Delhi District Court
RcCy1/2009E0006 ("Cbi vs Kamlesh Kumar Jha") Dod: 31.01.2011 on 31 January, 2011
RCCY1/2009E0006 ("CBI V/s Kamlesh Kumar Jha") DOD: 31.01.2011
IN THE COURT OF VINOD YADAV: CHIEF METROPOLITAN MAGISTRATE: DELHI
RCCY1/2009E0006
CBI V/s Kamlesh Kumar Jha
31.01.2011
Present: Shri Y.K Saxena, Ld.Special PP for CBI alongwith IO DSP S.
Balasubramony.
Shri Rajeev Khosla, Counsel for applicant Krishan Kumar.
Shri K.K Manon, Counsel for Microsoft India.
Shri Sunil Sethi, Counsel for accused K.K Jha alongwith accused
on bail.
O R D E R:
This is the third application filed by applicant Shri Krishan Kumar, seeking permission to become state witness/prosecution witness. I have heard the parties at length. The first application was filed by this applicant on 16.09.2010, seeking to get recorded his statement U/s 164 Cr.P.C. CBI had supported the said application vide its reply dated 18.09.2010, filed in this court through IO. The said application was dismissed as withdrawn by the applicant on 18.09.2010.
2. Thereafter, second application was filed by this applicant on 21.09.2010, seeking tender of pardon U/s 306 Cr.P.C to which again CBI filed its reply on 22.09.2010, interalia giving their no objection to the recording of Order on Application for becoming State Witness ("Appn. Dismissed") Page 1 of 10 RCCY1/2009E0006 ("CBI V/s Kamlesh Kumar Jha") DOD: 31.01.2011 confessional statement by this applicant. This court vide order dated 22.09.2010 had marked the recording of statement U/s 164 Cr.P.C of this applicant/accused to Shri Siddharth Mathur, Ld.MM. The statement of applicant was accordingly recorded by learned MM on 22.09.2010 and the same was sent in a sealed envelope to this court. Today the said sealed envelope bearing seal of court (SM) has been opened in court and the statement of applicant has been taken out.
3. The third application of applicant is dated 28.10.2010, wherein it has been stated that pardon U/s 306 Cr.P.C has been granted to him by the court of learned MM on 22.09.2010 and as such, his name should be mentioned as "state witness/prosecution witness" and not as an accused. The CBI has also accorded its no objection to this application.
4. The learned counsel appearing for the applicant has submitted that once the statement of applicant U/s 164 Cr.P.C has been recorded by learned MM, on the directions of this court, the tender of pardon automatically stands granted to this applicant and he is liable to be treated as a witness rather than an accused. The learned counsel for Microsoft has also endorsed the arguments of learned counsel for the applicant. The learned Special PP for CBI has also towed the same line.
Order on Application for becoming State Witness ("Appn. Dismissed") Page 2 of 10 RCCY1/2009E0006 ("CBI V/s Kamlesh Kumar Jha") DOD: 31.01.2011
5. Before proceeding to appreciate the arguments of learned counsel for the applicant, learned counsel for Microsoft and learned Special PP, it would be appropriate to have facts of the case in brief.
