Delhi District Court
1. Mahmood And Another vs State Of Uttar Pradesh on 8 October, 2012
1
IN THE COURT OF SH. N. K. SHARMA, SPECIAL JUDGE
(PC ACT)-02 DELHI.
RC No. 106(A)/95
CC No. 76/01
CBI
VS
1. SH. MAHESH CHAND AGGARWAL,
LEGAL ADVISOR, I.T.D.C.
H. Q. SCOPE COMPLEX,
LODHI ROAD, NEW DELHI.
2. SH. SATGUR PRASAD NIGAM,
OFFICIATING GM (PERSONAL),
I.T.D.C. H/Q. SCOPE COMPLEX,
LODHI ROAD, NEW DELHI.
Date of Institution : 11.03.1997.
Date of Arguments : 18.09.2012.
Date of Judgment : 29.09.2012.
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JUDGMENT
1. This judgment will dispose off the CBI criminal case referred to herein above filed by the CBI on 11.03.1997.
2. Briefly stated, this case was registered on the basis of a written complaint dated 15.12.1995 of complainant P. S. Krishna, Dy. General Manager (CS), ITDC, New Delhi, alleging therein that while officiating as General Manager in ITDC (Ashok Hotel) had been placed under suspension in July 1991 and after the departmental proceedings, he was exonerated of the charges leveled against him. He resumed duties in September, 1995 after his suspension was revoked. He represented to the Chairman cumManaging Director, ITDC, in October, 1995 for release of his dues as he had been intimated by his department that the 2 of 68 3 subsistence allowance already paid to him was deemed to be sufficient. On 13.12.1995, Sh. Krishna learnt that his matter was pending in the Legal Cell with Sh. M. C. Aggarwal, Legal Advisor, who directed Sh. Krishna to contact Sh. S. P. Nigam, Officiating GM (Personal). Accordingly, Sh. Krishna contacted Sh. Nigam, who told him that in case he wanted the matter to be settled in his favour, he would have to pay 30% of the arrears and he also instructed him to calculate his arrears and then meet him.
3. As Sh. Krishna smell some foul play at the hands of Sh. Aggarwal and Sh. Nigam, he went to Sh. Nigam, carrying a mini tape recorder with him on 14.12.95. Sh. Nigam insisted on payment of at least 20% of the arrears which would have been around Rs.30,000/. On the request of Sh. Krishna, Sh. Nigam agreed to take the first installment of Rs.20,000/ and also 3 of 68 4 directed the complainant Sh. Krishna to inform him in advance so that he could collect the money from his residence. Sh. Krishna recorded/ taped the said conversation. After arranging Rs. 12,000/ the complainant Sh. Krishna came to CBI office on 15.12.1995 and lodged the written complaint alongwith the said audio micro cassette to the SP/CBI/ACB, Delhi for taking necessary legal action against both the accused persons as he did not want to pay the bribe money to both of them.
4. On the basis of the complaint dated 15.12.1995, the instant case was registered and investigation was entrusted to Dy. SP S. K. Peshin, CBI/ACB/New Delhi, who for verifying the genuineness and veracity of the allegations made in the complaint, Sh. Krishna was made to talk on telephone to Sh. M. C. Aggarwal on 15.12.1995 in presence of an independent 4 of 68 5 witness Anil Kumar Sharma from CBI office. This telephonic conversation was tape recorded and the same cassette was sealed. During this conversation, it was clear that the file of Sh. P. S. Krishna was in the knowledge of Sh. M. C. Aggarwal. Sh. Krishna also informed Sh. M. C. Aggarwal that he had a talk with Sh. Nigam about the money after hearing this, Sh. Aggarwal has expressed his tacit approval of the arrangement. Sh. Aggarwal has also confirmed the fact that Sh. Nigam has not come to office on 15.12.1995. Again on 18.12.1995, at the time of the subsequent telephonic conversation, both Sh. Aggarwal and Sh. Nigam were sitting together and Sh. Aggarwal talked to Sh. Krishna first and then Sh. Nigam was told by Sh. Krishna that he had got the cash ready and that he could collect the money. Sh. Krishna also informed the TLO that in the meantime Sh. Nigam 5 of 68 6 had visited his residence but he had avoided making the payment. Thereafter, a trap team constituted including two independent witnesses namely Anil Kumar Sharma and Om Prakash. The complainant had been able to arrange Rs.12,000/ consisting of 100 GC notes of Rs.100/ denomination each and 4 GC notes of Rs.500/ denomination each. Their numbers were recorded in Annexure A to the Handing Over Memo. The complainant was directed to hand over the bribe money to Sh. Nigam only on the specific demand of bribe and not otherwise and to give a signal regarding completion of the transaction by shouting 'Shobha'. Independent witness Anil Kumar Sharma was directed to act a shadow witness from the room adjacent to the drawing room at the complainant's residence, from where he could overhear the conversation and to see the handing over of 6 of 68 7 the bribe money by the complainant to Sh. Nigam. All the pre trap formalities were recorded in the Handing Over Memo. The trap team proceeded to the residence of the complainant at G87, Vikas Puri, New Delhi and after reaching over there the members took suitable positions.
5. Further the case of the prosecution is that around 9.15 PM, Sh. Nigam reached the residence of the complainant Sh. P. S. Krishna and was seated in the Drawing Room. During conversation, Sh. Krishna informed Sh. Nigam that he had been able to arrange Rs.12,000/ only and Sh. Nigam directed him to pay the remaining amount expeditiously in case he wanted early release of the pending allowance. It was also mentioned that Sh. M. C. Aggarwal, wanted the money for giving a favourable note and clearing the file. Sh. Nigam took the bribe money with his left 7 of 68 8 hand and kept in the lower left pocket of his coat. At this point, the complainant shouted 'Shobha' and the trap team members and Anil Kr. Sharma entered the drawing room and Sh. Nigam was apprehended. When challanged by Dy. SP S. K. Peshin, regarding acceptance of the bribe, accused Nigam become perplexed and silent. Shadow witness Anil Kumar Sharma and other trap team members, who were also present in the house, have also confirmed that they had seen the entire transaction and heard the conversation between the complainant and accused Nigam in the drawing room. The other independent witness Om Prakash was asked to recover the bribe money. The numbers of GC notes recovered from the coat pocket of accused Nigam tallied with those numbers which were noted in Annexure A of the Handing Over Memo. The left hand wash and coat pocket wash 8 of 68 9 were taken separately, which turned pink in colour confirming that the accused Nigam had accepted the bribe money from the complainant. The same were taken separately and duly sealed. Site Plan was prepared and personal search of accused Nigam was conducted on the spot. The chemical examination of these washes had shown the positive result. All the trap proceedings were recorded in the Recovery Memo.
6. Further the case of the Prosecution is that on the next day, the office premises of Sh. M. C. Aggarwal was searched and from the table of Sh. M. C. Aggarwal file pertaining to the disciplinary proceedings against Sh. Krishna was seized. A note dated 6.12.95 was also seized wherein Sh. Aggarwal had made a very strong recommendation for appointing Sh. Nigam as GM(Estates). During the course of the investigation, the 9 of 68 10 witnesses have categorically stated the above mentioned facts which happened in their presence and the recovery memo showing the details of recovery of bribe money and other facts on the spot, which prove that on the direction of accused M. C. Aggarwal, accused Nigam demanded and accepted illegal gratification of Rs.12,000/ on 18.12.95 from the complainant P. S. Krishna for giving a favourable note and clearing the file in question pertaining to release of the pending allowance of the complainant. During the investigation, specimen voices of both the accused persons were obtained and sent with the questioned voices for comparison and expert opinion. The expert gave the positive opinion on the material sent to him.
7. According to the prosecution, the above facts disclosed commission of offences punishable under Section 120B of IPC 10 of 68 11 read with Section 7 as well as Section 13 (1) (d) r/w Section 13(2) of Prevention of Corruption Act, 1988 on the part of accused Mahesh Chand Aggarwal and accused Satgur Prasad Nigam.
