Delhi District Court
Cbi vs . Tarun Kumar Page No. 1 on 9 May, 2018
IN THE COURT OF Mr. ARVIND KUMAR
SPECIAL JUDGE, CBI-01, NEW DELHI DISTRICT
PATIALA HOUSE COURTS, NEW DELHI
In the matter of :-
CC No. : 04/2017
RC NO. : DAI-2016-A-0031
Branch : CBI/ACB/New Delhi
U/S : Section 8 of P C Act, 1988
& Sec. 420 IPC
CBI ..... Complainant
Versus
Tarun Kumar
S/O Sh. Rahitash Kumar
Present Address:-
R/O H.No. N-128, Sector-12
Noida, Uttar Pradesh
Permanent Address:-
House no. 31, Amroha
Green Joya Road
Uttar Pradesh .......Accused
CBI Vs. Tarun Kumar Page No. 1
Date of Institution : 29.03.2017
Date reserved for judgment : 05.05.2018
Date of Judgment : 09.05.2018
Present : Mr. V.K. Ojha, Ld. PP for CBI.
Accused Tarun Kumar with Sh. Vishal Sharma, Ld.
Counsel for accused.
JUDGMENT :-
1. Briefly stating, the case of the prosecution is as under :-
(i) A written complaint dated 18.06.2015 was received from Sh. Rajesh Kumar, Under Secretary, Ministry of Information & Broadcasting, Shastri Bhawn, New Delhi for registration of a case. It is alleged that Sh. A.K.Rastogi, President, All India Avishkar Dish Antena Sangh and Sh. Aman Rastogi informed to Director (BP&L) and Advisor, Digital Addressable System (DAS), Ministry of Information and Broadcasting, that some officials of Ministry of I & B have been demanding money for getting the Multi System Operator (MSO) registration cases approved and for providing the requisite sanction order of registration. Registration of M/s Akash Tori Infocom Services as MSO has already been approved but the sanction order for grant of CBI Vs. Tarun Kumar Page No. 2 MSO license has not been received by the MSO as yet. For making available a copy of sanction order telephone calls are being received from mobile no. 9650521209 in the name of one "Kumar" for transferring money in Allahabad Bank Account No. 20372886222. Sh.
Aman Rastogi showed a SMS from his mobile no. 9911110410, indicating the details of the above said mobile number and Bank account which they received. The details of the bank account were obtained from Allahabad Bank and it came out that the account belong to one Sh. Vimal Kumar Bhatnagar.
(ii) One more complaint from Sh. Gagan Bashambo has been received in the Ministry alleging demand of bribe by Mr. Satya from mobile number 9650521209 for getting DAS license.
(iii) A similar complaint dated 15.08.2014 was received from Sh. Jothishankar Annamalai through BP&L Section of the Ministry. Sh. Annamalai has levelled allegations that he did not get his permanent MSO registration as he did not give bribe to a person (one Mr. Kumar) who called him from mobile number 7042660970 and claimed to be a senior officer of Ministry. Complainant claimed that he again received a similar phone call from someone named Mr. Sathya Narayan from mobile number 8285284918.
CBI Vs. Tarun Kumar Page No. 3(iv) It is alleged that a preliminary enquiry was registered. During the enquiry said person, introducing himself as "Kumar" has been identified as Tarun Kumar, S/O Sh. Rohitash Kumar r/o N-128, Sector-12, Noida (UP).
(v) Thereafter, on the basis of complaint and enquiry report, a regular case was registered U/S 120B r/w 420 IPC and Section 8 & Section 14 r/w 13(2) of P C Act, 1988 against Sh. Tarun Kumar and other unknown public servants/private persons.
(vi) It is alleged that Mr. Kumar, who claimed to be an officer of the Ministry of Information & Broadcasting, had contacted over telephone number to one Sh. K Chandra Shekhara Rao who is the father of Sh. C K Kannaiah, Managing Partner of M/s Tanuku Communications Network from mobile number 9650521209 to his mobile number 9848034789 demanding a bribe amount of Rs.50,000/- for getting his MSO registration done. The said Mr. Kumar also had given him bank account number 20372886222 of Allahabad Bank for transferring the bribe amount.
(vii) That Sh. K Chandra Shekhara Rao, as was demanded a bribe amount of Rs.50,000/- by accused Tarun Kumar had transferred Rs.50,000/- from his account number 299100050300309 maintained in CBI Vs. Tarun Kumar Page No. 4 Tamilnad Mercantile Bank Ltd., Tanuku Branch, Andhra Pradesh vide NEFT/SEE 11622090/V to account no. 20372886222 of Allahabad Bank maintained in the name of Sh. Vimal Kumar Bhatnagar, Vashundhara Branch, Ghaziabad, UP. It has also been revealed that the accused Tarun Kumar has obtained the bank account number 20372886222 from Sh.Vimal Kumar Bhatnagar, who is his childhood friend and given the detail of said bank account to Sh. K.Chandra Shekhara Rao with direction to transfer the said bribe amount of Rs. 50,000/- and accordingly, the said amount was transferred on 23.05.2014. It has also been revealed that the said amount was encashed by Sh. Vimal Kumar Bhatnagar on different dates and had handed over to accused Tarun Kumar.
(viii) The firm M/s Tanuku Communications Network is a family business of communication network and its Managing Partner is Sh.C.K.,Kanniah S/o Sh. K.Chandra.Shekhara Rao. M/s Tanuku Communications Network has applied for MSO registration in the year 2013 and provisional MSO registration was granted on 28.03.2013. However, the provisional MSO registration was cancelled on 31.05.2013 which was conveyed to M/s Tanuku Communications Network by the Director (DAS), Ministry of I & B vide order dated 04.06.2013. It has also been revealed that Sh. K.Chandrashekhara Rao was aware of the affairs of M/s Tanuku Communications Network CBI Vs. Tarun Kumar Page No. 5 and his mobile number was mentioned in the application form. Accused Tarun Kumar got the said mobile number and made a call to Sh. K.Chandrashekhar Rao for making demand of bribe. Accused Tarun Kumar has also assured Sh. K.Chandrashekhar Rao that MSO registration would be got done.
(ix) It is alleged that in the year 2014, the clients of Rajesh Kumar, running business of Consultancy in service sector in the name of M/s Brand Liaison India Pvt. Ltd., Delhi were also contacted by one Mr. Kumar who claimed to be an officer of Ministry of information & Broadcasting. Thus, on his instruction, his clients recorded the conversation and sent the audio clippings to him which he had forwarded to Sh. Yogendra Pal, Advisor,Ministry of Information & Broadcasting. Further, Sh. Rajesh Kumar had met the said Mr. Kumar at office premises of the Ministry of Information & Broadcasting and with the help of Sh. Rajesh Kumar, the said Mr. Kumar had been identified as accused Tarun Kumr S/o Rohitas Kumar r/o N-128, Sector-12, Noida, UP and permanent resident of Amroha, Green Zoya Road, UP.
(x) That M/s Akash Tori Infocom Services Pvt. Ltd., applied for MSO registration vide application dated 13.12.2013 through its Director Sh. Swapnendu Mustafee and Sh. Debabrata Mukherjee. The CBI Vs. Tarun Kumar Page No. 6 permanent registration was issued and conveyed vide letter dated 06.06.2014 by Ms. Sonika Khattar, Under Secretary, Ministry of I & B. However, the accused Tarun Kumar has demanded a bribe amount of Rs.50,000/- for releasing of MSO license. Sh. Aman Rastogi, Distribution Head of M/s Avishkar Media Group and his father Sh. A K Rastogi, President of All India Avishkar Dish Antenna Sangh on having received telephonic complaint from Sh. Swapnendu Mustafee, Director M/s Akash Tori infocom Services Pvt. Ltd. , visited Ministry of I & B and made a verbal complaint to Sh. Yogendra Pal, Advisor, Ministry of I & B on 27.06.2014 against the accused Tarun Kumar who had introduced himself as Mr. Kumar from the said Ministry. However, investigation has revealed that Sh. Swapnendu Mustafee had confirmed to Sh. Aman Rastogi and his father A.K.Rastogi that they had not paid the demanded bribe amount to Mr. Kumar (accused Tarun Kumar).
(xi) That M/s Good Media News Pvt. Ltd. has applied for MSO registration through Sh. Gagan Bashamboo, its CEO vide application dated 03.07.2014 for registration as Multi System Operator (MSO). A complaint had been received in the Ministry from Sh. Gagan Bashamboo alleging demand of bribe by Mr. Satya from mobile number 9650521209 for getting DAS license. However, Sh. Rajesh Kumar Jain who had worked under him had intimated to CBI vide his letter CBI Vs. Tarun Kumar Page No. 7 dated 24.01.2017 that he had not paid any amount to the caller from mobile number 9650521209, who had demanded bribe from him for getting DAS license.
(xii) It is alleged that the SIM card of mobile number 9650521209 was got issued in the name of Sh. Mahipal Singh S/o Sh. Fate Singh r/o D-8/318/C, Gali No. 8, D Block, Dayalpur, Delhi-94 and the alternative number given in CAF was 9136365212 which belongs to one Mukesh Kumar s/o Sh. Jamna Das, Bagichi Tejpal, Pantoon Pull, Matiamahal, New Delhi. However, investigation has revealed that Sh. Mukesh Kumar is found to be resident of House No. 213, Khora Colony, Ghaziabad, UP and he is running a motor repairing workshop at C-31, Sector-12, Noida, UP. It has also been revealed that Sh. Mahipal Singh is not known to Sh. Mukesh Kumar and is not residing at the address given in the CAF.
(xiii) That Sh. Jothishankar Annamalai has applied for MSO registration on 15.05.2012 and provisional registration was issued to him on 22.06.2012. However, the same was cancelled on 30.06.2014 as he could not furnish the status of operationalization and the details sought by the Ministry. Sh. Jothishankar Annamalai had made a complaint on 15.08.2014 to Sh. Prakash Javadekar, Hon'ble Minister for Information & Broadcasting alleging that in May 2014, a call was CBI Vs. Tarun Kumar Page No. 8 received from one Mr. Kumar from mobile number 7042660970 claiming himself to be a senior officer of the Ministry demanding Rs. 2 lacs in cash to be delivered at Delhi and again in the first week of July 2014, he received another call from one Mr. Satya Narayana from mobile number 8285284918 demanding Rs. 3 lacs to be delivered to him at Delhi. In his complaint, he has stated that after receiving the aforesaid calls from one Mr. Kumar and Sh. Satya Naryana, he received an order dated 11.07.2014 cancelling the provisional registration dated 22.06.2012 which he alleged was due to non- payment of the demanded bribe money.
