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Delhi District Court

Upon Judgment Cited As Gokul Chand ... vs . on 17 November, 2011

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                        IN THE COURT OF SH. R.P.PANDEY 
                  SPECIAL JUDGE 01 (PC ACT) CBI : ROHINI : DELHI 

                             Corruption case No. : 3/2008

CENTRAL BUREAU OF INVESTIGATION          


Vs. 

1.  Sukh Ram S/o Sh.  Bhavdev,
     Former Minister of State for 
     Communication,  Govt.  of India,  
     New Delhi.

2.   Devinder Singh Choudhary  (Since deceased)
    S/o Sh.  Lal Chand, 
    Chairman,  Haryana Telecom Limited,
    Kherisadh,  Rohtak, 
    R/o 574/13,  Vikas Nagar, 
    Sonepat Road,  Rohtak. 
   
Date of Registration of FIR : 22.11.1996
Date of Framing of Charge : 01.06.2002
FIR No.                                 :  RC­1(A)/96­ACU(V) 
Under Section                        :  120 B IPC r/w Section 13 (2) r/w 
                                         13 (1) (d) of P.C. Act 1988 and 
                                         U/s 7 and 12 of P.C. Act 1988.
Arguments 
concluded on                    :  05.11.2011

Date of Order                    :  17.11.2011


  CASE ID No.                    :  02404R0077291998


                                                                     Contd....
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   JUDGMENT

1. Brief facts as per the case of prosecution as given in the charge sheet are that an FIR bearing no.RC­3(A)/96 was registered with ACI­IV Branch of CBI against accused/Sukh Ram, the then Minister of State for Communication {MOS(C)}, on 13.08.1996. A search warrant was obtained by Investigating Officer (IO) of that case from the court of Sh.Dinesh Dayal, Ld.Spl.Judge (CBI), Delhi to search the house of accused/Sukh Ram at Shyam Khetar, Mandi (H.P.). That search warrant was endorsed by IO in the name of Sh.B N Jha (PW­25) Dy.SP of CBI who along with his subordinate staff reached Mandi on 14.08.1996. On reaching there, he arranged independent witnesses, two from State Bank of India (SBI), Mandi and the third witness from State Bank of Patiala (SBOP), Mandi. It was also decided that the search was to be conducted at the house of the accused in Mandi, on 16.08.96. On 15.08.1996, SP of CBI Sh.K Contd....

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L Meena also reached Mandi in order to personally supervise the search operation. The two witnesses, namely,S/Sh. K K Goyal and Harish Kapoor from State Bank of India, Mandi, reported to Mr.Jha at 6.30 a.m on 16.08.96. On 16.08.96, the search team along with Mr.Goyal and Mr.Kapoor reached the house of the accused at Mandi. Two persons, namely, Veer Singh and Rampal were also present there at the house of accused/Sukh Ram. The instant FIR No.RC­1(A)/96­ACU(V) is an off shoot of the incriminating material which was recovered from Mandi, house of accused/Sukh Ram and further investigation carried out by CBI.

2. FIR No.RC­1(A)/96­ACU(V), was registered on 22­11­1996 against accused/Sukh Ram, Former Minister of State for Communication, Govt. of India, New Delhi and his co­accused / Devinder Singh Choudhary, Chairman, Haryana Telecom Limited, Contd....

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Rohtak u/s 120B IPC and Sec.13(2) r/w Sec.13(1)(d) and Sec.7 and 12 of the Prevention of Corruption Act, 1988 (for short PC Act) alleging that accused/Sukh Ram, during 1995­1996, while working as Union Minister of State for Communication {for short MOS(C)}, being a public servant, in conspiracy with his co­ accused/Devinder Singh Choudhary, Chairman of M/s Haryana Telecom Limited, (for short HTL) Rohtak, by corrupt or illegal means and by abusing his official position as public servant, caused pecuniary advantage to himself and to M/s Haryana Telecom Limited, Rohtak, in the matter of procurement of 3.5 Lakh Conductor Kilometers (for short LCKM) of Polythene Insulated Jelly Filled (PIJF) cables costing about Rs. 30 crores. Accused/ Sukh Ram also obtained gratification other than legal remunerations from Devinder Singh Choudhary (for short D S Choudhary), Chairman of H.T.L., as a motive or reward for showing the favour to the said firm.

Contd....