8. After obtaining the sanction of prosecution from the competent authority, IO has filed present charge sheet for the trial of accused Mahesh Chand Aggarwal and accused Satgur Prasad Nigam, for the commission of offences punishable under Section 120B of IPC read with Section 7 as well as Section 13 (1) (d) r/w Section 13(2) of Prevention of Corruption Act, 1988 on the part of accused Mahesh Chand Aggarwal and accused Satgur Prasad Nigam.
9. On appearance of the accused persons, copies of charge sheet and documents relied upon by the CBI were supplied to them.
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10. Charges against accused Mahesh Chand Aggarwal and accused Satgur Prasad Nigam for their trial for the offences punishable under Section 120B of IPC read with Section 7 and 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 were framed. Substantive charges under Section 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 was also framed against accused Mahesh Chand Aggarwal. Substantive Charges under Section 7 and 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 was also framed against accused Satgur Prasad Nigam.
11. In support of its case the CBI examined the following witnesses:
12. PW1 Dr. Rajinder Singh, SSOI (Physics), CFSL, has examined the four parcels and gave his detailed report Ex.
12 of 68 13 PW1/A.
13. PW2 P. S. Krishna, the complainant, has identified his signatures on Representation Ex. PW2/A, Complaint dated 15.12.1995 Ex. PW2/B, Handing Over Memo Ex. PW2/C, Annexure A Ex. PW2/D, Recovery Memo Ex. PW2/E, Memo Ex. PW2/F pertains to the recording of Conversation on telephone on 18.12.1995, Memo Ex. PW2/G pertains to the recording of conversation on phone recorded on 15.12.1995 and Memo Ex. PW2/H pertains to Handing Over of the cassette recorded on 14.12.1995. He has also identified his voice and the voice of accused M. C. Aggarwal in Transcription (Ex. PW2/J).
14. PW3 K. S. Chabra, retired as SSO cum Assistant Chemical Examiner, CFSL, has examined two sealed bottles, which were received in the office and gave his report Ex. PW3/A. 13 of 68 14
15. PW4 Amar Singh, Executive and PW5 A. C. Guglani, Executive have identified their signatures on Specimen Voice Recording Memo Ex. PW4/A.
16. PW6 Anil Kumar Sharma, shadow witness has identified his signatures on Cassette Ex. PW6/A, Cloth Wrapper Ex. PW6/B, Cassette Ex. PW6/C, Proceedings Ex. PW2/E, Annexure PW2/D, Memo Ex. PW2/F and Ex. PW2/G, Labels pasted bottles Ex. PW6/D and Ex. PW6/E, cloth wrappers Ex. PW6/F and Ex. PW6/G, Personal Search Memo Ex. PW6/J of Accused S. P. Nigam and Site Plan Ex. PW6/K.
17. PW7 Romesh Sharma, Sr. Assistant has also identified his signatures on Search Memo, which was prepared at the time of search of office room of accused S. P. Nigam, vide which one personal file of S. P. Nigam and one bunch of papers were seized 14 of 68 15 by CBI team.
18. PW8 Satish Chander Chatawal, has identified his signatures on Sanction Order Ex. PW8/A. He has deposed that he accorded sanction order against accused S. P. Nigam after application of his mind. Before according the Sanction, he has gone through the entire record pertaining to the case and then he accorded Sanction.
19. PW9 J. N. Tanwar is the member of the team at the time of the search of the office of accused M. C. Aggarwal. He has identified his signatures on the Search Memo Ex. PW9/A, on the upper right corner of all the pages of file containing 163 pages Ex. PW9/B. He has also identified the signatures of D. S. Gosai on Seizure Memo Ex. PW9/A and File Ex. PW9/B respectively.
20. PW10 Anil Kumar Bhandari, has identified his 15 of 68 16 signatures on Sanction Order Ex. PW10/A at point A vide which Board of Directors of M/s. ITDC Ltd. granted sanction of prosecution against accused no.1 Mahesh Chand Aggarwal, on photocopies of the minutes of the 189 & 191 meetings held on 30.12.1996 and 19.03.1997 Ex. PW10/E and Ex. PW10/F respectively.
21. PW10 has also identified signatures of Sh. C. Stephen, Company Secretary, on Certified Copy of the extracts of the minutes of the Meeting No. 189 dated 30.12.1996 Ex. PW10/B, Certified Copy of Agenda by Circulation Ex. PW10/C, Certified Copy of letter of CBI Ex. PW10/C1, Certified Copy of Sanction order which was circulated among the Directors Ex. PW10/C2, Certified Copy of confirmation of approval Ex. PW10/D.
22. PW11 SP S. K. Peshin, is the Trap Laying Officer. He 16 of 68 17 has proved the carbon copy of the FIR Ex. PW11/A and also other documents which were already proved by PW2 P. S. Krishna and PW6 Anil Kumar Sharma.
23. PW12 Om Prakash, Recovery witness, has identified his signatures on Handing Over Memo Ex. PW2/C, Annexure to Handing Over Memo Ex. PW2/D, Recovery Memo Ex. PW2/E, Personal Search Memo Ex. PW6/J, Site Plan Ex. PW6/K, Left Hand Wash of accused Nigam Ex. PW6/D and coat pocket wash of accused Mr. Nigam Ex. PW6/E, cloth wrappers of bottles Ex. PW6/F and Ex. PW6/G.
24. PW13 Bhagwan Singh, Senior Assistant, Legal Cell, India Tourism Development Corporation, has deposed orally. He has not proved any document.
25. PW14 D. S. Gosain, has identified his signatures on 17 of 68 18 Search Cum Seizure Memo Ex. PW9/A and file Ex. PW9/B.
26. PW15 Vinod Kumar Tuli was declared hostile by the prosecution as he resiled from his previous statement recorded under Section 161 Cr. P. C.
27. PW16 Virender Kaur, Stenographer, India Tourism Development Corporation, who was working with accused no. 2 S. P. Nigam during the year 1995 has deposed orally. She has not proved any document.
28. PW17 S. B. Motwani has identified the handwriting and signatures of Sh. S. C. Chhatwal on noting dated 5.12.1995 Ex. PW17/A at page no. 162 of file Ex. PW9/B, vide which Sh. S. C. Chhatwal marked the file to Legal Adviser on 05.12.1995 vide diary no. 3363. He deposed that vide diary No. LA/515, dated 07.12.1995 the file was marked to Manager (Legal). He has also 18 of 68 19 identified the signatures of accused M. C. Aggarwal on noting dated 06.12.1995 in file Ex. PW17/B.
29. PW18 Inspector Shobha Dutta is the member of the trap team. She has identified her signatures on Annexure Ex. PW2/D of the Handing Over Memo, Recovery Memo Ex. PW2/E, Personal Search Memo of accused Nigam Ex. PW6/J and on Site Plan Ex. PW6/K.
30. PW19 Dy. SP Rajiv Kumar Chadha has deposed that the investigation of the present case was transferred to him from Sh. S. K. Peshin, the then Dy. SP on 16.01.1996 for further investigations. He has identified his signatures on Specimen Voice Memo Ex. PW4/A, Production Cum Seizure Memo Ex. PW19/A vide which he has seized one file Ex. PW17/B in respect of "Filling up post of GM(Estates) in ITDC" from Sh. S. R. 19 of 68 20 Vats, Search Cum Seizure Memo Ex. PW9/A vide which he has carried out search office premises of accused M. C. Aggarwal and seized some documents, Production cum Seizure Memo Ex. PW19/B vide which he has seized File Movement Register of the office of Legal Adviser ITDC from PW13 Sh. Bhagwan Singh, Assistant Legal Adviser. He has further deposed that he has dictated the transcription Mark PW19/A to his steno. After obtaining the Sanction for prosecution against both the accused persons from their Competent Authorities and filed the charge sheet against both the accused person.
31. After conclusion of the prosecution evidence, statements under Section 313 Cr. P. C. of both the accused persons were recorded. The accused persons have denied their involvement in commission of offence and have stated that they have been falsely 20 of 68 21 implicated in this case by the complainant as the complainant is having grudge against them.