(xiv) The mobile number 7042660970 was obtained in the name of one Sh. Avinash Kumar Maurya r/o C-22, Sector-12, Noida, UP. However, investigation has revealed that the ID proof i.e. copy of Aadhar Card of Sh. Avinash Kumar Maurya has been used by some unknown person to obtain the SIM card of the said mobile number in his name as the photograph appearing on the Customer Application Form happens to be of a different person and the signatures are not his own signatures. The mobile number 8285284918 was obtained using the copy of Aadhar card of Suresh Kumar was found to have a photograph of a different person on the Customer Application Form as was in the case of the Customer Application Form of mobile number 7042660970. During investigation it has been revealed that the CBI Vs. Tarun Kumar Page No. 9 provisional registration was cancelled on 30.06.2014 under the approval of Secretary, Ministry of Information & Broadcasting on the grounds that despite repeated show cause notices Sh. Jothishankar Annamalai could not furnish the status of operationalization and the details sought by the Ministry.
(xv) That vide letter dated 01.07.2015, Sh. Vineet Bhagat, Managing Associate, Advocate-on-Record, Supreme Court of India has also complained to Secretary, Ministry of I & B alleging that on or around 25.06.2015, an unknown employee of the Ministry named "Kumar" called one of his clients i.e. Sh. Dhananjoy Kishore Chakravarty, Director of M/s Desh Entertainment Pvt. Ltd., asking him to pay a bribe of Rs.25,000/- for quickly processing the issue of DAS license to him. The said call was received from mobile number 9650521209 and an SMS giving account number for depositing the bribe money was received from mobile number 7042660970 and the details of the account received in the SMS are "Sandeep Arora, State Bank of India, Sector-123, Noida, Account No. 33981800596. However, no payment has been made by the Director of M/s Desh Entertainment Pvt. Ltd.
(xvi) Sh. Sandeep Arora whose bank account number was provided by the accused Tarun Kumar to the Director of M/s Desh CBI Vs. Tarun Kumar Page No. 10 Entertainment Pvt. Ltd., was running a shop of providing mobile SIM card at C-31/11, Sector-12, Noida, UP till the year 2015 and was known to the accused Tarun Kumar since the year 2004. He had also given his account number IFSC Code and ATM Card to the accused Tarun Kumar as some amount meant for accused Tarun Kumar had been transferred to his account. The accused Tarun Kumar had also obtained SIM Card from his shop on many occasions which he, however, could not remember the mobile numbers and in whose name the accused Tarun Kumar had obtained.
(xvii) It is alleged that accused Tarun Kumar masquerading himself as an official of Ministry of Information & Broadcasting has demanded and accepted bribe money from Sh. K. Chandra Shekhara Rao of M/s Tanuku Communication Network assuring him to get done their MSO registration from official of Ministry of Information & Broadcasting, Government of India by corrupt or illegal means. He has also cheated Sh. K. Chandra Shekhara Rao and dishonestly got delivered Rs.50,000/- in bank account number 20372886222 of Allahabad Bank, Vasundhara, Ghaziabd, UP who had applied for MSO registration and thereby has cheated them.
(xviii) It is alleged that the above facts disclose commission of offence punishable U/S 8 of P C Act, 1988 and Section 420 IPC on the CBI Vs. Tarun Kumar Page No. 11 part of accused Tarun Kumar. The sanction for prosecution of accused Tarun Kumar is not required as he is a private person.
2. After completing investigation, charge-sheet was filed against accused Tarun Kumar for the offence punishable under Section 8 of Prevention of Corruption Act, 1988 r/w 420 IPC.
3. Vide order dated 11.08.2017, this Court has held that prima facie case under Section 8 of Prevention of Corruption Act, 1988 and Section 420 of IPC is made out against accused Tarun Kumar.
4. On 31.08.2017, formal charge was framed against the accused, wherein, he pleaded not guilty and claimed trial.
5. In order to bring home the guilt of the accused, prosecution has examined as many as following 28 witnesses :-
PW-1 Mr. Vimal Bhatnagar. He is the friend of accused Tarun Kumar. He deposed regarding deposit of Rs.50,000/- in his account transferred from the account of CBI Vs. Tarun Kumar Page No. 12 K. Chandrashekhar Rao.
PW-2 Sh. Yogender Pal, an official in the Ministry of Information & Broadcasting. He deposed that he received whatsapp messages from Rajesh Kumar, Director, M/s Brand Laison Pvt. Ltd. regarding demand of bribe by accused.
PW-3 Sh. Rajesh Kumar, Director M/s Brand Laison India Pvt. Ltd. He deposed that accused demanded bribe from his clients and he forwarded whatsapp messages received by him from his clients, to Sh. Yogender Pal.
PW-4 Sh. Vinay Singh, Credit Manager, Allahabad Bank, Vasundara, Ghaziabad,U.P. He deposed about statement of account of Vimal Bhatnagar and seizure memo dated 24.03.2017 vide which he handed over the aforesaid documents to CBI.
PW-5 Mr. Sakthi Ganesh K, Branch Head, Tamilnad CBI Vs. Tarun Kumar Page No. 13 Mercantile Bank Ltd at 16/12 WEA Ground Floor, Arya Samaj Road, Karol Bagh, New Delhi. He deposed about statement of account of Mr. K.Chandershekhar Rao.
PW-6 Mr. Sandeep Arora deposed that he knows Tarun Kumar and he had given his ATM Card and Bank account number to Tarun Kumar.
PW-7 Mr. Kuldeep Singh, Inspector CBI. He conducted preliminary enquiry and prepared transcription.
PW-8 Mr. Vineet Bhagat, an Advocate. He deposed that he had made a complaint dated 01.07.2015 to Ministry of Information & Broadcasting stating that one Mr. Kumar was demanding bribe from his client Sh.
Dhananjay Kishore Chakraborty. He exhibited the said complaint as Ex. PW8/A. PW-9 Mr. Mukesh Kumar, Nodal Officer. He CBI Vs. Tarun Kumar Page No. 14 deposed that mobile number 9650521209 does not belong to him.
PW-10 Mr. Surender Kumar, Nodal Officer, M/s Bharti Airtel Pvt. Ltd. He deposed about CDR of mobile number 7042660970.
PW-11 Mr. Shankar Lal, Deputy Secretary Digitization ( DAS), Ministry of Information & Broadcasting. He deposed about the whatsapp messages sent by accused to different DAS applicants.
PW-12 Mr. Avinash Kumar Maurya, Software Engineer. He deposed that the mobile number 7042660970 did not belong to him.
PW-13 Mr. Pawan Singh, Nodal Officer, Idea Cellular Ltd. He deposed that his company did not have CDR of mobile number 9848034789.
PW-14 Sh. Aman Rastogi, Member of All India CBI Vs. Tarun Kumar Page No. 15 Avishkar Dish Antenna Sangathan. He stated that several members of All India Avishkar Dish Antenna Sangathan reported regarding demand of bribe by one Mr. Kumar, however, complaint was made only by Mr. Swapanendu Mustafee.
PW-15 Mr. Nadeem Ahmad, Section Officer, Ministry of Information & Broadcasting. He deposed about processing of application of M/s Tanuku Communication Network for grant of DAS license.
PW-16 Mr. Navil Kapoor, Under Secretary, Ministry of Labour and Employment. He deposed about processing of application of M/s Tanuku Communication Network for grant of DAS license.
PW-17 Mr. Rajesh Kumar, Under Secretary, Ministry of Information & Broadcasting. He deposed about two complaints received by Ministry of Information & Broadcasting regarding CBI Vs. Tarun Kumar Page No. 16 demand of bribe by Mr. Kumar for grant of MSO registration.
PW-18 Mr. Mukesh Sharma, TV Journalist stated that he knows Tarun Kumar and stated to have delivered a parcel given by Tarun Kumar to Mr. Anil Kumar of Ministry of Information & Broadcasting.
PW-19 Mr. Sathya Narayan, Section Officer in Ministry of Information & Broadcasting.
He stated about processing of application for MSO registration.
PW-20 Sh. Surender Kumar, Section Officer in Ministry of Information & Broadcasting.
He stated about processing of application for MSO registration.
PW-21 Smt. Sonia Khattar, Under Secretary in Ministry of Information & Broadcasting.
She stated about processing of application for MSO registration.
CBI Vs. Tarun Kumar Page No. 17PW-22 Mr. J.S. Asthana, Section Officer in Ministry of Information & Broadcasting.
He stated about processing of application for MSO registration.
PW-23 Insp. Raman Kumar Shukla, IO of the case.
He conducted part investigation in the present case.
PW-24 Mr. Dhanajay Kishore Chakraborty, Director of M/s. Desh Entertainment Pvt. Ltd. He deposed that some person from Ministry of Information & Broadcasting was demanding bribe from him.
PW-25 DSP P. Sadang. ACB, CBI, IO of the case.
PW-26 Mr. Swapnendu Mustafee is Director of M/s Akash Tori Infocom Services Pvt. Ltd. He deposed that some person namely Kumar was demanding bribe for getting MSO registration.
CBI Vs. Tarun Kumar Page No. 18 PW-27 Mr. M. Venkatesulu Shetty, Tamilnad
Mercantile Bank. He exhibited account
opening form as Ex.PW-27/A.
PW-28 Mr. Kesiraju Chandra Sekhara Rao exhibited
statement under Section 161 Cr. P.C as
Ex. PW-28/A.
6. After completion of the prosecution evidence, statement of accused was recorded U/S 313 CrPC. Accused denied to have demanded any bribe from any of the MSO registration applicants. The accused, however, stated that Vimal Kumar Bhatnagar was his friend and Rs.50,000/- were transferred to his account. Accused Tarun Kumar further stated that K. Chandershekhar Rao had talked to him in connection with applying MSO license and he told him the documents which were required for applying for MSO license and he talked to K. Chandershekhar Rao about 5-6 times and the fees was settled as Rs.50,000/- and the said amount was transferred in the bank account of his friend Vimal Kumar Bhatnagar whose account number he had given as he had to return the amount of Rs.60,000/- which he had borrowed from Vimal Kumar Bhatnagar. Accused did not lead any defence evidence.