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3. Accused/Sukh Ram joined the Council of Ministers of the Govt. of India on 2­7­92 and functioned as Minister of State for Communication with independent charge from 18­1­93 to 16­5­96. He was also a Member of Parliament from Mandi Lok Sabha Constituency of Himachal Pradesh. At the time of registration of this F.I.R he was Member of Legislative Assembly of Himachal Pradesh. Accused/D.S.Choudhary was working as Chairman of M/s Haryana Telecom Ltd., Rohtak (HTL) He was also the President of PHD Chamber of Commerce & Industry, New Delhi.

4. It is further alleged in the charge sheet that the department of Telecom, Govt. of India, New Delhi floated tender vide tender inquiry No.14­21/94 MMT (MMS) dtd. 30­11­1994 for procurement of 352 lakh Conductor Kilometer (LCKM) of Contd....

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Polythene insulated jelly filled (PIJF) cables for Mahanagar Telephone Nigam Limited (for short MTNL) and Department of Telecommunication (for short DOT). The tender was opened on 24­1­1995 and there were 27 companies who submitted their bids. S/Shri A.K. Jedhkey, ADG(ST), O.P. Bibra, ADG(MMY) and Vijay Rajpal AD (MMY) constituted the bid opening team and nine bids were not read out for technical reasons like want of type approval, bid security, etc. and the bids of the remaining 18 parties including HTL were sent to Tender Evaluation Committee (TEC) The TEC was headed by Advisor (Production) as Chairman, while DDG(PF) was a Member and DDG (MM II) was Member­cum­Convenor. The TEC examined various technical and financial aspects of tender, held various deliberations for approval of Telecom Commission and processing of the purchase proposal.

Contd....

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5. The said tender was originally for 352 LCKM but the quantity was subsequently revised to 359.29 LCKM due to deciphering of the size­wise quantities of the different sizes of cables in kilometers. The required quantity of PIJF cables for the year 1995­1996 was 260 LCKM calculated at the rate of 8 CKM per line + 10% for maintenance for 29.44 Lakh lines. The said quantity of procurement of cable was further revised to 288.72 LCKM calculated @ 8 CKM per line + 10% for net additions of exchange capacity by 3280940 lines. This requirement was further enhanced by 98.43 LCKM due to additional requirement @ 3 CKM per line for 3280974 lines making the grand total of requirement as 387.15 LCKM.

6. Against the said requirement of 387.15 LCKM the VLF Cell had already purchased 85 LCKM on deferred payment. Besides, the DOT had purchased 40 LCKM and MTNL 18.56 LCKM,both on Contd....

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cash payment on ad hoc basis. Thus the total cable already purchased was 143.56 LCKM and there was a balance requirement of 243.59 LCKM. Out of the total requirement of 387.15 LCKM, MTNL was allocated 57.61 LCKM while DOT was allotted 329.54 LCKM.

7. Out of 329.54 LCKM to be purchased for DOT they had already purchased 125 LCKM (85 LCKM on deferred and 40 LCKM on cash) and there remained a balance of 204.54 LCKM cable to be purchased. Out of this, 89.63 LCKM was to be purchased on cash and 114.91 LCKM on deferred payment basis, in view of the finance available with the department.

8. Out of 57.61 LCKM to be purchased by MTNL they had already purchased 18.56 LCKM in cash (against authorization of 18.74 LCKM i.e. 0.18 LCKM less purchased) and there remained a Contd....

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balance of 39.05 LCKM only to be purchased. Out of this 39.05 LCKM, 30.74 LCKM was to be purchased on cash and 8.31 LCKM on deferred payment, in view of the finances available with the department.

9. The total proposed purchase on cash as per TEC was 178.93 LCKM and they had already purchased 58.56 LCKM on cash. Thus, there remained a balance of 120.37 LCKM (178.93 - 58.56) to be purchased on cash. Since MTNL had purchased 0.18 LCKM less than its authorized quantity the total requirement for purchase in cash became 120.37­0.18 = 120.19 LCKM only.

10.Sh. R.P. Hans, Dy. Director General, MM II submitted a note dated 26­9­95 for procuring 178.93 LCKM cables on cash basis for the year 1995­96. This recommendation was approved by the Telecom Commission.

Contd....