32. Accused persons have not led any defence evidence.
33. I have heard final arguments of Learned PP for CBI and Sh. N. K. Sharma, Advocate, Ld. Counsel for accused no. 1 Mahesh Chand Aggarwal and Sh. M. K. Gupta, Advocate, Ld. Counsel for accused no. 2 S. P. Nigam and perused the record. Ld. Defence counsel for accused no.1 M. C. Aggarwal has addressed oral arguments and also filed written submissions running into 20 pages. Similarly, ld. Defence Counsel for accused no.2 S. P. Nigam has addressed oral arguments and also filed written submissions running into 52 pages. As the detailed written submissions have been filed on behalf of the accused persons, which are on the judicial file, hence on account of brevity, the same are not incorporated in this judgment.
34. Ld. PP for the CBI has argued that the prosecution has proved 21 of 68 22 its case that accused no. 1 Mahesh Chand Aggarwal being public servant while working as Legal Advisor, ITDC entered into a criminal conspiracy with his co-accused Satgur Prasad Nigam, General Manager (Personnel) ITDC, had demanded 20% of the arrears which amounted to Rs.30,000/- and on the request of the complainant, accused no.2 S. P. Nigam agreed to take Rs.20,000/- and in pursuance of the said criminal conspiracy, accused no.2 S. P. Nigam was caught red handed with the bribe amount of Rs.12,000/- by the CBI team on 18.12.1995 from the residence of the complainant. It has been further argued that prosecution has proved its case beyond reasonable doubts against both the accused persons, hence they may be convicted.
35. It has been argued by Ld. Defence Counsel for the accused no. 1 Mahesh Chand Aggarwal that the Prosecution has failed to bring any iota of evidence to show the criminal conspiracy between accused no.1 M. C. Aggarwal and accused no. 2 S. P. Nigam. It is further argued that accused no.1 has been falsely implicated in the present case and there is no direct demand of bribery by accused no.1 from the complainant and there is no case of acceptance of bribe money by accused no.1 either for himself or on behalf of accused no.2. It is further argued by the ld. Defence Counsel that no recovery has been effected from the accused 22 of 68 23 no.1 M. C. Aggarwal. He placed reliance on the following citations :-
1. MAHMOOD AND ANOTHER VS STATE OF UTTAR PRADESH (2009) 1 SCC (CRI) 763.
2. STATE OF KARNATKA VS AMEER JAIN, 2007 V A.D. (CR) SC
65.
3. OM PRAKASH VS STATE & ORS. (CBI), 2009 (2) JCC 1210 (DELHI).
4. STATE OF TAMIL NADU VS. NALINI & ORS., 1999 CRI. L. J.
3134.
5. K. R. PURSHOTHAMAN VS. STATE OF KERALA, 2005 (3) JCC (SC) 1847.
6. R. NATRAJAN & ORS. VS STATE, 2006(2) JCC 650.
7. R. M. MALKANI VS. STATE OF MAHARASHTRA, 1973, CR. L. J.
228.
8. NILESH DINKAR PARADKAR VS. STATE OF MAHARASHTRA, 2011 STPL (WEB) 29 / SC.
9. SAVITA @ BABBAL VS. STATE OF DELHI, 2011 (3) 3CC 1687.
10.HAJI MOHAMMAD EKRAMUL HUQ. VS. THE STATE OF WEST BENGAL, AIR 1959 SC 488.
11.RAKESH BISHT ETC. VS CBI, 2007 CRI. L. J. 1530.
12.BANARSI DASS VS. STATE OF HARYANA, 2010 (3) JCC 1842.
13.KRISHNA JANARDHAN BHATT VS. DATTATRAYA HEGDE, (2008) 2 SCC (CRI.) 166.
14.ROSHAN VS. CBI & M. N. SHARMA VS. CBI, CRIMINAL APPEAL NO. 809/05.
15.V. VENKATA SUBBARAO VS. STATE REPRESENTED BY INSPECTOR OF POLICE AP, 2007 (1) CRIMES 101 (SC).
16.PREM SINGH YADAV VS CBI, 2011 (2) JCC 1059.
17.STATE (GOVT. OF NCT OF DELHI) VS GIRDHARI LAL VERMA, 2011 (3) JCC 1744.
36. It has been argued by Ld. Defence counsel for accused no.2 S. P. Nigam that the Prosecution has failed to bring any iota of evidence to show the criminal conspiracy between accused no.1 M. C. Aggarwal and accused no. 2 S. P. Nigam. It is further submitted by the learned 23 of 68 24 Defence counsel that accused is innocent and he has been falsely implicated in this case by the complainant. It is further submitted that the complainant had serious grudge against the accused no.2 S. P. Nigam as accused no.2 has stood as a witness against the complainant in the Preliminary Enquiry, which was conducted by Sh. S. K. Peshin. Accused no. 2 has been falsely implicated as the complainant has cordial relations with TLO / SP S. K. Peshin. It is further argued by the ld. Defence counsel that there are improvements in the testimonies of the prosecution witnesses as well as the material contradictions. He placed reliance on the following citations :-
1. MEHAR SINGH VS. STATE OF HIMACHAL PRADESH, 2001 CR. L. J. 499 H. P. HIGH COURT.
2. UDAI BHAN VS STATE OF BIHAR, 2005 CR. L. J. 4834 (JHARKHAND H. C. )
3. BINOD KUMAR PANDIT VS. STATE OF JHARKHAND, 2009 CR. L. J. (NOC) 111 (JHAR,)
4. CHIRANJI LAL VS. STATE OF M. P., 2009 CR. L. J. 1784 (M. P. HIGH COURT.)
5. STATE OF RAJASTHAN VS. BUDHI PRAKASH, 2008 CR. L. J. 1740 (RAJ. HIGH COURT.)
6. KAILASH CHAND PANDEY VS. STATE OF WEST BENGAL, 2003 CR. L. J. 4286 (CALCUTTA H.C. )
7. STATE OF HARYANA VS. JAI PRAKASH AND OTHER, 2000 CR. L. J. 4995 (2) S. C.
8. RANDHIR SINGH VS. STATE, 1980 CR. L. J. 1397 (DELHI H. C.).
9. NILESH DINKAR PARADKAR VS. STATE OF MAHARASHTRA, 2011 STPL (WEB) 291 SC. (SUPREME COURT OF INDIA).
PUBLIC SERVANT & SANCTION 24 of 68 25
37. The first point for consideration is as to whether the proper sanction for prosecution was accorded before initiation of prosecution against the accused persons or not as required under Section 19 (1) of Prevention of Corruption Act, 1988, which is mandatory and reads as under:-
"19. Previous Sanction necessary for Prosecution:-
(1) No Court shall take cognizance of an offence punishable under Section 7,10,11,13 and 15 alleged to have been committed by a public servant, except with the previous sanction, -
(a) in the case of a person who is employed in connection with the affairs of the union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his Office."
38. The undisputed position is that accused no.1 Mahesh Chand Aggarwal was working as Legal Advisor, Indian Tourism Development Corporation (ITDC) and accused no. 2 Satgur Prasad was working as General Manager (Personnel), ITDC and both the accused persons did not dispute this fact in their statement recorded under Section 313 Cr. P. C. Therefore, it stands proved that both the accused persons were 25 of 68 26 public servants within the meaning of Section 19 of the PC Act, 1988. SANCTION FOR PROSECUTION AGAINST ACCUSED NO.1 MAHESH CHAND AGGARWAL.
39. The evidence on record shows that on 07.03.1997, the Sanction Order was accorded for launching Prosecution under Prevention of Corruption Act against accused no.1 Mahesh Chand Aggarwal by PW10 Anil Kumar Bhandari, who in his deposition testified that he worked as Chairman Cum Managing Director of M/S. ITDC Ltd. He further deposed that the Board of Directors of M/s. ITDC Ltd. was the Competent Authority to remove accused no.1 Mahesh Chand Aggarwal from the service at the time of granting sanction. PW10 further deposed that he had signed the Sanction order as Chairman cum Managing Director of M/s. ITDC Ltd. He further deposed that after carefully examining the facts of the case, the Board accorded its sanction u/s 19 (i) (c) of the Prevention of Corruption Act, 1988 for prosecution of accused no. 1 M. C. Aggarwal, Legal Adviser 26 of 68 27 for the offences of demanding and accepting the bribe. The Board have also approved the Sanction letter and authorized the C&MD to sign it on their behalf and send the same to CBI for further action.