6. On the basis of a complaint dated 22.12.2009, of Shri Anoop Kumar, Manager (Investigation), Microsoft Corporation India Pvt. Ltd., the CBI had registered the RC/FIR in the matter U/s 406/418/420/486/489/34 IPC r/w section 66 (b) and 85 of IT Act and 63 of the Copyright Act. It was alleged in the complaint that Shri Kamlesh Kumar Jha (hereinafter referred to as "A1" for convenience) was an Authorised Associate Distributor of Microsoft, having legitimate right to receive Windows Product of Microsoft namely Windows Vista and Windows XP Operating System, to copy genuine product key, however, "A1" allegedly procured counterfeit blank Certificate of Authenticity (COA) and counterfeit media containing infringed software from China and printed the same as genuine upon Vista XP product. It was further alleged that "A1" had used the online downgrading process from Window Vista for Window XP keys and as such, down graded 3217 Vista Keys over the last more than four months, without existence of actual customer and prior activation of the Vista keys. It was further alleged that out of the aforesaid down graded keys, over 40% were activated to the subsequent down grading, indicating that product did not have any end customer at the time of downgrading. Pursuant to the FIR, raids were conducted at 13 places on 23.12.2009, which also included flat No.234, pocketB, Sector18, Dwarka, Order on Application for becoming State Witness ("Appn. Dismissed") Page 3 of 10 RCCY1/2009E0006 ("CBI V/s Kamlesh Kumar Jha") DOD: 31.01.2011 New Delhi, the office of applicant Krishan Kumar (hereinafter referred to as "A2" for convenience). The seized material from this place was got examined through expert of Microsoft and some of the material was also sent for GEQD examination. The report of GEQD has not been received so far by the IO, however, the opinion given by Microsoft Expert has probably been received by the IO, which was referred to before this court at the time of consideration on the application of A1 for release of some of the seized articles.
7. It is the admitted position of facts that "A1" was the "Gold Certified" partner of Microsoft. In June' 2008, he was awarded a Certificate for support in the sale of genuine Microsoft Software & Hardware Solutions and he was awarded a "Mercedes Benz G Class" car by the Microsoft.
8. At this stage, it is also somewhat admitted position that substantial part of the seized material from A1 and his other firm has been found to be "genuine", as certified by the three main distributors of Microsoft, namely "Irish Computers", "Redington Computers", and "Ingram Micro", however, the material which was seized from A2 has been found to be totally "counterfeit".
9. Although the stand of A1 is not to be seen at this stage, but with a view to see that no prejudice is caused to A1, in terms of the law laid down by our own Hon'ble High Court in case reported as, "2007 (8) AD (Delhi) Order on Application for becoming State Witness ("Appn. Dismissed") Page 4 of 10 RCCY1/2009E0006 ("CBI V/s Kamlesh Kumar Jha") DOD: 31.01.2011 449", titled as, "Ashok Kumar Aggarwal V/s CBI", I have perused the material on record which reveals that the FIR in this case was registered at the instance of one Shri Chandan Sonowal, who was a Director with Microsoft, who had persuaded A1 to dump stocks of Microsoft Products with a promise to give him better beckoned rebates, but A1 did not accede to his aforesaid anti Microsoft policies, as a consequence whereof hot words were exchanged between them, which led to A1 sending an E.Mail dated 14.10.2009 to Microsoft and as such, A1 and his companies were implicated in this case.
10. A2 does not appear to be a bonafide and truthful person. His conduct would be apparent from the reading of contents of his bail application dated 26.12.2009, which he had filed before this court, wherein he had categorically stated that the articles which were seized by CBI from his house on 23.12.2009, were supplied to him by Shri Chandan Sonowal in Irish Hotel, Gurgaon on the pretext that he was going on a tour of South India and would collect the same after coming back from tour. At that time, the stand of A2 was that he was a very small and low profile businessman and he could not deny the request of such a big officer of Microsoft, whose products were marketed by him and he neither checked the boxes nor made any enquiries about the same and the same material was kept by him at his residence on the instructions of said Shri Chandan Sonowal.