CBI Vs. Tarun Kumar Page No. 197. I have heard Ld. Counsel for the accused as well as Ld. Counsel for the CBI.
CONTENTIONS OF LD COUNSEL FOR CBI
8. Ld. Counsel for CBI submits that accused had impersonated as one Mr. Kumar of Ministry of Information & Broadcasting to various applicants of Multi System Operation Registration and demanded bribe for expediting Multi System Operation Registration. It is further submitted by Ld. Counsel for CBI that accused had contacted one Mr. K. Chander Shekhar Rao, father of Sh. C.K.Kannayya, Managing Partner of M/s Tanuku Communication Network and demanded sum of Rs. 50,000/- for getting his MSO registration done and has also provided bank account number 20372886222 of Allahabad Bank to Sh. K. Chander Shekhar Rao for transferring bribe money and the bribe money was transferred by Sh. K. Chander Shekhar Rao in the account of Sh. Vimal Bhatnagar who was friend of accused and subsequently Sh. Vimal Bhatnagar had paid the said bribe money to accused.
9. It is further submitted that accused had been identified by CBI Vs. Tarun Kumar Page No. 20 one Sh. Rajesh Kumar and the conversation as placed on record by CBI clearly shows that accused had committed an offence U/S 8 of Prevention of Corruption Act besides cheating number of MSO registration.
10. Ld. Counsel for CBI contended that accused had demanded bribe for expediting the MSO registration from number of applicants and number of witnesses has clearly deposed the fact of demand of bribe by one Mr. Kumar and it has been established by prosecution that accused was contacting different MSO registration applicant, impersonating as Mr. Kumar of Ministry of Information and Broadcasting and demanded bribe for expediting the process of MSO registration.
11. Ld. Counsel for the CBI has relied upon judgments of Hon'ble Supreme Court in Iqbal Moosa Patel Vs. State of Gujarat, (2011) 2 Supreme Court Cases 198; Paulmeli & Another Vs. State of Tamil Nadu Tr. Insp. Of Police, 2014 Crl.L.J. 3240 and Mahavir Singh Vs. State of Haryana, 2014 Crl.L.J. 3228.
CONTENTIONS OF LD COUNSEL FOR ACCUSED
12. On the other hand, Ld. Counsel for accused contended CBI Vs. Tarun Kumar Page No. 21 that accused is running a cyber cafe shop in Sector-12, Noida and beside this work he was also giving services to the MSO registration applicants and he has been implicated by his competitors in false case because of business rivalry.
13. Ld. Counsel for accused further contended that prosecution has utterly failed in proving their case as the prosecution is relying upon the alleged CD containing whatsapp messages allegedly sent by accused to different MSO registration applicants but in fact the CBI has neither seized any mobile phone through which the said whatsapp messages were generated or on which mobile the said whatsapp messages were received or transferred. It is submitted that the authenticity of CD is doubtful as the same has not been sent to CFSL for examination nor was kept in sealed cover at any point of time and same is a result of fabrication of evidence on the part of CBI officials in connivance with some other persons.
14. Ld. Counsel for accused submits that even otherwise the prosecution has failed to establish as to who was Mr. Kumar from Ministry of Information & Broadcasting who was calling on the mobile phone of different MSO registration applicants. It is further alleged that accused Tarun Kumar is not working with Ministry of Information & CBI Vs. Tarun Kumar Page No. 22 Broadcasting and further he has not been identified by PW 3 Rajesh Kumar who had alleged to have seen Mr. Kumar for the first time in Court and it is only during cross-examination that he stated that there is little resemblance between the accused and the person he had caught outside the Ministry Gate.
15. It is further contended that Mr. K.Chandershekhar Rao who has transferred Rs.50,000/- to the account of Mr. Vimal Bhatnagar, has clearly denied that he had paid the said sum as bribe for getting services of accused Tarun Kumar for expediting MSO registration.
16. Ld. Counsel for accused also submitted that PW-24 Dhanajay Kishore Chakraborty, Director, M/s Desh Entertainment Pvt. Ltd. has clearly stated that he did not remember the mobile number of caller nor the caller disclosed his name while the other witness i.e. Advocate Vineet Bhagat, PW-8 had stated that he was told by PW-24, Dhananjay Kishore Chakraborty that one Mr. Kumar was calling PW-24 and there is serious discrepancy in the testimonies of these witnesses.
POINTS FOR DETERMINATION
17. The prosecution has alleged following incidents when accused impersonated and demanded bribe.
CBI Vs. Tarun Kumar Page No. 23(I) The accused impersonated himself as Mr. Kumar, working as Officer of Ministry of Information & Broadcasting and demanded bribe of Rs.50,000/- from K.Chander Shekhar Rao, father of Sh. C.K.Kannayya who was Managing Partner of M/s Tanuku Communication Network for getting their MSO registration done and on 23.05.2014 the said amount was transferred by K.Chandershekhar Rao in the account of Sh. Vimal Bhatnagar who was the friend of accused and Vimal Bhatnagar has withdrawn the amount and handed over to accused. An application for MSO registration of M/s Tanuku Communication Network was then pending before the Ministry of Information & Broadcasting.
(ii) As per prosecution accused Tarun Kumar had contacted different clients of Mr. Rajesh Kumar of M/s Brand Laison Pvt. Ltd. and impersonated himself as Mr. Kumar from Ministry of Information & Broadcasting and demanded bribe for getting MSO registration.
(iii) The accused Tarun Kumar impersonated himself as Mr. Kumar from Ministry of Information & Broadcasting and demanded bribe of Rs.50,000/- from Sh. Swapanendu Mustafee, Director of M/s Aakash Tori Pvt. Ltd.
CBI Vs. Tarun Kumar Page No. 24(iv) The accused Tarun Kumar fraudulently contacted Rajesh Kumar, employee of M/s Gagan Bashmbhoo and demanded bribe for getting DAS license impersonating himself as Mr. Satya Narayan from mobile no. 9650521209, an official of Ministry of Information & Broadcasting. The accused also impersonated himself as Mr. Kumar, a senior official of Ministry of Information & Broadcasting and demanded Rs. 2 Lac for getting license from Jyothi Shankar Anamalai using mobile number 7042660970 and second time he impersonated himself as Satya Narayan using mobile number 8285284918.
(v) The accused demanded Rs.25,000/- from Mr. Dhananjoy Kumar Chakraborty, Director M/s Desh Entertainment Pvt. Ltd. impersonating himself as Mr. Kumar, a senior official of Ministry of Information & Broadcasting. The said demand was made using mobile number 9650521209 & 7042660970.
18. Before proceeding further, I consider it apt to discuss the relevant provisions of law.
19. Section 8 of the Prevention of Corruption Act pertains to taking illegal gratification by complainant as illegal means, to influence public servant. In order to establish the offence under this Section it must be proved:
CBI Vs. Tarun Kumar Page No. 25(1) that the accused accepted or obtained, or agreed to accept, or attempted to obtain , from someone. (2) For himself or for some other person.
(3) Any gratification whatever.
(4) As a motive or reward for inducing by corrupt or
illegal means any public servant to do or forbear to do any official act or to show favour or render any service to any of the person specified in the section.
20. Thus, it is clear from bare reading of provisions of Section 8 of P.C. Act that accused should have had the intention, at the time when he receives gratification. It is not necessary that the person who received the gratification should have succeeded in inducing the public servant. It is not even necessary, that the recipient of the gratification should, in fact, have attempted to induce the public servant. The receipt of gratification as a motive or reward for the purpose of inducing the public servant by corrupt or illegal means will complete the offence. But it is necessary that the accused should have had the animus or intent, at the time when he receives gratification that it is received as a motive or reward for inducing gathered or inferred from evidence in each case.
21. It will be beneficial to have a glance of the ingredients of CBI Vs. Tarun Kumar Page No. 26 the ofence of cheating as defined in Section 415 IPC, which are as follows:-
1. Deception of any person.
2. (a) Fraudulently or dishonestly inducing that person:
(I) to deliver any property to any person or
(ii) to consent that any person shall retain any property, or
(b) Intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. However, when in pursuance of deception so exercised, any property is delivered, the said act of cheating becomes punishable U/S 420 IPC"
22. The offence of cheating is made of two ingredients. Deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person or to consent that any CBI Vs. Tarun Kumar Page No. 27 person shall retain any property. The word "dishonestly" as defined in Section 24 of the IPC implies a deliberate intention to cause wrongful gain or wrongful loss and when this is coupled with deception and consequent of delivery of property, the offence of cheating as defined under Section 415 of IPC is completed.
FIRST INCIDENT
23. The first question to be decided is as to whether accused misrepresented himself as "Mr. Kumar" of Ministry of Information & Broadcasting had demanded and taken illegal gratification from K.Chander Shekhar Rao to influence the higher officials of the Ministry of Information & Broadcasting for grant of MSO registration to M/s Tanuku Communication Network of which Sh. C.K. Kannihaya was the Managing Director.
24. The testimonies of PW-1 Vimal Bhatnagar, PW-4 Vinay Singh, PW-5 Sakthi Ganesh K, PW-7 Inspector Kuldeep Singh, PW-15 Nadeem Ahmad, PW- 23 Insp. Raman Kumar, PW-25 DSP P Shadang, PW-27 M.Venkatesulu Setty and PW-28 Sh. K. Chandershekhar Rao are relevant for deciding the aforesaid point.
RELEVANT TESTIMONIES CBI Vs. Tarun Kumar Page No. 28
25. PW-1, Vimal Bhatnagar deposed that he knew Tarun Kumar for 20-21 years and he had visiting relations with his family and Tarun Kumar is his friend. PW 1 stated that Tarun Kumar runs a Cyber Cafe at Sector-12, Noida since 2004. PW 1 stated that he had opened a bank account in Allahabad Bank at Sector-15, Vasundhara and his account number was 20372886222 which was a joint account along with his wife Ms. Nidhi Bhatnagar and the original account number was given as 11256 but later on it was changed as account number 20372886222. PW 1 exhibited the account opening form as Ex.PW1/A and the documents annexed with the account opening form as Ex. PW1/B. PW 1 stated that he had given Rs.60,000/- to Tarun Kumar, 3-4 months before the date of giving his account number to him and he had given his account number 20372886222 to Tarun Kumar in the year 2014 and when he asked Tarun Kumar to return the aforesaid amount, he asked his account details to transfer the amount to PW1's account and Tarun Kumar transferred Rs.50,000/- in his account but he did not remember how the money was transferred to his account. PW1 had stated that after 23.05.2014 he had money transactions with accused Tarun Kumar number of times and he had lent money to Tarun Kumar and sometimes he also borrowed money from him and all these transactions had taken place in cash.
