment.
19.24.As discussed in above paras, the charge that all the accused persons acted in conspiracy as defined under Section 1 20-A IPC, stands duly proved, from the incriminating circumstances established on record by the prosecution. The most important incriminating circumstance which proves beyond reasonable doubts meeting of CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 62 of 71 minds of the accused persons are, firstly, the various loan transactions between A-3 and A-2 are from 1996 to 1999 and this was the period when A-1 was dealing with the various proposals submitted by A-3 through his firms; secondly the non-existence of a relation of such a nature which may have drived A-3 to give loans of this huge amount gratuitously to A-3; thirdly there being no interest clause and legal recourse on the part of A-3 to recover this amount.
19.25.Both A-2 and A-3 are also facing charge under Section 14 of P. C. Act which reads as follows:-
"14. Habitual committing of offence under section 8,9, and 12.- Whoever habitually commits,-
(a) an offence punishable under section 8 or section 9; or
(b) an offence punishable under section 12, shall be punishable with imprisonment for a term which shall be not less than two years but which may extend to seven years and shall also be liable to fine."
19.26.Section 14 punishes the habitually committing of offence under Section 12 of P. C. Act.
19.27.There are number of transactions vide which A-3 advanced various amounts during 1996 to 1999 to A-2. Since ingredients of offence under Section 12 stands proved against both the accused persons, charge under Section 14 of P. C. Act also stands proved.
Concusion 20.0. In view of the foregoing discussion, it is held that prosecution has been able to prove beyond reasonable doubt that during 1996 to 1999, when A-1 was working as Director, DDK and CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 63 of 71 DDG, DDK, A-3 submitted 7 proposals through his different firms for approval, these proposals were dealt by A-1 in discharge of official dutieis and during the same period, A-3 paid Rs. 8,50,000/- by way of DD/pay order/cheque to various builders on behalf of A-2. The obvious inference from these transactions is that all these happened because of the three accused persons, i.e. A-1 (deceased), A-2 and A-3 were acting under an agreement.
20.1. The prosecution is held to have failed to prove that under the conspiracy A-1 had committed any misconduct as defined under Section 13(1)(a) and 13(1)(d)(iii) of P. C. Act.
20.2. Accordingly, A-2 and A-3 are acquitted from the charges under Section 13(1)(a) &13(1)(d)(iii) of P. C. Act read with Section 120-B IPC. They are held guilty and convicted for offences punishable under Section 120-B IPC read with Section 11 & 12 of P. C. Act. They both are individually also held guilty and convicted for offences under Section 12 & 14 of P. C. Act.
Announced in open court ( SANJAY GARG-I ) on this 07th day of October, 2015. SPECIAL JUDGE-IV, CBI (PC Act) TIS HAZARI COURTS,DELHI CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 64 of 71 IN THE COURT OF SANJAY GARG-I : SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No. 14/2008ID No. 02401R0143682003 Central Bureau of Investigation (CBI) Versus
1. M. B. Pahari (Abated) ... Since deceased
2. Smt. Chitra Pahari W/o. Late Shri Malay Bikas Pahari, R/o. Q-14, Andrews Ganj, Ext., New Delhi 110049. ... Convict No. 2
3. Rakesh Gupta Manging Director, M/s. Softline Media Ltd., M/s. Victoria Publicity Pvt. Ltd.
37-38 Rani Jhansi Marg, New Delhi. ... Convict No. 3 Order on sentence
2.Heard Shri Anil Tanwar, ld. PP for CBI & Sh. Yogesh Verma, Ld. defence counsel for convict no.2 Chitra Pahari and Sh. Vijay Aggarwal, Ld. defence counsel for convict no.3 Rakesh Gupta on the quantum of sentence.