Order on Application for becoming State Witness ("Appn. Dismissed") Page 5 of 10 RCCY1/2009E0006 ("CBI V/s Kamlesh Kumar Jha") DOD: 31.01.2011
11. At the time of passing of order dated 22.09.2010 by this court, when recording of statement of A2 was marked by this court to Shri Siddharth Mathur, Ld.MM, his prerecorded statement was placed before this court by the IO and today when this court has gone through the statement U/s 164 Cr.P.C of this applicant, recorded by the learned Magistrate, as also the prerecorded statement of this applicant (recorded by the IO), it is revealed that there is virtually no difference therein. The statement U/s 164 Cr.P.C is running into ten pages and the same is verbatim identical to prerecorded statement. It appears that the statement was just read over by A2 to the stenographer of learned MM from his prerecorded statement. During one of the hearings, when this court asked A2 to give account of what he had stated before the learned MM, he could not give details of the said statement, which again creates doubt on the veracity of this accused being making true and correct account of the facts, as contemplated by Section 306 Cr.P.C. The sole object of Section 306 Cr.P.C is that court may tender pardon to a person, who had been directly or indirectly concerned in or privy to an offence on the conditions of his making a full and true disclosure of whole of the circumstances within his knowledge relating to the offence and to every other person concerned. In this case, it is prima facie apparent that this accused is playing like a puppet in the hands of IO.
12. The applicant having earlier withdrawn similar application before this court, the present application was not even maintainable. The joint Order on Application for becoming State Witness ("Appn. Dismissed") Page 6 of 10 RCCY1/2009E0006 ("CBI V/s Kamlesh Kumar Jha") DOD: 31.01.2011 arguments of learned Special PP, learned counsel for Microsoft and the learned counsel for the applicant that once the statement of applicant U/s 164 Cr.P.C stood recorded, that would automatically mean the tender of pardon having been granted to the applicant is wholly fallacious as, as per Section 306 (3) Cr.P.C, the Magistrate, who tenders a pardon to an accused has to give reasons for so doing and the tender of pardon cannot be automatic. The sole idea behind getting the statement of A2 recorded by a Magistrate was to test his veracity, on which this applicant has substantially failed.
13. The learned counsel for the applicant substantially relied upon the law laid down by the Hon'ble Supreme Court of India in case reported as, "2001 (8) SCC 289", titled as, "Jasbir Singh V/s Vipin Kumar Jhangi", to put forward a point that it is not for the court to see that the tender of pardon will be in the interest of successful prosecution of the other offenders or not. I have carefully gone through the said judgment. The said judgment is not at all applicable in the facts and circumstances of the present case.
14. The law which is applicable in the facts and circumstances of the present case is the one laid down by our own Hon'ble High Court in "Ashok Kumar Aggarwal's" case (supra), wherein the Hon'ble High Court, after considering almost entire law on the subject was pleased to hold that:
"Court considering the application U/s 306 Cr.P.C is not a mute spectator and keeping in mind the interest of coaccused persons, it should at least consider that the prosecution is not unduly favouring the person seeking pardon, at the cost of co accused".Order on Application for becoming State Witness ("Appn. Dismissed") Page 7 of 10
RCCY1/2009E0006 ("CBI V/s Kamlesh Kumar Jha") DOD: 31.01.2011
15. Para 23 and 24 of the aforesaid judgment are reproduced as under:
xxxxx
23. As held in the aforesaid case, the court observed, in no uncertain terms, that no procedure or action can be in the interest of justice if it is prejudicial to an accused.
The Special Judge is not to assume the role of public prosecutor and he is to ask the opinion of the public prosecutor on the proposal. However, at the same time, it needs to be emphasised that the Court is not a mute spectator and keeping in mind the interest of coaccused persons, he should at least consider that the prosecution is not unduly favouring the person seeking pardon, at the cost of the coaccused. It has been held by this court in "M.M Kochar Vs The State", "AIR 1969 Delhi 21", that tender of pardon and its acceptance by the person concerned is a matter entirely between the Court and the person to whom the tender is rendered and it is a purely executive or administrative action and not a judicial decision. This judgment was approved by the Apex Court in "State of UP Vs Kailash Nath Agarwal & Ors.", "(1973) 1 SCC 751". Treating the action as administrative action, the principles on which judicial review of administrative action is permissible would come into play.