CBI Vs. Tarun Kumar Page No. 2926. During cross-examination by Ld. PP, PW-1 stated that the incident of lending money of Rs.60,000/- to Tarun Kumar before 23.05.2016 was not mentioned in his statement dated 19.12.2016, Ex. PW1/C. PW 1 also stated that Rs. 50,000/- deposited in his account was not tainted money and it was the part payment against the amount of Rs.60,000/- given by him to Tarun Kumar.
27. PW-1, during further cross-examination by Ld. Counsel for accused stated that he had received balance Rs.10,000/- cash from Tarun Kumar in two parts of Rs.5000/- each.
28. PW-4, Sh. Vinay Singh, Credit Manager, Allahabad Bank, Vasundhara, Ghaziabad, UP proved the certificate under Bankers Book of Evidence Act and statement of account of Vimal Bhatnagar as Ex. PW 4/A and seizure memo dated 24.03.2017 vide which the aforesaid documents were seized by CBI as Ex. PW4/B. PW 4 stated that in the statement of account no. 20372886222, there is transfer entry dated 23.05.2014 of Rs.50,000/- which was transferred by Sh. Chandrashekhar Rao K.
29. PW-5, Sh. Sakthi Ganesh K, Branch Head in Tamilnad Mercantile Bank Ltd. proved the copy of statement of account of K. chandershekhar Rao, Ex. PW5/B. CBI Vs. Tarun Kumar Page No. 30
30. PW-7, Inspector Kuldeep Singh deposed that there was a secret complaint under inquiry which was being conducted by SI Manoj Tripathi and thereafter he conducted inquiry on the said complaint lodged by Sh. Rajesh Kumar, Under Secretary to the Government of India and there was also an envelope addressed to the Director, CBI bearing reference no. C-13019/3/2014-Vigilance which was sealed by a tape and contained a CD containing audio clips regarding conversation between two persons regarding MSO license. PW7 stated that he called the CDRs of the mobile connection numbers which were reflecting in complaint and requisitioned KYC documents of one bank account number from Allahabad Bank, Vasundhara in the name of Vimal Bhatnagar and recommended to register a preliminary inquiry. PW7 exhibited the verification report as Ex. PW7/C.
31. PW7 stated that suspect was in the name of Mr.Kumar only, in the complaint and there was need to identify Mr.Kumar. There was mobile number through which he used to talk to the applicants and he requisitioned call detail records of that mobile no. He scrutinized the call details record and then contacted one Sh.Firasat from Muradabad, UP and on inquiry he came to know that person who used to call from that number as Mr. Kumar was friend of Mukesh Sharma. PW7 called Mukesh Sharma in CBI office and inquired him and recorded his CBI Vs. Tarun Kumar Page No. 31 statement and Mukesh Sharma disclosed that the name of his friend was Tarun Kumar. The complainant Rajesh Kumar who had sent whatsapp messages to the Ministry regarding demand of bribe by Mr. Kumar disclosed that he caught Mr. Tarun Kumar in the Ministry of Information & Broadcasting and he can identify Tarun Kumar. Rajesh Kumar also disclosed that the person whom he caught was also demanding bribe from his clients. Another person Anurag Talukdar who was in regular touch with suspect stated that he can identify Mr. Kumar. PW7 received a phone call from Mukesh Sharma who informed that he was at Jantar Mantar with Tarun Kumar. PW7 along with Anurag Talukdar went to Jantar Mantar where Mukesh Sharma was with Tarun Kumar and Anurag Talukdar identified Tarun Kumar from a safe distance and thereafter PW7 went at the address told by Mukesh Sharma and met Tarun Kumar and Tarun Kumar admitted that he is the person who is the friend of Mukesh Sharma and used to call MSO applicants as Mr. Kumar. Thereafter PW 7 contacted Sh. Rajesh Kumar who met him at Sector 15, Noida Metro Station and PW 7 confronted Tarun Kumar with Rajesh Kumar who identified Tarun Kumar as Mr. Kumar. PW7 along with Tarun Kumar reached in CBI office in CBI vehicle. Thereafter, he conducted discrete inquiry and was satisfied that Mr. Kumar was Tarun Kumar and submitted his report. PW7 exhibited the FIR as Ex. PW7/D and he transcription prepared by him is Ex. PW7/E. PW-7 also identified the CBI Vs. Tarun Kumar Page No. 32 CD and same is Ex. PW7/F and the transcript is Ex. PW-7/E prepared by him from CD. During cross-examination PW 7 stated that he had received CD from SI Manoj Tripathi in an open envelope and he had prepared the transcription of the recorded conversation in the CD at CBI office.
32. PW-15, Nadeem Ahmad, Section Officer in Broadcasting Policy and Legislation Section in Ministry of I&B detailed about the procedure for grant of DAS License and he exhibited the file titled "
Application for grant of MSO Registration Permission, M/s Tanuku Communication Network' as Ex. PW-15/A and application made by M/s Tanuku Communication Network for MSO Registration as Ex. PW15/C. He has proved different notes in the office file regarding processing of aforesaid application for grant of MSO License and noting of Sh. Navil Kapoor, Under Secretary, Ministry of I&B whereby he directed to deposit the cheque and to issue the certificate. PW 15 stated that he had written a note dated 09.05.2013 proposing issuance of Show Cause Notice to M/s Tanku Communication Network as they had not started operating the cable network services for which the MSO Registration was given to them. The said notice was replied by the said Company vide replies dated 21.05.2013 and 27.05.2013 as Ex.PW 15/K and Ex. PW 15/L. Thereafter proposal was made for cancellation of MSO Registration of M/s Tanku Communication CBI Vs. Tarun Kumar Page No. 33 Network as they did not fulfill the necessary conditions. PW 15 proved the note dated 31.05.2013 as Ex. PW 15/N. The said proposal was approved and order was passed.
33. PW-23, Inspector Raman Kumar stated that during investigation it was revealed that Rs.50,000/- were transferred to the account of Sh. Vimal Kumar Bhatnagar vide NEFT which was reflecting in statement of account, Ex. PW 5/B and he contacted Sh. K. Chander Shekhar Rao telephonically and Sh. K. Chander Shekhar Rao informed that this amount was for Tarun Kumar as Tarun Kumar had demanded Rs. 50,000/- from him for doing his work in Ministry of Information & Broadcasting and therefore, he had also examined Vimal Kumar Bhatnagar and recorded his statement U/s 161 CrPC, Ex. PW 1/C.
34. PW-25, DSP P.Shadang, IO deposed that in his investigation he concluded that accused Tarun Kumar had demanded Rs.50,000/- from Sh. K.Chander Shekhar Rao of M/s Tanuku Communication Network for getting their MSO registration done and the said amount was transferred on 23.05.2014 from his account maintained in Tamilnad Mercantile Bank Ltd. to the account number given to him which is maintained in Allahabad Bank, Vasundhara Branch, Ghaziabad.
CBI Vs. Tarun Kumar Page No. 3435. PW-27, M. Venkatesulu Setty is Branch Head of Tanuku Branch of Tamilnad Mercantile Bank Ltd. , Andhra Pradesh and stated that along with his letter dated 22.12.2016, Ex. PW 5/A, he enclosed documents i.e account opening form, Ex. PW27/A and statement of account of Chandershekhar Rao, Ex. PW5/B to CBI.
36. PW-28 Chandershekhar Rao deposed that in the year 2014 he wanted to do cable business in the Housing Board Area for that he needed DAS registration. PW-28 stated that person named K.Sharma gave him the mobile number of Tarun Kumar. PW 28 stated that he did not know about M/s Tanuku Communication Net Work or Mr. C.K.Kannayya and he did not apply for DAS registration in the Ministry of Information & Broadcasting. PW 28 stated that he called Tarun Kumar and he had given the account number of Vimal Kumar. PW-28 stated that he had transferred Rs.50,000/- through NEFT from his Tamilnad Mercantile Bank Ltd. Account no. 299100050300309 and he called Tarun Kumar as he wanted to get his License. PW-28 deposed that Mr. Sharma had told him that for getting DAS License, he would have to contact Mr. Tarun Kumar. PW 28 stated that he did not remember the mobile number of Tarun Kumar. He further stated that he had met with an accident and suffered head injury and his memory is affected in the said accident.
CBI Vs. Tarun Kumar Page No. 3537. PW-28 was cross-examined by Ld. PP for CBI. PW 28 stated that he did not state to the IO the Portion A to A , B to B and C to C of his statement U/s 161 CrPC, Ex. PW 28/A. PW 28 denied that M/s Tanuku Communication Net Work was his family business and Sh. C. K. Kannayya is the Managing Partner of the firm. PW 28 stated that name of his son is Kesiraju Saipramodh and his nick name is Kannayya. PW-28 further stated that he did not know who was having mobile number 9848034789 and it did not belong to him and the mobile no. 9650521209 pertained to Tarun Kumar on which he had made call.
38. PW-28 denied that he had stated to IO DSP P.Sadang that original MSO registration was granted on 28.03.2013 and same was cancelled on 04.06.2013 and the telephone call from Mr. Kumar was received after lapse of one year and that the amount of Rs.50,000/- was transferred to account number given by him as he had assured that MSO registration would be got done. PW-28 denied the suggestion that M/s Tanuku Communication Network was his family concern or that he had applied for DAS License in the Ministry of Information & Broadcasting and that PW-28 had paid Rs.50,000/- to Tarun Kumar as bribe to get license.
ANALYSIS CBI Vs. Tarun Kumar Page No. 36
39. The case of the prosecution is that PW-28 K.Chandershekhar Rao's son C. K. Kannayya, Managing Partner of M/s Tanuku Communication Network has applied for DAS registration. PW-28 has paid an amount of Rs.50,000/- as bribe to accused Tarun Kumar for getting the MSO registration done. On the other hand, accused had taken the defence that the said amount was paid by K.Chandershekhar Rao towards the consultation which he has given to K.Chandershekhar Rao.