40. On the other hand, ld. Defence counsel argued that two Sanction Orders were passed for launching the Prosecution under Prevention of Corruption Act against accused no.1 Mahesh Chand Aggarwal by PW10 Anil Kumar Bhandari. First Sanction Order Ex. PW10/D1, dated 08.01.1997 was passed and Second Sanction Order Ex. PW10/A dated 07.03.1997 was passed. It is further argued by the ld. Defence Counsel that the Second Sanction Order dated 07.03.1997 Ex. PW10/A was confirmed retrospectively by the Board of Directors th of ITDC, in the 191 Meeting of the Board which was held on 19.03.1997. It is also argued that the Sanction orders were passed without application of mind.
41. Perusal of the record shows that the First Sanction order 27 of 68 28 dated 08.01.1997 was returned to ITDC by the CBI vide covering letter dated 27.02.1997 (Ex. PW10/C1) wherein it is mentioned that there are certain discrepancies in the format of sanction order as found by the Legal Officer.
42. In respect to Second Sanction Order Dated 07.03.1997, PW10 Anil Kumar Bhandari deposed during his examination in chief that a new circular resolution dated 05.03.1997 was sent to the Directors by the Company Secretary alongwith the Sanction Order on a correct format and it was approved by circulation by him as well as by all the Directors / Members of the Board of ITDC Ltd., who have signed. He further deposed that the Minutes were confirmed in the Meeting No. 191 held on 19.03.1997 by all the Directors present including him as Chairman Cum Managing Director as there was some changes in the Board of Directors.
th
43. I have gone through the Minutes of 191 Meeting of the 28 of 68 29 Board of Directors, which was held on 19.03.1997 Ex. PW10/F and was attended by the following six officers:
1. Sh. Anil Bhandari ....... Chairman & Managing Director.
2. Sh. Ashok Pradhan..... Director.
3. Sh. K. S. Menon.......Director.
4. Sh. S. C. Chatwal.... Director (Finance).
5. Sh. Saleem Hamid Director (M&C)
6. Sh. C. Stephen. Company Secretary.
44. It is further mentioned that at the outset, the C&MD informed the Board that the two year term of the four non Official Directors has th expired on 28 February, 1997. In appreciation of the contribution made by the outgoing Directors, the Board passed the following resolution:
1. Minutes of the Board Meeting held on 12.02.1997. : While considering confirmation of the Minutes of the Board Meeting held on 12.02.1997, the Board discussed the following:
2. (i) .................................
(ii) ...........................
(iii) ............................
(iv)................................
29 of 68 30
3. Thereafter the Board confirmed the Minutes of the Board held on 12.02.1997.
(2) Confirmation of Approval - Recommendations of the CBI against M. C. Aggarwal, Legal Advisor and S. P. Nigam, GM (IR)
4. The Board confirmed its approval given by circulation.
45. I have also gone through the Confirmation of Approval Recommendations of the CBI against accused M. C. Aggarwal and accused S. P. Nigam both under suspension Ex. PW10/D, wherein it is mentioned that the Agenda (AnnexureI) was circulated to the Members th of the Board on 05 March, 1997 Ex. PW10/C.
46. PW10 Anil Kumar Bhandari deposed during his examination in chief that all the Directors present in the Meeting have unanimously decided after application of mind to grant sanction of Prosecution against accused M. C. Aggarwal.
47. From the above discussions, It is clear that Second Sanction Order dated 07.03.1997 Ex. PW10/A was confirmed by the Board of 30 of 68 31 th Directors of ITDC, in the 191 Meeting of the Board which was held on 19.03.1997. However, the Approval was given in the Meeting of the Board which was held on 12.02.1997 and the Agenda was circulated to th the Members of the Board on 05 March, 1997 Ex. PW10/C and this shows that the Second Sanction Order was not retrospectively approved by the Board of Directors of ITDC.
48. Accused no.1 Mahesh Chand Aggarwal has failed to extract anything in his favour in the cross examination of PW10. During the examination in chief, PW10 deposed that all the Directors present in the Meeting have unanimously decided after application of mind to grant sanction of Prosecution against accused M. C. Aggarwal.
49. In view of the aforesaid discussion, I hold that the Sanction order Ex. PW10/A is legal and valid.
SANCTION FOR PROSECUTION AGAINST ACCUSED NO.2 SATGUR PRASAD.
50. The evidence on record shows that on 04.03.1997, the 31 of 68 32 Sanction Order was accorded for launching Prosecution under Prevention of Corruption Act against accused no.2 Satgur Prasad by PW8 Satish Chander Chatawal , who in his deposition testified that he was the Competent Authority to remove accused no. 2 Satgur Prasad from the service at the time of granting sanction. PW8 further deposed that he accorded sanction order Ex. PW8/A against accused no. 2 S. P. Nigam after application of his mind. He further deposed that he had gone through the entire record pertaining to the case and then he accorded sanction.
51. On the other hand, ld. Defence Counsel argued that PW8 Satish Chander Chatawal was not the Competent Authority to remove accused no. 2 Satgur Prasad, from his service.
52. PW8 Satish Chander Chatawal in his examination in chief deposed that he was the Competent Authority to remove accused no.2 Satgur Prasad from his service and he had proved his Sanction Order 32 of 68 33 Ex. PW8/A and he also specifically deposed that before according the sanction, he has gone through the entire record pertaining to this case. During his cross examination conducted by ld. Defence Counsel, he further deposed that he was the authority to take disciplinary action including to remove accused no.2 Satgur Prasad from his service. He has also denied the suggestion that he was not Competent Authority to remove the accused no.2 Satgur Prasad from the service being not appointing authority of him and being junior to Managing Director. He has also denied the suggestion given by the ld. Defence Counsel during his cross examination that he had not perused any documents before grant of sanction or that he mechanically accorded sanction without application of mind.
53. Accused no.2 Satgur Prasad has failed to extract anything in his favour in the cross examination of PW8 Satish Chander Chatawal. In the entire evidence of PW8, there is nothing to even remotely 33 of 68 34 suggest that he had not applied his mind before according sanction order Ex. PW8/A against accused no.2 Satgur Prasad.
54. In view of the aforesaid discussion, I hold that the Sanction order Ex. PW8/A is legal and valid.
CONSPIRACY, GRATIFICATION AND CRIMINAL MISCONDUCT
55. Before adverting to the discussion of this case, it would be useful to have a look upon the relevant provisions of law. Charges against accused no.1 Mahesh Chand Aggarwal and accused no.2 Satgur Prasad Nigam were framed for the trial of offences punishable under Section 120B of IPC read with Section 7 and 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988. Substantive charge under Section 13 (2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 was also framed against accused no.1 Mahesh Chand Aggarwal. Substantive Charges under Section 7 and 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 34 of 68 35 1988 were also framed against accused no.2 Satgur Prasad Nigam, which are reproduced as under: Section 120A defines "Criminal Conspiracy", which reads as under: "120A. Definition of criminal conspiracy - When two or more persons agree to do, or cause to be done (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy.
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
56. As per definition of criminal conspiracy U/s 120A of Indian Penal Code when two or more persons agree to do, or cause to be done, (a) an illegal act; or (b) an act, which is not illegal by illegal means, such agreement is designated a criminal conspiracy. The 35 of 68 36 essence of offence of conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration. The gist of offence of conspiracy is an agreement to break the law. In considering the question of criminal conspiracy, it is not always possible to give affirmative evidence about the date of formation of conspiracy, about the persons who took part in the formation of conspiracy, about the object which the conspirators set before themselves as the object of conspiracy and about the manner in which the object of conspiracy was to be carried out. All this necessarily a matter of inference. The essence of criminal conspiracy is an agreement to do an illegal act.