24. It is trite law that every administrative action has to be supported by valid reasons and also that while taking decision all relevant material was placed before the authority to ensure that the authority which took the decision did not exclude from considering all the aspects".
xxxxx (Emphasis supplied)
16. In case reported as, "AIR 1921 Patna 499", it was held by the Hon'ble High Court that real culprit should not be left out in the hope of getting evidence against other accused. In case reported as, "1963 (1) Crl.LJ 547", titled as, "Kashinath Krishna Bopat V/s State of Mysore", it was held as under:
xxxxx
10. So the question that remains to be considered is whether the order of the District Magistrate should be permitted to prevail as against the order of rejection passed by the Special Judge. The exercise of the power to tender pardon rests on judicial discretion and the Magistrate or the Judge should proceed with great caution and on sufficient grounds, recognising the risk which the grant of a pardon involves of allowing an offender to escape just punishment at the expense of the other accused.
xxxxx Order on Application for becoming State Witness ("Appn. Dismissed") Page 8 of 10 RCCY1/2009E0006 ("CBI V/s Kamlesh Kumar Jha") DOD: 31.01.2011 xxxxx "A perusal of the record in this case shows that there is good deal of evidence collected by the prosecution against accused No.2 and to a lesser extent against accused No.1. It seems to me that this application is made by accused No.2 to escape the consequences of trial and also indirectly to help accused No.1 and see that he and accused No.1 will escape from legal punishment."
xxxxx (Emphasis supplied)
17. Further, in case reported as, "1974 Cr.LJ 957 (V 80C 311)", titled as, "Prabhat Ranjan Sarkar & Ors. V/s State of Bihar", it was held as under:
xxxxx
5. The object of Section 337 (1) of the Code is that the Magistrate will tender pardon with a view to obtaining evidence of any person supposed to have been directly or indirectly concerned in or privy to the offence. The Magistrate must come to the conclusion as to what compelled him to grant the pardon and, therefore, it is essential for the Magistrate to record reasons for so donig. The magistrate may be compelled to tender pardon to any person on the ground that it was impossible for the prosecution to prove the case in the absence of the evidence of such person (approver). Suppose in a case five witnesses are already there. The Magistrate can refuse to grant pardon on the ground that there are enough materials on the record to prove the case, and, therefore, it is not necessary to examine the approver in this case.
In this circumstance, it is obligatory on the part of the Magistrate to record reasons while granting pardon. On a perusal of the order passed by the Magistrate on 04 th May, 1972, it is apparent that no reasons have been assigned by the District Magistrate while granting pardon. In this view of the matter, I quash the order of granting pardon dated 04th May, 1972, passed by the District Magistrate, Patna".
xxxxx (Emphasis supplied)
18. A perusal of the material collected during investigation reveals that there is independent material against "A1" and his companies, but the substantial material which has been collected is against "A2".
19. At the fag end, it was argued by the learned counsel for the applicant that A1 did not make any complaint against A2 for having collected counterfeit material. This argument of the learned counsel for the applicant Order on Application for becoming State Witness ("Appn. Dismissed") Page 9 of 10 RCCY1/2009E0006 ("CBI V/s Kamlesh Kumar Jha") DOD: 31.01.2011 also does not has any weight, as A1 was not supposed to have the knowledge about A2 having collected counterfeit material from Shri Chandan Sonowal, as stated by the applicant himself in his bail application filed before this court. Therefore, considering the conduct of A2 and the entire material on record, I am not inclined to grant tender of pardon to the applicant. The application is accordingly dismissed.
20. The IO has been evading filing of chargesheet in the matter for a fairly long time now. This court hopes and trusts that the chargesheet would now be filed at the earliest. Investigation file be returned to the IO. Envelope containing statement of A2 be resealed with the seal of this court.
21. A copy of this order be given dasti to the parties.
Announced in the open court (Vinod Yadav)
on 31.01.2011 Chief Metropolitan Magistrate:
Delhi
Order on Application for becoming State Witness ("Appn. Dismissed") Page 10 of 10