40. It is evident from the testimonies of aforesaid PWs that a sum of Rs.50,000/- was transferred by Sh. K. Chandershekhar Rao through NEFT from his account no. 299100050300309 at Tamilnad Mercantile Bank Ltd. to the account number 20372886222 in Allahabad Bank at Sector-15, Vasundhara, Ghaziabad in the name of Vimal Bhatnagar on 23.05.2014. The said fact is proved by PWs. PW-1 Vimal Bhatnagar has admitted that his account number was 20372886222 and a sum of Rs.50,000/- was transferred to his account. However, he clarified that he had to take Rs.60,000/- from Tarun Kumar which he had given to Tarun Kumar 3-4 months before giving of his account number to Tarun Kumar and Tarun Kumar had further paid two installments of Rs.5000/- each to him. The said witness has denied that the aforesaid amount of Rs.50,000/- was tainted money. He CBI Vs. Tarun Kumar Page No. 37 further clarified that it was part payment of Rs.60,000/- given by him to Tarun Kumar.
41. The prosecution has failed to prove that Mr. K. Chandershekhar Rao's son has applied for MSO registration with Ministry of Information & Broadcasting or that name of his son is C.K.Kannayya or that his son was Managing Partner of M/s Tanuku Communication Network. PW 1 even denied the signature of Mr. C. K. Kannayya when confronted with the application for MSO registration Ex. PW 15/C. He clearly stated that the name of his son is Kesiraju Saipramodh and his nick name is Kannayya. Here it is also noted that PW1 has denied the suggestion of Ld. PP that PW-1 had given Rs.50,000/- as bribe to Tarun Kumar to get DAS license for M/s Tanuku Communication Network, his family concern or that his family concern had applied for DAS License in the Ministry of Information & Broadcasting. Further, when the witness was confronted with his statement U/S 161 CrPC he stated that IO did not record his statement and denied major portion of his statement U/S 161 CrPC.
42. Although it is proved that Rs. 50,000/- was paid by Mr. K. Chandershekhar Rao to accused Tarun Kumar, however, the prosecution failed to prove the fact that PW-1's son applied for MSO registration or that the said amount was paid as bribe for expediting CBI Vs. Tarun Kumar Page No. 38 the MSO registration of M/s Tanuku Communication Network. The prosecution has failed to establish that any application has been moved by PW-28's son or by his family member with Ministry of Information and Broadcasting. The prosecution also failed to establish that mobile number 9848034789 mentioned in the application for MSO registration filed by M/s Tanuku Communication Network belonged to Mr. K.Chandershekhar Rao. Mr. K. Chandershekhar Rao clearly denied having mobile number 9848034789. The filing of MSO application by M/s Tanuku Communication Network has not been proved, therefore, it cannot be inferred that the said amount was paid by Mr. K.Chandershekhar Rao as bribe to Tarun Kumar for expediting MSO registration. PW-28 has only stated that he wanted MSO registration and one Mr. Sharma asked him to contact Mr. Kumar and he contacted Tarun Kumar who gave the account number of Vimal Kumar to which account the aforesaid money was transferred.
43. Further from the testimony of the witness, there is nothing on record to show that accused Tarun Kumar had taken Rs.50,000/- as illegal gratification as a motive or reward for inducing any official of Ministry of Information & Broadcasting, Government of India by corrupt or illegal means and the purpose for which the prosecution has alleged the accused to have taken money, has not been proved. Therefore, it can be safely concluded that prosecution has failed to prove the CBI Vs. Tarun Kumar Page No. 39 aforesaid allegation.
44. Now the question that arises is whether accused has committed cheating by aforesaid conduct.
45. There is nothing in the testimony of this witness that accused Tarun Kumar has represented himself to PW-28 K. Chandershekhar Rao as an official of Ministry of Information & Broadcasting or has demanded Rs.50,000/- as bribe. There is also nothing on record to show that K. Chandershekhar Rao was put under deception or he was made to deliver Rs.50,000/- fraudulently or dishonestly. Therefore, Section 420 IPC is also not attracted.
INCIDENT NO. 246. Now I turn to the other incident as cited by the prosecution.
47. As per prosecution accused Tarun Kumar had contacted different clients of Mr. Rajesh Kumar of M/s Brand Laison Pvt. Ltd. and impersonated himself as Mr. Kumar from Ministry of Information & Broadcasting and demanded bribe for getting MSO registration.
RELEVANT TESTIMONIES OF WITNESSES CBI Vs. Tarun Kumar Page No. 40
48. Here the testimonies of PW-2, PW-3, PW-7, PW-11, PW- 14 and PW-25 are relevant.
49. PW-2 Yogender Pal, Advisor, Ministry of Information & Broadcasting deposed that he was posted as Advisor on contract in Ministry of Information & Broadcasting. PW-2 detailed about the process for getting registration from Ministry of Information & Broadcasting.
50. PW-2, further stated that he did not know any person by the name of Tarun Kumar or Mukesh Kumar. He had received a complaint with recordings perhaps from Rajesh Kumar which was sent to him on whatsapp as an attachment which contained four recordings of conversation regarding expediting the MSO registration and one person calling himself as 'Kumar' was telling the other side that he would get his MSO registration issued fast and was demanding some money. PW2 stated that he sent these conversation to Vigilance Department through his seniors. During cross-examination, PW2 stated that he think within a day or two he forwarded that recording in the form of CD.
51. PW-3, Sh. Rajesh Kumar stated that he was working in CBI Vs. Tarun Kumar Page No. 41 M/s Brand Laison Pvt. Ltd. as Director since 2014 and the business of their company was to assist the applicants for getting compliance registration and approval in government/private institutions.
52. PW3 stated that he did not meet accused Tarun Kumar and he had seen this person but he could not identify him today. PW 3 after seeing the accused stated that he could not say whether the person was Tarun Kumar or not and he did not know any person by the name of 'Kumar'.
53. PW 3 stated that he had interacted with Yogender Pal one or two times in Ministry and one or two times on phone. PW 3 stated that they were getting recorded messages from their clients that someone from the Ministry was asking money for expediting the registration of application but again stated that some person named Kumar was asking money for expediting the registration of MSO application. PW3 stated that he could not produce these messages as the messages had already been deleted. He further clarified that these messages might have been deleted because of mobile hanging or that he had changed his mobile and he stated that he had forwarded the above audio messages to Yogender Pal.
54. PW-3 was cross-examined by Ld. PP for the CBI. During CBI Vs. Tarun Kumar Page No. 42 his cross-examination by Ld. PP, he stated that statement recorded U/S 161 CrPC, Ex.PW3/A was his correct statement. PW3 stated that he had correctly stated to IO that on that day he tried to catch him and they made an appointment to meet and he instructed PW 3 to meet him at the gate of the Ministry and accordingly, he reached there as per the description given by him to PW-3, PW-3 could recognize him to be the person who had contacted PW-3 over telephone and that person showed him few pages of copies and documents of applicants and these copies were belonging to the applicants whom he was assisting. PW3 stated that he caught him and told him to go with PW 3 to the official concerned in the Ministry. Thereafter, he abruptly escaped from his grip and ran away. PW3 further stated that he met a person referred in his statement, say for ten seconds and the said person escaped from his grip. PW3 further stated that he had correctly stated that he along with Inspector Kuldeep Singh, CBI, ACB, New Delhi went to Noida at the shop of the aforesaid person Mr. Kumar and he was not found there. Thereafter, a few days later i.e. on 23.05.2016, Inspector Kuldeep Singh called him at Metro Station, Sector-15, Noida and when he reached there the said Mr. Kumar was with Inspector Kuldeep and he identified him as the person who had introduced himself as Mr. Kumar and had demanded bribe money for getting the MSO registration done and who had been caught by him at the premises of Ministry of Information & Broadcasting earlier and had escaped by CBI Vs. Tarun Kumar Page No. 43 freeing himself from his grip and on that day he also accepted that they had already met at the premises of the Ministry earlier.
55. PW-3 also stated that the person present in the Court appears to be the person whom he had seen outside the Ministry Gate and at the Metro Station. PW-3 denied the suggestion that he was deliberately not identifying the accused person being won over by accused. PW3 also stated that he could not give details of his client who had received messages from the said Mr. Kumar regarding demand of money.
56. During cross-examination by Ld. Counsel for accused, PW3 stated that he had sent the messages with attached recordings to Mr. Yogender Pal in two to four days of receipt of these messages containing recording and he had forwarded these messages and recording to Yogender PaL through whatsapp. PW3 also stated that he could not tell the address of the shop or the areas where the shop was located. PW3 stated that it was in Noida and he had accompanied with the IO. PW3 also stated that when he went near Metro Station, Sector-15, Noida , CBI officials met him and they were inside a vehicle and they asked him to identify the person sitting inside the vehicle and he told them that the said person was having little resemblance with the person whom he met outside Ministry Gate.
CBI Vs. Tarun Kumar Page No. 4457. PW-11 Shankar Lal, Deputy Secretary, Digitization (DAS), in the Ministry of Information and Broadcasting deposed about the procedure followed for grant of DAS License to the applicants. PW11 stated that on receipt of Whatsapp message from Mobile No. 9810363988 to the Mobile No. 9811572044 of Advisor (DAS) Sh. Yogendra Pal, a letter dated 09.11.2015 along with whatsapp messages and screen shot of whatsapp messages was sent to JS (Films) & CVO to conduct inquiry in the matter. PW 11 stated that he may have got copied/transferred the Whatsapp messages into CD before sending the same to JS (Films) & CVO but he was not sure.
58. PW-25, P.Shadang, IO of the case stated that this case was entrusted to him for investigation on 23.09.2016 and on 23.09.2016, a search was conducted at the residential premises of accused Tarun Kumar and a copy Ex. PW25/A of grant of permanent Multi System Operator (MSO) registration, of M/s Haldwani Digital Services Pvt. Ltd. was recovered from the residence of Tarun Kumar. PW-25 further stated that accused was arrested vide arrest cum personal search memo dated 23.09.2016, Ex. PW25/B. PW-25 further stated that a transcript was prepared in order to find out whether the person who contacted MSO registration applicants demanded bribe money from the applicants, from the CD, Ex. PW7/E forwarded by Sh.