36 of 68 37 Such an agreement can be proved either by direct evidence or by circumstantial evidence or by both. It is not necessary that there should be express proof of the agreement, far from the acts and conduct of the parties, the agreement can be inferred.
57. On the point of criminal conspiracy, it has been held by the Hon'ble Supreme Court in Shiv Narayan Laxmi Narayan Joshi Vs State of Maharashtra, AIR 1980 SC 439, that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from inference drawn from acts or illegal omissions committed by the conspirators in pursuance of a common design.
58. The agreement to conspire may be inferred from circumstances, which raised a presumption of a concerted plan to carry out an unlawful design. A conspiracy need not be established by proof which actually brings the party together; but may be shown like any 37 of 68 38 other fact, by circumstantial evidence.
59. In Kehar Singh and Others Vs State, AIR 1988 SC 1883, it is observed:
"Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on the evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon the circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the Court must require whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the later does. It is however, essential that the offence of conspiracy required some kind of physical manifestation or agreement the express agreement however need not be proved. Nor mutual meetings of the two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient."
"7. Public Servant taking gratification other then legal remuneration in respect of an official act. 38 of 68 39 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 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 then 6 months but which may extend to 5 years and shall also be liable to fine."
"13. Criminal Misconduct by a Public Servant.
(1)A Public servant is said to commit the offence of criminal misconduct;
(a) to (c) ..........
(d) if he,
(i)by corrupt or illegal means, 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 39 of 68 40 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 ***** (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less then one year but which may extend to 7 years and shall also be liable to fine."
60. On bare reading of the above provisions, it is clear that in order to bring home the charge under Section 120B of IPC, the prosecution is required to prove that both the accused persons in criminal conspiracy have demanded or accepted the bribe money from the complainant. A conspiracy need not be established by proof which actually brings the party together, but may be shown like any other fact, by circumstantial evidence.
61. It is also clear that in order to bring home the charge under Section 7 of the PC Act, the Prosecution is required to prove that the accused accepted or obtained or attempted to obtain illegal gratification 40 of 68 41 from any person and in order to establish the guilt of the accused under Section 13(2) read with Section 13 (1) (d) of the PC Act, 1988 also, the Prosecution is required to establish that the accused by corrupt or illegal means or by using his official position, obtained advantage or a valuable thing for himself or for any other person. Thus, it is obvious that two essential components to be proved for bringing home the charge under Section 7 & Section 13 (2) read with Section 13 (1) (d) of the PC Act, 1988, are the demand and acceptance of the bribe. CRIMINAL CONSPIRACY, DEMAND, ACCEPTANCE & RECOVERY
62. The complainant P. S. Krishna appearing before the court has been examined as PW2, who has specifically deposed that on 13.12.1995, he went to ITDC office in connection with expediting the release of his arrears i.e. difference between his salary and subsistence allowance during suspension period. He found that the file was with accused M. C. Aggarwal, Vice President (Legal). He went to the office 41 of 68 42 of accused M. C. Aggarwal, who asked him to see accused S. P. Nigam, GM (IR). Thereafter, he went to the office of accused Nigam, who asked him what would be the accumulation of the arrears. Then, he replied that it could be to the extent of Rs.1.4 lacs. On this, Mr. Nigam asked him to pay 30% of the amount. He further deposed that he said it was not possible and requested him for 20% of the amount which was Rs.30,000/ approximately. Thereafter, he said that he would be able to give only Rs.20,000/ for which he agreed.
63. PW2 P. S. Krishna further deposed that on 15.12.1995, he made a complaint Ex. PW2/B to the CBI. In the afternoon of 15.12.1995, he spoke to accused M. C. Aggarwal and told him that he had a talk with accused Nigam and he (P. S. Krishna) was ready to give the money. This conversation took place when he made a call from the office of SP, CBI, in the presence of PW6 Anil Kumar Sharma, Shadow witness. The conversation was recorded in the cassette in which 42 of 68 43 specimen voice of PW6 Anil Kumar Sharma was recorded.
64. During the examination in chief of PW2, the cassette was played and PW2 has identified his voice as well as the voice of accused Aggarwal. The conversation was as follows: MYSELF : NAMASTE SIR, MAIN KRISHNA BOL RAHA HOON.
OTHER SIDE
MR. AGGARWAL: BOLO JI.
MYSELF : SIR JI WO NIGAM SAAB SE BAAT HO GAYI
HAIN PAISE KE BARE MEIN.
AGGARWAL : NIGAM SAAB KIDHAR HAIN.
MYSELF : WO MIL NAHI RAHE, TELEPHONE UNKA
BAHOT ENGAGE HAIN AUR PARSO UNKO
MAINE BULAYA THA LEKIN SIR WO KUCH
INTEZAM NAHI HO PAYA TO SAAB KO MAINE
AFTERNOON PHONE KIYA TO WO NARAZ
THE TO BOLE. MAIYE THODA DAR RAHA
HOON. SAAB THODA UNKO SAMJHA DIJIYE.
43 of 68
44
65. PW2 P. S. Krishna further deposed that on 18.12.1995 in the office of SP, again a fresh cassette was used in which sample voice of PW6 Anil Sharma was recorded. Thereafter, PW2 spoke to Mr. Nigam on telephone from CBI office, who was in the office of accused M. C. Aggarwal and told him that the money was ready and he could come and collect in the evening from his house. MYSELF : HAIN NAMASTE, MAIN KRISHNA BOL RAHA HOON, AGGARWAL SAHAB.
AGGARWAL : HAIN JI, BOLO, KYA HAAL HAIN.
MYSELF : WO KAHAN HAIN NIGAM.
AGGARWAL : WO IDHAR HI HAIN.
MYSELF : BAAT KARAO, BAHOT DER SE MAIN KARTA
HOON, WO REHTE NAHI HAIN.
OTHER SIDE : HELLO (PW2 HAS IDENTIFIED THE VOICE
HELLO TO BE OF NIGAM)
66. PW6 Anil Kumar Sharma, Shadow Witness, deposed that on 15.12.1995 his Director instructed him to attend CBI Office. He went to CBI Office and met Mr. Peshin. In the CBI Office, one Krishna was also found sitting there. PW6 Anil Kumar Sharma was instructed that in few 44 of 68 45 minutes PW2 Mr. Krishna, the complainant will speak to some one on telephone and he was to hear their conversation. Then PW2 Mr. Krishna spoke to accused M. C. Aggarwal on telephone in his presence and told accused Aggarwal that he had talked to accused S. P. Nigam about his work and as told he has arranged money for payment to accused M. C. Aggarwal, who replied to him that it is alright and he (PW2) should talk to accused S. P. Nigam. This conversation was recorded by the CBI officer and it was played in his presence and found to contain the same conversation which took place between PW2 Krishna and accused M. C. Aggarwal. The said cassette was then sealed by the CBI officer in his presence in a cloth wrapper.
67. PW6 Anil Kumar Sharma further deposed that on 18.12.1995, he was against called by the CBI Officers in their office through his Administrative Officer. A blank cassette played by the CBI officer, was shown to him and then he was asked to spoke his name 45 of 68 46 etc. and recording his name in the said cassette, PW2 Krishna telephoned at the office of accused S. P. Nigam who was not found available there. Then, PW2 telephoned accused M. C. Aggarwal, who told him that accused S. P. Nigam was sitting with him. Then accused Aggarwal handed over the phone to accused S. P. Nigam.
68. PW6 Anil Kumar Sharma further deposed that then PW2 Krishna told accused S. P. Nigam that he has arranged the payment of money. PW6 further deposed that PW2 asked accused S. P. Nigam that S. P. Nigam should come to the house of PW2 that evening to collect money. Then accused Nigam agreed to come to the house of PW2 Krishna and with this the conversation was over. This conversation was also recorded by the CBI Officer and the cassette was played in his presence and thereafter, the same was sealed in a cloth wrapper.
69. PW16 Ms. Virender Kaur, who was working as Stenographer 46 of 68 47 with accused no. 2 S. P. Nigam also identified the voice of accused S. P. Nigam at the time of playing of the cassette during her examination in chief.