3.Shri Yogesh Verma, learned counsel for the convict Chitra Pahari submits that convict is widow aged 60 years having two married CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 65 of 71 daughters and living in Mumbai. It is stated that she is suffering from Arthrities and blood pressure. It is stated that she is facing the trial for the last 17 years. It is further stated that there is no male member in the family to look after her and she is solely dependent on her two daughters for her care. It is stated that she has no source of income and has to undergo surgery for Arthrities. It is stated that keeping in view the above condition and ailment of the convict, lenient view be taken.
4. Learned counsel Shri Vijay Agarwal for convict Rajesh Gupta has submitted that convict has old aged parents, i.e. 82 years (father) and 78 years (mother) and one unmarried son dependent upon him for their day to day care and maintenance. It was stated that he is first offender and has suffered agony of trial for 15 years. It was stated that background of convict may also be considered while awarding sentence. It was stated that he is running various charitable institutions, i.e. Gopal Gau Sadan, spread over 15 acres of land and looking after 4000 cows with the budget of Rs. 6 crores and 132 employees, providing employment to 600 farmers on agricultural land of 1200 acres in Tamil Nadu by employing latest system of irrigation and cooperative farming, running Sadhna Kunj Orphanage, having married poor children, blood donation camps being president of Rotary Club. It is stated that he is running Sadhna TV Channel which is distributed across 120 countries, giving employment to 600 full time employees. It is stated that he is also running six other news channels and editor of monthly magazine Sadhna Path. He is also stated to be running Sadhna academy for media studies and web portal ClickJobs. It is stated that he is also author of three books and CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 66 of 71 included in the list of accredited journalist by Delhi government in 2010. It is stated that convict has financial liabilities of Rs. 20 crores of the companies in which he is concerned. He has also personal liability of Rs. 30 crores. It has been submitted that if convict is sent behind bar, his entire business establishment will come to a halt and about 200 families will be adversely affected.
5. Ld. counsel for convict has stated that while awarding sentence, the court is required to consider reformatory, deterrent and punitive aspect of the punishment. In support of his submissions, he has relied upon (i) Dilbagh Singh Vs. State of Punjab [(1979) 2 SCC 103], Slok Kumar & ors Vs. The State [2009(1) JCC 27], & State Vs. Kaptan Singh [2008(1) JCC 397].
6.The other important contention raised by ld. counsel for convict is that Section 18 of Probation of Offenders Act bars the applicability of this Act only to the offenders under Section 13(2) of P. C. Act. It was stated that there is no legal bar that other offences as provided under other sections of P. C. Act cannot be given benefit of Probation of Offenders Act. In this regard, Ld. counsel has relied upon Ishar Das Vs. The State of Punjab [AIR 1972 SC 1295] and Municipal Corporation of Delhi Vs. Rattan Lal [1971 Crl. L. J. 1485]. The last leg of arguments advanced by Ld. counsel is that the prolonged trial for 15 years is in itself a strong ground for adopting leniency while awarding sentence to the convict. In support of submissions, Ld. counsel has relied upon N.M. Parthasarathy Vs. State by SPE [(1992) 2 SCC 198] and Banwasi Seva Ashram Vs. State of U.P. Ors. [(1992) 2 SCC 202].
CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 67 of 717.The Ld. PP has submitted that offences under P. C. Act are white collar crimes and if convicts under P. C. Act are released on probation, it will send a very wrong message to the society. It is stated that various alleged philanthropic activities high lighted by Ld. counsel are not mitigating circumstances, at the maximum, the court can give some weightage under reformatory theory. It is stated that keeping in view nature of offenes, maximum punishment as ;provided under the Act should be awarded to the convicts.
8. In Santa Singh Vs. State of Punjab, 1976 SCC(Crl) 546, the Hon'ble Apex Court held:
"A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances- extenuating or aggravating-of the offence, the prior criminal record, if any, of the offender, his age and educational background, his record as to employment, home lief, sobriety and social adjustment, his emotional and mental condition, the prospects for his rehabilitation and return to normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such deterrence in respect of the particular type of offence. These are factors will have to be taken into account by the court in deciding upon the appropriate sentence.