CBI Vs. Tarun Kumar Page No. 45V. K. Paul, Deputy Secretary, Vigilance, Ministry of Information & Broadcasting. PW-25 further stated that he seized copy of account opening form as well as statement of account in respect of account no. 20372886222 in the name of Vimal Kumar Bhatnagar maintained in Allahabad Bank, Vasundhara Branch, Ghaziabad vide seizure memo dated 24.03.2017, Ex. PW4/B. PW-25 also stated that he had received letter dated 24.01.2017, Ex. PW25/C from Sh. Rajesh Jain who was employee of Sh. Bashambhoo vide which he intimated that they had not paid any amount to the person who contacted them for getting the MSO registration done. PW-25 also stated that vide letter dated 24.03.2017, already Ex. PW10/A, Nodal Officer Sh. Chander Shekhar of Bharti Aitrtel Ltd. has forwarded CDR of mobile no. 9650521209 for the period 01.01.2014 to 13.12.2014 along with the copy of customer application form. PW-25 stated that vide letter dated 23.03.2017, already Ex. PW13/A, he received information regarding non-availability of CDR beyond the period of one year regarding mobile number 9848034789 from Nodal Officer, Idea Cellular Limited. PW-25 further stated that vide letter dated 07.02.2017, Sh. Sanjay Kumar, Under Secretary, Ministry of Information & Broadcasting forwarded 5 relevant files and files are Ex.PW25/D.
59. During cross-examination PW-25 stated that audio clips was provided to him by Inspector Kuldeep Singh contained in a single CBI Vs. Tarun Kumar Page No. 46 CD and it was not in sealed condition. PW-25 stated that transcription of the conversation recorded in the CD was done by Insp. Kuldeep Singh as the conversations were in Hindi and he could not read or write in Hindi but he can understand Hindi if some one speaks in Hindi. He had signed the transcription Ex. PW7/E and it took whole day in preparing the transcription.
60. PW-25 was re-examined by Ld. PP for CBI and he stated that CD containing audio clips was prepared by the client of Rajesh Kumar, Consultant. The messages were recorded by the client of Rajesh Kumar, Consultant as Rajesh Kumar had asked his client to record the messages. The witness was further cross-examined by Ld. Counsel for the CBI and he stated that he cannot comment as he did not remember that Rajesh Kumar Consultant received conversation from his clients and he sent the messages to Sh.Yogender Pal, Advisor, Ministry of Information & Broadcasting who converted those messages into CD.
ANALYSIS
61. Here it is noted that PW-3, Mr. Rajesh Kumar, in the beginning, stated that he did not meet Tarun Kumar and that he cannot identify accused Tarun Kumar and when accused was shown CBI Vs. Tarun Kumar Page No. 47 to the witness he stated that he cannot identify who was that person as he was seeing the accused for the first time and cannot say whether he was Tarun Kumar or not. The said witness went to the extent of saying that he did not know any person by the name of Mr. Kumar.
62. However, the witness during cross-examination also stated that he tried to catch one person namely Mr. Kumar whom he had called outside the Ministry Gate and succeeded in catching that person but the said person abruptly escaped from his grip and ran away. He further stated that he went to Sector-15, Noida when the IO had shown him a person sitting inside the CBI vehicle on 23.05.2016 and he had stated to the IO that the said person was having little resemblance with the person whom he met outside the Ministry Gate. PW-3 stated that accused person present in the court appears to be the person whom he had seen outside the Ministry Gate. The witness denied the suggestion that he was deliberately not identifying the accused being won over by accused.
63. The testimony of this witness is very shaky and self contradicting as at some place he stated that he cannot identify accused as he was seeing the accused for the first time and at the other place he stated that accused had little resemblance with the person whom he had caught outside the Ministry Gate. PW-3 Rajesh CBI Vs. Tarun Kumar Page No. 48 Kumar did not inform to the police or CBI at the time when accused demanded bribe and he tried to catch him and accused escaped. Here it will not be safe to rely upon the testimony of this witness who has contradicted himself on material points. The identity of the accused is not established by the said witness.
64. Further, the said witness failed to specify to whom the accused had contacted to ask for money to expedite the registration of MSO application. The witness failed to state any date or the name of his client to whom the said demand was made. The witness also failed to specify as to what were the messages allegedly sent by accused to his client. He had only stated that he had forwarded the audio messages to Mr. Yogender Pal.
65. The said witness further stated that he cannot produce the messages which he received from his client regarding one Mr. Kumar asking money to expedite the application of MSO registration as these messages might have been deleted because of the mobile hanging or his changing the mobile. PW-2 Mr. Yogender Pal stated that he did not know from which mobile number he received audio conversation. Further, PW-3 Rajesh Kumar failed to state the name of the client who sent messages to him.
CBI Vs. Tarun Kumar Page No. 4966. PW-3, Sh. Rajesh Kumar has stated that he along with Insp. Kuldeep Singh went to the shop of Mr. Kumar where he was not found and thereafter few days later on 23.05.2016 he was called at Metro Station, Sector-15, Noida, while PW-7 Insp. Kuldeep Singh has not stated any incident when he alongwith Rajesh Kumar went to the shop of Tarun Kumar.
67. Even if it is believed that accused has been identified by Rajesh Kumar or Insp. Kuldeep Singh, although same has not been proved beyond reasonable doubt, the fact remains that there is nothing on record to show that accused had demanded any money from Rajesh Kumar or from any of his clients. Even the date of such demand or the amount has not been specified.
68. Here it is appropriate to record the major discrepancies in the investigation which casts serious doubt on the investigation. IO/Insp. Kuldeep Singh, PW-7 stated that a preliminary inquiry was registered on his verification report Ex. PW7/C conducted by him and there was need to identify Mr. Kumar as the suspect was in the name of Mr. Kumar only. He stated that there was mobile number operated by Mr. Kumar through which he talked to the applicants. He requisitioned call detail record of that mobile number and on scrutiny found that accused was in regular touch with a phone number. He CBI Vs. Tarun Kumar Page No. 50 called on that number which was in the name of Firasat and he made inquiry from him and came to know that the person who was calling him by the name of Mr. Kumar came to meet his friend Mr. Mukesh Sharma.
69. Thereafter Mukesh Sharma was interrogated who disclosed that he had gone to Firasat in Muradabad, UP with his friend Tarun Kumar. PW-7 further stated that there was another suspect who was in regular touch and that person was Anurag Talukdar. Anurag Talukdar disclosed he met twice to Mr. Kumar as he was also MSO applicant. Anurag Talukdar stated that he can identify Mr. Kumar.
70. Here it is noted that as per witness PW-7, he had got CDR of the mobile which was being used by the accused but no such CDR is on record and further PW-7 failed to tell the mobile number which was being used by the accused. PW-7 at one place stated that he requisitioned the call detail record from different cellular companies of the mobile numbers which were reflecting in the complaint. However, there is no such CDR is on record and PW-7 in his entire evidence did not even state which number was being used by the accused to call different applicants or his friend which gave lead to the investigating agency to arrest accused.
71. The prosecution failed to explain as to why the phone number and the SIM Card which was being used by the accused to CBI Vs. Tarun Kumar Page No. 51 call the different MSO applicants and which as per statement of PW-7, Kuldeep Singh was being used by accused was not seized by the CBI. Same is a serious lapse for which no justification has been given by the prosecution.
72. Further, it also shrouds/casts doubt on the result of investigation of the CBI that they got call detail record of mobile number of accused and that gave them lead to catch the accused. Needless to say that the witness Anurag Talukdar has not been examined by the CBI.
73. Here it will not be out of place to mention that there is one CDR of mobile number 7042660970 for the period 01.04.2016 to June, 2017, Ex. PW10/B on record, however, there is nothing on record to show that the said document was seized by CBI as there is no requisition letter regarding the CDR nor any seizure memos nor any forwarding letter of Agency. It only shows that the investigation was done in very shoddy manner.
74. Having arrived at aforesaid findings, the next point to be considered is the electronic evidence in the form of CD, Ex. PW-7/E produced by CBI allegedly containing whatsapp messages sent to different MSO applicants by the accused and which was further forwarded to PW-3, Rajesh Kumar, then to Yogender Kumar, who sent it in the form of CD to Vigilance Department.
CBI Vs. Tarun Kumar Page No. 5275. Here it will be apt to refer some of the judgment relevant on the subject before delving on the issue. In the judgment of Ram Singh Vs. Col. Ram Singh, AIR 1986 SC 3, it is clearly observed that while relying upon the recorded conversation, the possibility of tampering should be clearly ruled out.
76. In the judgment of S.M. Katwal Vs. Veerbhadra Singh, Hon'ble Supreme Court did not rely upon the CD containing voice recording when the same remained unsealed during the course of inquiry and investigation and in view of the report of the Forensic Expert that authentication of tape recorded conversation was not possible in the absence of phone call details and original calling device.
77. Further, in the judgment of Nilesh Dinkar Paradkar Vs. State of Maharashtra, Hon'ble Supreme Court observed that evidence of voice identification is at best suspect, if not wholly unreliable and accurate voice identification is much more difficult then visual identification. It is prone to such extensive and sophisticated tampering, doctoring and editing with the reality can be accordingly replaced by fiction, therefore, the Court have to be extremely cautious basing conversation purely on the voice identification.
CBI Vs. Tarun Kumar Page No. 5378. In the light of aforesaid settled proposition of law, it is to be seen whether CD, Ex.PW7/E produced by prosecution is worthy of reliance. The PW-3 Rajesh Kumar, Director M/s Brand Laison Pvt. Ltd. had received whatsapp messages from his clients regarding demand of bribe by one Mr. Kumar and he had forwarded whatsapp messages regarding demand of bribe to Sh. Yogender Pal, Advisor, Ministry of Information & Broadcasting. PW-2 Yogender Pal stated that there were four recording of conversations which were sent to him on whatsapp as an attachment wherein one person calling himself as Mr. Kumar told the other side that he will get the MSO registration fast and had demanded some money and he had sent these conversations to Vigilance Department through his seniors in the form of CD. As per PW-17 Rajesh Kumar, Vigilance Department of the Ministry had made a complaint to CBI vide letter dated 16.07.2015 Ex. PW17/A regarding aforesaid complaints.
79. PW-7 Insp. Kuldeep Singh had stated that he got the CD which was in unsealed condition from the Ministry. PW-25 P. Shadang has filed the CD without seal in the court. IO PW-25 P.Shadang stated that he got the CD Ex. PW7/E which was not in sealed condition.
80 PW-3 Rajesh Kumar failed to state the name of his client CBI Vs. Tarun Kumar Page No. 54 who sent whatsapp messages. He stated that messages were deleted and he did not remember when messages were sent by him. PW-2 Mr. Yogender Pal, Advisor stated that he did not know that from which mobile number he had received audio conversations.