70. PW1 Dr. Rajinder Singh, Principal Scientific Officer and HOD Physics, CFSL, New Delhi, has proved the voice identification report Ex. PW1/A. Result of examination is as under: "The auditory analysis of recordings on cassettes Marked A to D marked exhibit A1, B1, C1, C2, D1 and D2 and subsequent spectrographic analysis of common words selected from cassettes marked A to D are similar in respect of their acoustic cues, narrow band characteristics and fundamental frequencies. It is therefore, concluded that voice samples marked A1, C2 & D2 are probable voice of same speaker (Mr. Nigam) and voice samples marked B1, C1 & D1 are probable voice of one speaker (Mr. Aggarwal).
71. PW17 S. B. Motwani has deposed that he has seen the file Ex. PW17/B pertaining to their office and vide noting dated 06.12.1995, accused M. C. Aggarwal has recommended that accused SP Nigam 47 of 68 48 may be posted as General Manager (Estate) and he has also prove the signatures of accused M. C. Aggarwal at point A on the said noting dated 06.12.1995 Ex. PW17/B1.
72. PW9 J. N. Tanwar deposed that on 19.12.1995, he and PW14 Captain D. S. Gosai, Assistant Manager (Vigilance and Security) accompanied the CBI officers in the search of the office of the accused M. C. Aggarwal. During search, one file / folder no. PK(PS)369 containing 163 pages Ex. PW9/B pertaining to disciplinary proceedings against P. S. Krishna, GM, MMD was recovered alongwith the other documents, which were seized vide search Memo Ex. PW9/A. The similar fact was also deposed by PW14 D. S. Gosai, Sr. Manager (Vigilance) as deposed by PW9 J. N. Tanwar.
73. In the testimony of PW2 P. S. Krishna, it has come on record that on 13.12.1995 he went to ITDC office in connection with expediting the release of his arrears i.e. difference between his salary and 48 of 68 49 subsistence allowances during suspension period and he found that the file was with accused M. C. Aggarwal and he went to the office of accused M. C. Aggarwal, who asked him (the complainant) to see accused S. P. Nigam, GM (IR). Thereafter, PW2 the complainant went to the office of accused S. P. Nigam.
74. The testimony of PW2 P. S. Krishna coupled with the fact of recording of the conversation on 15.12.1995 and 18.12.1995 in the presence of PW6 Anil Kumar Sharma, Shadow Witness, shows that there was criminal conspiracy between accused M. C. Aggarwal and accused S. P. Nigam. Moreover, CFSL Report Ex. PW1/A prepared by PW1 Dr. Rajinder Singh also proved the fact that Marked exhibit A1, C2 and D2 are probable voice of same speaker (Mr. Nigam) and voice samples Marked exhibit B1, C1 and D1 are probable voice of one speaker (Mr. Aggarwal).
75. It is also pertinent to note that PW16 Ms. Virender Kaur, who 49 of 68 50 was working as Stenographer with accused S. P. Nigam also identifed the voice of accused S. P. Nigam at the time of playing of the cassette.
76. PW6 Anil Kumar Sharma, Shadow Witness, also corroborated the version of PW2 P. S. Krishna, the complainant. Moreover, PW17 S. B. Motwani also disclosed the close nexus between accused no. 1 M. C. Aggarwal and accused no.2 S. P. Nigam, when accused no.1 M. C. Aggarwal recommended the name of accused no.2 S. P. Nigam to the post of General Manager (Estate) vide his noting dated 06.12.1995 Ex. PW17/B1 on the file Ex. PW17/A pertaining to ITDC Office.
77. Even from the testimony of PW9 J. N. Tanwar and PW14 D. S. Gosai, it is clear during the search conducted on 19.12.1995 in the office room of accused M. C. Aggarwal, one file / folder of disciplinary proceedings against complainant P. S. Krishna was recovered alongwith other documents.
50 of 68 51
78. In view of the aforesaid discussion, I am of the opinion that prosecution has successfully proved that accused Mahesh Chand Aggarwal being a Public servant while working in the capacity of Legal Advisor, ITDC entered into a criminal conspiracy with his coaccused Satgur Prasad Nigam, General Manager(Personnel) ITDC had demanded 20% of the arrears which amounted to Rs.30,000/ from the complainant and on his (complainant) request , accused S. P. Nigam agreed to take Rs.20,000/.
79. PW2 Mr. Krishna deposed that at about 9.00 PM, accused Nigam came to his house and the conversation started between him and accused S. P. Nigam, who said the amount which he (PW2) was giving as bribe was insufficient and accused Aggarwal said that since he i.e. PW2 is known to them, they would accept.
80. PW2 P. S. Krishna further deposed that he gave him the money which accused S. P. Nigam kept in his left side pocket of his 51 of 68 52 coat. Thereafter, he shouted "Shobha". On this, the two officials who were sitting in the bed room behind drawing room came and caught accused S. P. Nigam by his hands. Immediately, the raiding party came inside and the money was recovered by PW12 Om Prakash, recovery witness, from the left side of accused Nigam's coat.
81. PW6 Anil Kumar Sharma, Shadow Witness deposed that at about 9.15 PM on 18.12.1995, accused S. P. Nigam entered the house of PW2 Krishna and sat in the Drawing Room with PW2. The conversation started between them. PW2 Krishna told accused Nigam that he could arrange Rs.12,000/ only but accused Nigam told PW2 Krishna that with this amount his work cannot be done and PW2 Krishna will have to pay Rs.20,000/ if he wanted to get his work done. Then accused Nigam told PW2 Krishna that he will take Rs.12,000/ at that time but the work of Krishna will be done on making full payment of Rs.20,000/. Thereafter, PW2 Krishna took out the tainted money of 52 of 68 53 Rs.12,000/ and handed over the same to accused Nigam in his left hand who kept the same in his left pocket of his coat. Thereafter, he gave preappointed signal by shouting the name of "Shobha" and on his shouting all CBI officers came inside the Drawing Room. On entering the Drawing Room, the CBI Officers caught hold of both hands of accused S. P. Nigam and he (accused S. P. Nigam) was told by the CBI officers that he was caught red handed while accepting bribe. On this accused Nigam became nervous but he kept mum.
82. PW11 TLO/ SP S. K. Peshin deposed that he alongwith DSP Ramnish caught hold of accused Nigam by both of his wrist and after disclosing his identity and that of other trap team members, he challenged accused Nigam having demanded and accepted bribe of Rs.12,000/ from PW2 Krishna. At this, accused Nigam became perplexed and kept mum. PW11 further deposed that after the arrival of the other members, PW12 Om Parkash, Recovery Witness, was 53 of 68 54 directed to take the search of the pockets of the coat worn by accused Nigam, who recovered an amount of Rs.12,000/ from the left lower side of the coat pocket worn by accused Nigam.
83. PW12 Om Parkash, Recovery Witness, deposed that accused Nigam went to the house of PW2 complainant Krishna. PW12 further deposed that he alongwith other trap team members went in the house of complainant Krishna as called by Ms. Shobha. On the directions of CBI officer, he took the search of accused Nigam and took out the treated notes from his left coat pocket of accused Nigam and thereafter, he and PW6 Anil Kumar compared the recovered GC notes from the numbers in the Annexure to Handing Over Memo and found to be the same.
84. PW2 Complainant P. S. Krishna, PW6 Anil Kumar Sharma, Shadow Witness, PW11 TLO/SP S. K. Peshin and PW12 Om Parkash, Recovery Memo have also been cross examined at length on 54 of 68 55 behalf of the accused persons running into several pages, however, nothing such has come out in their cross examination so as to disbelieve the basic substratum / version of the prosecution case.
85. PW2 complainant P. S. Krishna, PW6 Anil Kumar Sharma, Shadow Witness and PW11 TLO/ SP S. K. Peshin have deposed that wash of left hand and the wash of coat pocket of accused no.2 S. P. Nigam were taken in solution of sodium carbonate prepared in water, which turned pink. These witnesses have been cross examined, however, nothing such has come out in their cross examination so as to disbelieve their testimonies.