2. Whether benefit of Probation of Offenders Act can be considered for an offence where minimum sentence is provided? This issue was considered by the Apex Court in Shyam Lal Verma Vs. CBI [2013 Legal Eagle (SC) 49], the court has observed that in view of settled CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 68 of 71 legal position vide judgment in State through SP, New Delhi Vs. Ratan Lal Arora, (2004) (4) SCC 590 and second in State Represented by Inspector of Police, Pudukottai, T. N. v. A Parthiban, 2006(11) SCC 473, in cases where a specific provision prescribe a minimum sentence, provisions of Probation Act cannot be invoked.
3.Ld. counsel for Convict no.3 has also relied upon Sri Sharma Vs. State [2008(2) JCC 1056]. In this case convict was held guilty for the offences under Section 7 and Section 13(1)(d) read with Section 13(2) of P. C. Act. In this case considering the prolonged trial of 10 years as one of the mitigating ground, the court awarded the minimum sentence provided for the offence.
4.In view of the law laid down by Apex Court in Shyam Lal Verma (supra) and nature of offence, convicts do not deserve for consideration of their case under Probation of Offenders Act.
5.As per the facts and circumstances discussed above, convict no. 3 has deep roots in the society and he has clean antecedents except this case. Convict no.2 is a widow, aged and suffering from various ailments. In this case FIR is dated 4.12.2000 and charge sheet was filed on 25.4.2003. Keeping in view the long journey of trial and other mitigating circumstances discussed above, both the convicts deserve leniency while awarding sentence. It is relevant to mention here that as per the facts of this case no financial loss to public exchequer was caused and CBI has also failed to establish if A-1 while in conspiracy with both the convicts had shown any favours to convict no.3. It is also relevant to mention here that both the offences under Section 11 CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 69 of 71 & 12 P. C. Act prescribes minimum sentence of six months and the maximum of five years and fine. The offence under Section 14 prescribes minimum of two years and maximum of seven years and fine.
12. Considering all aggravating and mitigating circumstances with regard to the facts of the case, different roles played by the convicts, the personal circumstances and their past record, Convict no. 3 is sentenced as follows:
(i) Rigorous imprisonment for one year and fine of Rs.
20,000/-, in default of payment of fine to undergo simple imprisonment for two months for the offence punishable under Section 120-B read with Sections 11 & 12 of Prevention of Corruption Act, 1988,
7.Rigorous imprisonment for two years and fine of Rs. 40,000/-, in default of payment of fine to undergo simple imprisonment for four months for the offence punishable under Section 12 of Prevention of Corruption Act, 1988, &
8. Rigorous imprisonment for two years and fine of Rs. 40,000/-, in default of payment of fine to undergo simple imprisonment for four months for the offence punishable under Section 14 of Prevention of Corruption Act, 1988;
Convict no. 2 is sentenced as follows:-
2. Rigorous imprisonment for one year and fine of Rs. 10,000/-, in default of payment of fine to undergo simple imprisonment for one month for the offence punishable under Section 120-B read with Sections 11 & 12 of Prevention of Corruption Act, 1988, CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 70 of 71
3.Rigorous imprisonment for two years and fine of Rs. 20,000/-, in default of payment of fine to undergo simple imprisonment for two months for the offence punishable under Section 12 of Prevention of Corruption Act, 1988, &
4. Rigorous imprisonment for two years and fine of Rs. 20,000/-, in default of payment of fine to undergo simple imprisonment for two months for the offence punishable under Section 14 of Prevention of Corruption Act, 1988;
13. All the sentences to run concurrently. Benefit of Section 428 Cr.P.C. be given to the convict.
14. A copy of the judgment and order on sentence be given to the convicts.
15. File be consigned to record room.
Announced in open court ( SANJAY GARG-I ) on this 12th day of October, 2015. SPECIAL JUDGE-IV, CBI (PC Act) TIS HAZARI COURTS, DELHI CC No.14/2008 CBI Vs. M.B. Pahari etc. Page 71 of 71