81 There are contradictions in the testimonies of witnesses as PW-11 Shankar Lal, Deputy Secretary, Digitization (DAS), in the Ministry of Information and Broadcasting stated that Mr. Yogender Pal, Advisor himself copied/transferred Whatsapp messages into CD before sending the same to JS (Films) & CVO while PW-25, P.Shadang, Investigating Officer stated that Rajesh Kumar, Consultant had provided CD to Ministry of Information & Broadcasting containing audio clip. It is also not clear as to who had prepared the CD of whatsapp messages contained in mobile phones. There is contradictory statements of witnesses on this point.
82 Further, the mobile phone through which whatsapp were sent by the accused was not seized nor the mobile phone of recipients of these messages or mobile phone of Rajesh Kumar or Yogender Pal were seized. The CD has throughout remained in unsealed condition and has not been subjected to FSL examination for CBI Vs. Tarun Kumar Page No. 55 the purpose of its veracity and identification of voices contained in the said CD. The said CD was lying with Vigilance Department of Ministry of Information & Broadcasting for about one year. Under the facts and circumstances, the CD, Ex.PW7/E cannot be relied upon. Hence, the conversation in CD cannot be relied upon.
THIRD INCIDENT 83 Now I turn to another incident which has been cited by the prosecution when the accused allegedly impersonated himself as Mr. Kumar from Ministry of Information & Broadcasting and demanded bribe from Swapnendu Mustafee, Director M/s Akash Tori Infocom Pvt. Ltd. for getting MSO registration.
RELEVANT TESTIMONIES OF WITNESSES 84 The testimonies of PW-14, Aman Rastogi, PW-17, Rajesh Kumar, PW-21, Sonika Khattar and PW-26, Swapnendu Mustafee are relevant.
85 PW-14 Aman Rastogi deposed that Sh. Swapanendu CBI Vs. Tarun Kumar Page No. 56 Mustafee is Director of M/s Aakash Tori Pvt. Ltd. and is Member of All India Avishkar Dish Antenna Sangathan of which PW14 is Distribution Head. PW 14 stated that Swapanendu Mustafee had applied for MSO registration with Ministry of I & B and completed all formalities and was to be issued Registration Certificate. After approval of his application for MSO Registration, someone 'Kumar' had demanded Rs. 50,000/- as bribe for providing MSO Registration Certificate. Mr. Kumar had also given his Account Number to Swapanendu Mustafee and Swapanendu Mustafee informed to A.K. Rastogi, the then President of All India Avishkar Dish Antenna Sangathan regarding the demand of bribe by one Mr. Kumar in respect of MSO Registration. Mr. A.K. Rastogi talked to Mr. Yogendra Pal, Advisor to Ministry of I&B and Mr. Yogendra Pal guided Mr. A.K. Rastogi to submit a complaint. PW 14 stated that he had provided Account Number and Mobile Number through which demand of bribe was made to Mr. Yogendra Pal vide an e.mail.
86 PW-17, Sh. Rajesh Kumar, Under Secretary, Ministry of Information & Broadcasting, Shastri Bhawan, New Delhi deposed that he issued letter dated 18.06.2015, already Ex.PW7/A addressed to Director, CBI. PW-17 further stated that four complaints were received in Broadcasting Policy & Legislation (BP&L) regarding demand of bribe by Mr. Kumar for grant of MSO license and these four complaints CBI Vs. Tarun Kumar Page No. 57 were examined in the Vigilance Section of the Ministry of Information & Broadcasting and after approval of competent authorities, it was decided to refer the matter to CBI for investigation. PW-17 stated that alongwith complaint, already Ex.PW7/A, he had annexed original complaints which were received in Vigilance Section and bank statement. PW-17 also stated that he had written a letter dated 16.07.2015 to Director, CBI. PW-17 stated that he had also forwarded complaint, already Ex. PW8/A of Sh. Vineet Bhagat vide his forwarding letter dated 16.07.2015, Ex.PW17/A. PW-17 also stated that all the aforesaid four complaints were received in BPL Section in July-Aug, 2014 and the Vigilance Department took substantial time to deliberate as to which authority is appropriate for referring the complaint.
87 PW-21 Ms. Sonika Khattar, Under Secretary, Ministry of Information & Broadcasting deposed about different notes in relation to processing of MSO License to M/s Akash Tori Infocom Services.
88 PW-26 Swapnendu Mustafee stated that he was the Director of M/s Akash Tori Infocom Services Pvt. Ltd. during period 2010 to 2015 and he did not know any firm by the name of M/s Good Media. He had applied for MSO License and same was granted in the year 2014. PW-26 exhibited his application for MSO License alongwith CBI Vs. Tarun Kumar Page No. 58 enclosures as Ex. PW 26/A. PW-26 stated that the delay in registration of MSO application, hence, he followed up the matter and in April, 2014 he received a phone call on his mobile number 9333900620 from Ministry of Information and Broadcasting as shown in the true caller in his mobile and some Mr. Kumar was calling from the other end and informed that registration was ready and demanded Rs.2 lakh. PW-26 told that person that he had already deposited the fee then, on negotiation the said person asked him to pay Rs.40,000/-. Thereafter, he informed regarding this incident to Cable Operation Association named as Aviskar Dish Antenna Sangh and they made some complaint, details of which he did not know. PW 26 stated that he got MSO license in June, 2014 and he did not pay any amount to anyone for grant of said license. Mr. Kumar who had called him had also given him some account number by SMS on his mobile phone and he cannot tell the mobile details of account number as provided to him by Mr. Kumar due to change of his mobile.
89 PW 26 during cross-examination stated that he had provided the detail of account number through SMS to M/s Aviskar Dish Antenna Sangh but he was not confirmed since 4 years have already passed.
ANALYSIS CBI Vs. Tarun Kumar Page No. 59 90 As per prosecution the accused had demanded Rs.50,000/- impersonating himself as Mr. Kumar from Ministry of Information & Broadcasting for getting MSO registration done from Mr. Swapnendu Mustafee, Director of M/s Akash Tori Infocom Services Pvt. Ltd.
91 Here it is seen that Mr. Swapnendu Mustafee, Director of M/s Akash Tori Infocom Services Pvt. Ltd. stated that in April, 2014 he received a phone call on his mobile number 9333900620 from MIB as shown in the truecaller of his mobile, someone was calling from the other end and informed that registration was ready and demanded Rs.2 Lac and on negotiation the demand was reduced to Rs.40,000/-. The prosecution has failed to show that accused has ever any mobile number allocated to him by Ministry of Information & Broadcasting or he had used any such mobile number.
92 PW-26 Mr. Swapnendu Mustafee stated that he cannot tell the detail of the account number as provided to him by Mr. Kumar due to change of his mobile. Even the SMS which was sent to Swapnendu Mustafee is not on record. It is also not clear which mobile number was used to call Mr. Swapnendu Mustafee.
CBI Vs. Tarun Kumar Page No. 6093 Under the facts and circumstances, it cannot be said that prosecution has succeeded in proving that accused Tarun Kumar had talked to Swapnendu Mustafee and asked him to pay bribe.
FOURTH INCIDENT 94 Now turning to the other incident as alleged by prosecution that accused had contacted Rajesh Kumar, employee of Mr. Gagan Bashambo, official of M/s Good Media and demanded bribe for getting MSO registration done impersonating himself as Mr. Satya Narayan, Officer of Ministry of Information and Broadcasting and demanded bribe of Rs.50,000/- for getting DAS license. The other allegation is that accused had contacted one Jyothi Shankar Anamalai and impersonated himself as Satya Narayan, Official of Ministry of Information & Broadcasting and demanded bribe.
95 Here it is noted that neither Mr. Gagan nor Mr. Jyothi Shankar Anamalai has been examined by the prosecution to prove their case although prosecution has proved that application of Mr. Jyothi Shankar Anamalai and Mr. Gagan of M/s Good Media were pending before Ministry of Information & Broadcasting but none of these witnesses have been examined to prove that any demand was CBI Vs. Tarun Kumar Page No. 61 made by anyone impersonating himself as Mr. Kumar or by accused Tarun Kumar.
FIFTH INCIDENT 96 The next incident cited by the prosecution is that accused had impersonated himself as Mr. Kumar and demanded Rs.25,000/- as bribe from Dhananjoy Kishor Chakraborty, Authorized Representative of M/s Desh Entertainment Pvt. Ltd. and called from his mobile number 9650521209 and asked them to deposit bribe amount in account no. 33981800596 of Sandeep Arora.
RELEVANT TESTIMONIES OF WITNESSES 97 Here testimonies of PW8, Mr. Vineet Bhagat, PW-6, Mr. Sandeep Arora and PW-24, Mr. Dhananjay Kishore Chokroborty are relevant.
98 PW-8 Sh. Vineet Bhagat deposed that his client Dhananjoy Kumar Chakraborty, Authorized Representative of Company namely Desh Entertainment Pvt. Ltd. informed him that on 25.06.2015 he received a telephonic call from one Mr. Kumar who demanded Rs. 25,000/- as bribe from the company for expediting the issue of DAS CBI Vs. Tarun Kumar Page No. 62 license. PW8 stated that he can tell the mobile number from which his client received call, after seeing his complaint. PW8 made a complaint dated 01.07.2015, Ex. PW-8/A. He further stated that his client had received a telephonic call from Mobile No. 9650521209 and through SMS gave account details from Mobile No. 7042660970 and the account details mentioned in the SMS said that Account was in the name of Sandeep Arora in State Bank of India, Sector-12, Noida, bearing Account No. 33981800596.
99 During cross-examination PW8 stated that the aforesaid call from Mobile No. 9650521209 and SMS from Mobile No. 7042660970 were received on mobile phone of his client namely Dhananjoy Kumar Chakraborty but he did not remember the mobile number of his client Dhananjoy Kumar Chakraborty. PW8 stated that he did not remember the exact message which was received by his client.
100 PW-6 Sandeep Arora deposed that during the years from 2009 to 2016, he was running mobile shop at C-31/11, Sector-12, Noida and he was doing the business of mobile repair, recharge and SIM issues. PW6 stated that he knew Tarun Kumar since 2004 and had friendly relations with Tarun Kumar and he was having Saving Account in SBI at C-10, Sector-12, Noida. But he did not remember CBI Vs. Tarun Kumar Page No. 63 his account number. PW6 exhibited certified copy of account opening form as Ex. PW6/A in respect of account number 33931300896. PW6 stated that once he had given his account number of the SBI, passbook, ATM to Tarun Kumar as there was no transaction in his saving account and he was in need of loan to show transaction in his account and he had given his account number and details to Tarun Kumar. PW6 stated that he did not know regarding deposit of any amount into his account as he did not make entry in his passbook. Thereafter Tarun Kumar had returned his pass book and ATM Card. PW6 stated that no transaction had taken place in his account after handing over of pass book and ATM Card to Tarun Kumar till the same was returned to him. PW6 stated that he was also maintaining other bank account no. 642702010003423 in Union Bank at C-2, Sector-12, Noida. PW6 stated that he sold only one SIM to Tarun Kumar having mobile connection no. 9716171766 on the ID proof provided in the name of Tarun Kumar in the year 2009. PW6 stated that he did not sell any SIM to Mukesh Sharma who is known to him.