86. PW4 Sh. K. S. Chabra, retired as Senior Scientific Officer, CFSL, who has chemically examined two sealed bottles marked as Ex. LHW and Ex. CLOPW has stated that after chemical analysis, both the exhibits gave positive tests for Phenolphthalein and sodium carbonate. Thus the presence of Phenolphthalein Powder on the left hand as well 55 of 68 56 as on the coat pocket of the accused no.2 S. P. Nigam has been confirmed vide his report Ex. PW3/A.
87. This witness has been cross examined at length on behalf of the accused no.2 S. P. Nigam, however, nothing such has come out in his cross examination so as to disbelieve his testimony.
88. The importance of Phenolphthalein test was underline by the Hon'ble Supreme Court in Som Parkash Vs State of Delhi, AIR 1974 Supreme Court 989, wherein para 10, it is held as Under: "..........of course, the oral evidence of PWs 1 and 4 by itself, if believed as rightly believed by the High Court, proves the passing of the money to the accused and its production by him when challenged by PW7. The fact is indisputable that the hands, the handkerchief and the inner lining of the trouser pocket of the accused turned violet when dipped in soda ash solution. From this the State counsel argues that on no hypothesis except that the notes emerged from the accused's Pocket or possession can the triple colour change be accounted for. The evidence furnished by inorganic chemistry often outwits the 56 of 68 57 technology of corrupt officials, provided no alternative reasonable possibility is made out. The appellant offers a plausible theory. PW1 kept the notes with him and his hands thus carried the powder. He gave a bottle of cake to the accused and the bottle thus transmitted particles of Phenolphthalein to the latter's hands. He (he accused) wiped his face with the handkerchief and put it into his trouser pocket thus contaminating the lining with the guilty substance. Moreover, the inner lining was dipped by PW7 with his hands which had the powder. Thus, all the three items stand explained, according to him. These recondite possibilities and likely freaks have been rejected by both the courts and we are hardly persuaded into hostility to that finding. It is put meet that science - oriented detection of crime is made a massive programme of police work, for in our technological age nothing more primitive can be conceived of than denying the discoveries of the sciences as aids to crime suppression and nothing cruder can retard forensic efficiency then swearing by traditional oral evidence only thereby discouraging the liberal use of scientific research to prove guilt."
89. In Raghbir Singh Vs State of Punjab, (1976) 1 SCC 145 while discarding the oral and documentary evidence laid on behalf of 57 of 68 58 the prosecution is not such as to inspire confidence in the mind of the Court, the Supreme Court observed in para no.11 as follows: "We may take this opportunity of pointing out that it would be desirable if in cases of this kind where a trap is laid for a public servant, the marked current notes, which are used for the purpose of trap, are treated with Phenolphthalein Powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the court does not have to depend on oral evidence which is something of a dubious character for the purpose of deciding the fate of the public servant."
90. From the above discussion, presence of Phenolphthalein Powder on the left hand and coat pocket of accused no. 2 S. P. Nigam is proved. There is no explanation on behalf of accused no.2 as to how Phenolphthalein Powder has appeared on his left hand and coat pocket.
91. Hon'ble Supreme Court in Roop Singh Vs State of Punjab, AIR 1991 Supreme Court 1125, in this regard, has held as follows: 58 of 68 59 "Prevention of Corruption Act (2 of 1947), S.5 - Offence of accepting bribe - Nothing to doubt testimony of Prosecution witnesses - Defence by accused that he was victim of conspiracy - Not supported by evidence on record - Failure of accused to explain presence of Phenolphthalein Powder on his hand - Held, evidence of prosecution witnesses was sufficient to prove offence against accused - Conviction of accused was proper."
92. From the above discussion, it is also proved that tainted money of Rs.12,000/ was recovered from the coat pocket of accused no.2 S. P. Nigam by PW12 Om Parkash, the recovery witness. This version has also been corroborated by PW2 Complainant P. S. Krishna, PW11 TLO/SP S. K. Peshin. The recovery of the tainted money from the coat pocket of accused no.2 indicates that he had received the illegal gratification knowingly.
93. In a prosecution for the offence of bribery the conduct of accused persons are relevant U/s 8 of Evidence Act. When the accused was challenged regarding acceptance of the bribe amount, he 59 of 68 60 became nervous, perplexed and kept mum. Accused no. 2 S. P. Nigam has not given any explanation regarding the recovery of the tainted money from his coat pocket.
94. From the above discussion, it is again proved that accused no. 2 S. P. Nigam accepted Rs.12,000/ voluntarily and consciously which was recovered from his possession.
95. During the course of arguments, the Ld. Counsel for accused no.2 S. P. Nigam has pointed out the contradictions between the deposition of the Prosecution Witnesses. He submitted that as per PW2 complainant P. S. Krishna, PW11 TLO/SP S. K. Peshin, PW18 Inspector Shobha Dutta, the complainant and the accused no. 2 were sitting on different sofas. Whereas as per the testimony of PW6 Anil Kumar Sharma, both of them were sitting on the same sofa.
96. It has been further submitted that as per PW2 complainant P. S. Krishna, PW11 TLO/SP S. K. Peshin, PW18 Inspector Shobha 60 of 68 61 Dutta, the complainant and the accused no.2 have not consumed alcoholic drink during conversation. Whereas as per the testimony of PW6 Anil Kumar Sharma, both of them have consumed alcoholic drink during their conversation.
97. It has been further pointed out by the ld. Defence counsel for the accused no.2 S. P. Nigam that as per the testimony of PW12 Om Parkash, they all went from the CBI office to the residence of the complainant in one vehicle and it was most probably a jeep. Whereas the other witnesses have deposed that they came to the house of the complainant in two vehicles i.e. one of complainant and one of the CBI.
98. It has been also pointed out by the ld. Defence counsel that as per the testimony of PW12 Om Parkash, the talk between accused S. P. Nigam and the complainant took about 1520 minutes. Whereas as per the testimony of PW11 TLO/SP S. K. Peshin that the conversation between the complainant and accused no.2 took place for 61 of 68 62 2530 minutes.
99. It has been submitted by the ld. Defence counsel that as per the testimony of PW6 Anil Kumar Sharma, Shadow Witness, the PW11 TLO/ Mr. Peshin took out the money of Rs.12,000/ from the coat pocket of accused S. P. Nigam. Whereas as per the testimony of PW2 complainant P. S. Krishna, PW11 TLO/SP S. K. Peshin and PW12 Om Parkash, the tainted money was recovered by PW12 Om Parkash from the coat pocket of accused no. 2 S. P. Nigam.
100. The contradictions pointed out by Ld. Defence Counsel are of minor nature. These contradictions cannot be called material contradictions. Such contradictions are bound to come in the statement of the witnesses because of the passage of time and other reason. Court cannot expect a parrot like repetition of the version by the witnesses.
101. The law regarding contradiction was considered in the case of 62 of 68 63 State of U. P. Vs M. K. Anthony, AIR 1985 SC 48, wherein it was held that despite discrepancies in the statement made in the court by the material witnesses if their testimonies fully inculpate the accused, conviction can be based on such evidence. The observations were made by the Apex Court as under: "While appreciating the evidence of a witness the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities, pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matter not touching the core of the case, hyper technical approach by taking sentence torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of evidence as a whole."
63 of 68 64 Their Lordships further observed, "Unless there are reasons weighty and formidable, it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. even honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention, and reproduction differ with individuals. cross examination is an unequal dual between the rustic (witness) and refined lawyer."
102. In another case of Bharuda Broginbhai Harjibhai Vs State of Gujarat AIR 1983 SC 753, wherein it was held that discrepancies which do not go to the root of the matter and shake the basic version of the prosecution should not be attached undue importance. The reasons given in that judgment for arriving at this conclusion as under: "1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
2) Ordinarily, it so happens that a witness is overtaken by events. The witness could not have 64 of 68 65 anticipated the occurrence which so often has an element of surprise. Thus, mental faculties, therefore, cannot be expected to be attuned to absorb the details.
3) The powers of observance differ from person to person, what one may notice, another may not. An object or movement might emboss image of one person's mind, whereas it might go unnoticed on the part of another.
4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
5) In regard to exact time of an incident or the time duration of an occurrence, usually, people make their estimates by guess work on spur of moment at the time of interrogation and one cannot expect people make very precise or reliable estimates in such matters. Again, it depends upon the timesense of individuals which varies from person to person.
6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time 65 of 68 66 span. A witness is liable to get confused, or mixed up when interrogated later on.
7) A witness though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details of imagination on the spur of moment. The sub conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological moment."
103. In view of the law discussed above, it cannot be said that the contradictions pointed out by learned Counsel for accused no.2 S. P. Nigam are very vital contradictions. These contradictions are likely to occur with the passage of time.
104. In view of the aforesaid discussion, I am of the opinion that the prosecution has succeeded in proving its case beyond reasonable doubts against both the accused persons to bring home their guilt that 66 of 68 67 accused no. 1 M. C. Aggarwal while working as Legal Adviser, (ITDC ) entered into Criminal Conspiracy with his coaccused S. P. Nigam while working as General Manager (Personnel) has demanded 20% of the arrears which amounted to Rs.30,000/ and on the request of the complainant, accused no.2 S. P. Nigam agreed to take Rs.20,000/from the complainant. In furtherance of their criminal conspiracy, accused no. 2 S. P. Nigam has accepted the illegal gratification of Rs.12,000/ from the complainant and thus by corrupt and illegal means they abused their official position as public servant and obtained pecuniary advantage of Rs.12,000/. Hence accused no.1 M. C. Aggarwal and accused no.2 S. P. Nigam are held guilty and convicted for the offences punishable under Section 120B of IPC read with Section 7 and 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988.
105. Accused no.1 M. C. Aggarwal is also held guilty and 67 of 68 68 convicted for the offences punishable under Section Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 and Accused no.2 S. P. Nigam is held guilty and convicted for the offences punishable under Section 7 and 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988. ANNOUNCED IN THE OPEN COURT TODAY I.E. ON 29.09.2012. (N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI.
68 of 68 69 IN THE COURT OF SH. N. K. SHARMA, SPECIAL JUDGE (PC ACT)-02 DELHI.
RC No. 106(A)/95 CC No. 76/01 CBI VS
1.SH. MAHESH CHAND AGGARWAL, LEGAL ADVISOR, I.T.D.C. H. Q. SCOPE COMPLEX, LODHI ROAD, NEW DELHI.
2.SH. SATGUR PRASAD NIGAM, OFFICIATING GM (PERSONAL), I.T.D.C. H/Q. SCOPE COMPLEX, LODHI ROAD, NEW DELHI.
Date of Institution : 11.03.1997.
Date of Arguments : 18.09.2012.
Date of Judgment : 29.09.2012.
Order on Sentence : 08.10. 2012.
ORDER ON SENTENCE:
1. Vide my separate judgment announced on 29.09.2012, 69 of 68 70 accused no.1 M. C. Aggarwal and accused no.2 S. P. Nigam are held guilty and convicted for the offences punishable under Section 120B of IPC read with Section 7 and 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988.
2. Accused no.1 M. C. Aggarwal is also held guilty and convicted for the offences punishable under Section Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988 and Accused no.2 S. P. Nigam is held guilty and convicted for the offences punishable under Section 7 and 13(2) read with Section 13 (1) (d) of Prevention of Corruption Act, 1988.
3. It has been argued by Sh. N. K. Sharma, learned counsel for convict M. C. Aggarwal that he is 72 years of age and is not a previous convict. He has clean antecedents. He is facing agony of this trial since 1997. He is suffering from various ailments and he has to look after his wife, who is also suffering from old age problems. His sons are not residing with him. It is prayed that in these circumstances, lenient view may be taken against him.
4. It has been argued by Sh. M. K. Gupta, learned counsel for convict S. P. Nigam that he is 72 years of age and is not a previous convict. He is facing agony of the trial since 1997. He has clean 70 of 68 71 antecedents. He is suffering from various ailments and he has to look after his wife, who is also suffering from old age problems. It is prayed that in these circumstances, lenient view may be taken against him.
5. It has been argued by the learned PP Sh. J. S. Wadia for CBI that no leniency be shown to the Convicts in awarding the sentence as it will be undesirable and will also be against public interest. He has argued that convicts are involved in a serious corruption case inspite of being public servants. They were working in the ITDC. They should be awarded severe punishment and heavy fine may also be imposed.
6. Taking into consideration, submissions made on behalf of the Convicts and the Prosecution, I am of the view that if following sentences in this case are awarded, it shall serve the ends of justice.
7. Sentences to convict M. C. Aggarwal: Convict is sentenced to undergo R. I. for a period of one year for offence punishable under Section 120B of IPC read with Section 7 & 13 (2) read with Section 13(1)(d) of PC Act, 1988. He is further sentenced to pay a fine of Rs.10,000/(Rs. Ten Thousands Only) and in default of payment of fine, he shall undergo S. I. for a further period of two months.
71 of 68 72 For offence punishable under Section 13(2) read with Section 13(1)(d) of PC Act, 1988, Convict M. C. Aggarwal is sentenced to undergo R. I. for a period of 3 years alongwith a fine of Rs.30,000/(Rs. Thirty Thousands Only) and in default of payment of fine, he shall undergo S. I. for a further period of five months.
8. Sentences to Convict S. P. Nigam : Convict S. P. Nigam is sentenced to undergo R. I. for a period of one year for offence punishable under Section 120B of IPC read with Section 7 & 13 (2) read with Section 13(1)(d) of PC Act, 1988. He is further sentenced to pay a fine of Rs.10,000/(Rs. Ten Thousands Only) and in default of payment of fine, he shall undergo S. I. for a further period of two months.
For offence punishable under Section 7 of PC Act, 1988, Convict S. P. Nigam is sentenced to undergo R. I. for a period of two years alongwith a fine of Rs.20,000/(Rs. Twenty Thousands Only) and in default of payment of fine, he shall undergo S. I. for a further period of three months.
For offence punishable under Section 13(2) read with Section 13(1)(d) of PC Act, 1988, Convict S. P. Nigam is sentenced to undergo R. I. for a period of 3 years alongwith a fine of Rs.30,000/(Rs. Thirty 72 of 68 73 Thousands Only) and in default of payment of fine, he shall undergo S. I. for a further period of five months.
9. It is further directed that all the substantive sentences shall run concurrently. Benefit of Section 428 Cr. P. C. be also given to both the convicts.
10. A copy of Judgment and this order on sentence be given to the convicts free of cost. File be consigned to Record Room.
(N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI/08.10.2012.
73 of 68 74 RC NO. 106(A)/95 CC No. 76/01 CBI VS. MAHESH CHAND AGGARWAL & ANR.
08.10.2012.
File taken up on the applications under Section 389 of Cr. P. C. moved by learned counsel for convict persons for suspension of sentences.
Present: Sh. J. S. Wadia, Ld. PP for CBI.
Convict M. C. Aggarwal and Convict S. P. Nigam are present. Sh. N. K. Sharma, Counsel for Convict M. C. Aggarwal and Sh. M. K. Gupta, learned Counsel for Convict S. P. Nigam have filed applications under Section 389 (3) Cr. P. C. for suspension of Sentence.
Heard. Convict M. C. Aggarwal and Convict S. P. Nigam remained on bail during the trial of this case and they have not misused the liberty of the bail and attended the court on each date of hearing. This fact is also not disputed by the Ld. PP. Convict M. C. Aggarwal and Convict S. P. Nigam are directed to furnish the Bail Bond in the sum of Rs. 30,000/ each with one surety each in the like amount. Bail Bonds with one surety each furnished and the same are accepted upto 07.11.2012.
74 of 68 75 A copy of this order be given dasti to the convict persons. File be consigned to Record Room.
(N. K. SHARMA) SPECIAL JUDGE (PC ACT)(CBI):02 DELHI/08.10.2012.
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