101 Ld. PP for CBI cross-examined the witness since the witness stated that he could not say as to what was recorded by DSP Shadang and he was not well conversant with English. PW6 stated that he did not state to the CBI that some money was transferred to his account by someone which was withdrawn by Tarun Kumar. PW6 CBI Vs. Tarun Kumar Page No. 64 denied the suggestion that Tarun Kumar was running a Cyber Cafe and from customers he used to collect ID proof for operating computers and those ID proofs in different names were handed over to him for purchasing SIM in their names and PW6 used to sell SIM cards against these ID proofs to Mr. Tarun Kumar.
102 PW-24 Dhanajay Kishore Chakraborty, Director, M/s Desh Entertainment Pvt. Ltd. deposed that they had applied for MSO registration at the end of year 2014 through their Advocate Sh. Vineet Bhagat. PW-24 proved the letter dated 10.12.2014 regarding forwarding of his application for grant of MSO license as Ex. PW24/A and the MSO application along with annexures as Ex. PW24/B. PW 24 stated that in the month of June, 2015, he received a phone call and the caller demanded Rs.25,000/- and also stated that in case the said amount was not paid, his application would be delayed. PW 24 told the caller that he had already paid Rs. 1 Lac towards fee, on which the said caller gave him SMS giving details of one Mr. Sanjeev Arora and his account number in State Bank of India, Sector-12, Noida and said that amount of Rs. 25,000/- be deposited in the said account and his application for MSO registration will be expedited. PW-24 stated that he did not remember the account number which was sent to him by SMS by the said caller. PW-24 stated that he did not remember the mobile number of the said caller, however, he had already given CBI Vs. Tarun Kumar Page No. 65 detail of account number and phone number as stated above, to his Lawyer Sh. Vineet Bhagat. PW 24 stated that he got said call either at his mobile numbers 9614110917 or 9476426162.
103 PW-24 in his cross-examination by Ld. PP for CBI stated that caller did not disclose his name during conversation and he did not inform the name of the caller to his Lawyer Sh. Vineet Bhagat as he was not knowing the name of the caller. He further stated that in the SMS, the name was "Sandeep Arora"
104 During cross-examination by Ld. Counsel for accused, PW 24 stated that he did not get any information regarding processing of MSO registration from Ministry of Information & Broadcasting. However, some official from the office Ministry of Home Affairs, situated at Durgapur, came to his office and made enquiry regarding his business. PW 24 stated that the caller who had demanded Rs. 25,000/- had called him twice, firstly, he called him and demanded Rs. 25,000/- and later on, when he had sent the SMS to him and both the calls were made on the same day.
ANALYSIS 105 It is clear from the testimony of PW-24 Dhanajay Kishore Chakraborty that he had applied for MSO registration vide application CBI Vs. Tarun Kumar Page No. 66 Ex. PW24/B and stated that someone had called him and demanded bribe in the month of June, 2015. The witness failed to specify the date when the said demand was made. He could not tell the account number which was sent to him by SMS by the said caller. He is stated to have given all details of the mobile numbers and SMS to his Counsel Sh. Vineet Bhagat, however, he did not give the name of the caller to his Counsel Sh. Vineet Bhagat as he himself was not knowing the name of the caller nor the caller had told his name when he demanded bribe from him. PW-8 Vineet Bhagat stated that in his complaint that he had mentioned the name of Mr. Kumar who had called to his client Mr. Dhanajay Kishore Chakraborty asking for money. It has not been clarified how did Vineet Bhagat, PW-8 came to know the name of person who called Dhanajay Kishore Chakraborty.
106 Here it is noted that call detail record of mobile number 9650521209 or 7042660970 are not available on record. Further, there is nothing on record to connect these mobile phones with accused. Both the mobile numbers are in the name of some person, other than accused and have been taken on fake documents. None of these mobile or SIM have been seized by the Investigating Agency. Under the facts and circumstances, the prosecution has also failed to establish that call was made from mobile no. 9650521209 on mobile phone of Dhanajay Kishore Chakraborty demanding money. There is nothing on CBI Vs. Tarun Kumar Page No. 67 record to show that demand was made from mobile no. 9650521209 and SMS was sent by mobile number 7042660970 by the accused.
107 The prosecution has failed to prove beyond reasonable doubt that accused had called Dhanajay Kishore Chakraborty as the witness himself has stated that someone had called him demanding bribe without disclosing his name.
108 One more question arises as to whether accused Tarun Kumar had mobile number 9650521209 or 7042660970 and used these numbers to call different MSO applicants.
109 Here the testimonies of PW-9, Mukesh Kumar, PW-10, Surender Kumar, PW-12, Avinash Kumar Maurya and PW-13, Pawan Singh are relevant.
110 PW-9 Mukesh Kumar deposed that his mobile Number was 9136365212 since 2011 and he did not know any person by the name of Mahipal Singh, S/o Sh. Fate Singh and he cannot tell to CBI Vs. Tarun Kumar Page No. 68 whom the mobile Number 9650521209 belongs to and he did not know any person by the name of Tarun Kumar or Mukesh Sharma. PW9 further stated that he cannot tell whose photograph is appearing on photocopy of Customer Application Form for Mobile Number 9650521209, Ex/ PW9/A. 111 PW-10 Surender Kumar, Nodal Officer, Bharti Aitel Pvt. Ltd. stated about the Customer Application Form , Ex. PW 9/A in the name of Mahipal Singh S/o Sh. Fateh Singh regarding mobile no. 9650521209 and proved the CDR of mobile no. 7042660970 as Ex. PW 1/E and the Certificate U/S 65B of Indian Evidence Act as Ex. PW10/C. PW 10 also stated about the certified copy of Customer Application Form of mobile no. 7042660970 in the name of Avinash Kumar Maurya and exhibited the same as Ex. PW 10/D. PW 10 stated that the aforesaid mobile number 7042660970 was activated in the name of Sh. Avinash Kumar Maurya on 22.04.2014 and same number was again activated in the name of Mother Dairy Fruit & Vegetable Pvt. Ltd. on 11.11.2016 on the request of Sh. Rajesh Mishra and exhibited record is Ex. PW10/A. 112 PW-12 Avinash Kumar Maurya, Software Engineer stated that he had Airtel mobile connection no. 8800388752 for the last three years and he did not obtain any other Airtel mobile connection. PW 12 CBI Vs. Tarun Kumar Page No. 69 stated that he did not know whose photograph is appearing at Portion B of the customer application form, Ex.PW10/D and the aforesaid application is not in his hand writing and did not bear his signature. PW 12 stated that the copy of Aadhar Card, part of Ex.PW10/D is the copy of his Aadhar Card but photo impression of the signature at Point B on copy of Aadhar Card is not his and his Aadhar Card no. is 591478525693. PW 12 further stated that he had handed over his Aadhar Card to cybercafe for applying any job but he cannot tell the name of cybercafe.
113 PW-13 stated that call detail record of mobile no. 9848034789 is not available with them.
ANALYSIS 114 As per testimony of PW-9 and PW-10, the mobile number 9650521209 is in the name of one Mr. Mahipal Singh while the mobile number 7042660970 is in the name of Mr. Avinash Kumar Maurya. Mr. Avinash Kumar Maurya has denied to have such mobile number. It has also come on record that mobile number 9650521209 in fact did not belong to Mahipal Singh. There is nothing on record to connect the accused person with mobile number 7042660970 as there is absolutely no evidence on record to this effect. Further, PW-28 K.Chandershekhar CBI Vs. Tarun Kumar Page No. 70 Rao has stated that mobile number 9650521209 belonged to Mr. Tarun Kumar otherwise there is nothing on record to show that this mobile phone number was used by accused. IO did not seize either the mobile or the SIM Card no. 9650521209 or mobile or SIM Card number 7042660970. There is also no call detail record of the relevant period. The prosecution failed to prove that accused was in possession of these mobile phones.
115 Further the delay of one year by Vigilance Department of Ministry of Information & Broadcasting in forwarding the complaint has further lead to dilution/erasing of substantial evidence. No sufficient/justified explanation has been given by any of the prosecution witness from Ministry of Information & Broadcasting regarding delay caused in lodging the complaint with CBI.
116 Here at the cost of repetition, it is relevant to state that investigation conducted by IO is also very shoddy and does not inspire confidence and same has been discussed in detail while deciding the veracity of CD, PW-7/E, produced by prosecution. It is noted that as per PW-7, Kuldeep Singh SI, he had got CDR of the mobile which was being used by the accused but no such CDR is on record. PW-7, CBI Vs. Tarun Kumar Page No. 71 at one place, stated that he requisitioned the call detail record from different cellular companies of the mobile numbers which were reflecting in the complaint, however, there is no such CDR is on record and PW-7 in his entire evidence did not utter the mobile number being used by the accused to call different applicants or his friends. PW-7 Kuldeep Singh and PW-25 IO P.Shadang did not seize the mobile which was being used by the accused.
117 The prosecution failed to explain as to why the mobile phones and the SIM Cards which were being used by the accused to call the different MSO applicants were not seized by the CBI.
118 The judgment relied upon by Ld. PP are on appreciation of evidence and does not help the case of prosecution.
119 Pondering over the ongoing discussion, I am of the considered opinion that prosecution has failed to bring home guilt of accused Tarun Kumar beyond reasonable doubt, accordingly, I hereby acquit him from all the charges.
120. File be consigned to record room. ARVIND Digitally signed by ARVIND KUMAR KUMAR Date: 2018.05.14 16:38:52 +0530 Announced in the open court (Arvind Kumar) on this 9th day of May, 2018 Special Judge, CBI PHC/New Delhi CBI Vs. Tarun Kumar Page No. 72 CBI Vs. Tarun Kumar Page No. 73 CBI Vs. Tarun Kumar Page No. 74