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11.Accused/Sukh Ram, the then Minister of State (Communication), vide his note dated 16­7­93 had ordered the Chairman Telecom Commission that after the finalization of every tender and before the issue of purchase order, every case may be put up to him with a note from the Chairman, Telecom Commission, giving summary of the history of the case and explaining delay in time taken for finalization of the tender. In view of these instructions the above proposal was placed before accused/Sukh Ram, the then Minister of State for Communication for final approval.

12.Accused/Sukh Ram, the then Minister of State for Communication vide his note dated 30­9­95 observed that only 6 months were left for supplies to be effected during the current financial year 1995­96 for meeting the targets but orders proposed on some of the firms were far in excess of their Contd....

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manufacturing capacity for six months and further supplies were also likely to be outstanding with the firms. He directed that the allocation may be reworked out taking into account firm­wise capacity for six months as derived from their annual capacity as on the date of opening of the tender, supply record against last year's allocation, supplies made till date against orders on deferred payment and ad hoc orders placed earlier and benefit of tax concessions, if any, which may result in saving to DOT.

13.Sh. Narender Kumar, Director MMS, in compliance to the said directions of accused Sukh Ram, reworked the whole allocation and put up a note dated 18.10.95 giving allocation of the quantities of cables. As per the order of MOS(C) the allocation to firms were restricted to their six months' capacity which generated over flow of quantity totaling to 15.85 LCKM. Sh. Narender Kumar proposed the re­allocation of the over flow to Contd....

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the firms having spare capacity and also to the firm giving tax concessions (M/s Sterlite India Limited, Silvassa) to DOT. The capacity of M/s HTL, as on 24­1­95 i.e. the date of opening of tender was 14 LCKM. There was a back log of 2.57 LCKM from the orders placed in 1994­95. In 1995­96 an order of 4.59 LCKM (i.e. 2.37 LCKM on deferred payment and 2.22 LCKM on cash payment) was placed on them. Out of this total quantity of 7.16 LCKM, M/s HTL could supply only 3.67 LCKM up to September 1995, which was 51.26% of the orders in hand and there was a balance of 3.49 LCKM till September, 1995. As such Sh.Narender Kumar in his above mentioned note pointed out that the supply position of M/s HTL was precarious and no quantity out of over flow was recommended for allocation to this firm. Sh.Narender Kumar proposed for allocation of 120.19 LCKM since 58.56 LCKM was already purchased/ authorized for purchase ( i.e. 40 LCKM by DOT and 18.56 LCKM by MTNL Contd....

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which had authorization to purchase 18.74 LCKM). This note was finally approved by Chairman Telecom. on 24­10­95 and the file was put up to accused/Sukh Ram, MOS(C).

14.It is further alleged as per charge sheet that Accused/Sukh Ram, then Minister of State for Communication, vide his note dated 3­11­95 while approving the said allocation, as approved by Telecom Commission, dishonestly and with a view to give wrongful gain to M/s HTL enhanced the allocation quantity of 120.19 LCKM by about 10% making a total of 132.19 LCKM, without going into the financial aspect of the purchase and also without taking concurrence from the finance and out of this increased quantity of 12 LCKM he made allocation of 3.5 LCKM to HTL.

15.Thus, it is alleged that the enhancement of procurement quantity Contd....

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by 10% making further requirement of 12 LCKM was without recommendation of the department, and without considering the financial implication and further, its distribution was totally arbitrary and without justification and the quantity was allotted to the firms picked up by accused/Sukh Ram himself. It was also against the parameters laid down by accused himself in his previous note dated 30.9.95. Accused/Sukh Ram deliberately ignored the proposal of the department that the supply position of M/s HTL was precarious and the Department had not recommended for giving it any quantity out of over flow. The cost of so allotted 3.5 LCKM cable to M/s HTL comes to Rs. 30 crores approximately. Thus, it is alleged that a pecuniary advantage was wrongfully allowed by accused/Sukh Ram to M/s HTL of co­ accused/ Devinder Singh Chaudhary in this manner.

16.In view of the said allocation made by accused/Sukh Ram, M/s Contd....

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HTL was issued a letter of intent No. 203­60/94 MMS dtd. 10­11­95 for supply of 7.01 LCKM of cable which included said 3.5 LCKM. HTL was required to supply 3 LCKM to Himachal Pradesh circle, 1.24 LCKM to Haryana circle, 2.19 LCKM to J&K circle and 0.58 LCKM to MTNL, the supply of which had already been made and payment received, which included supply of said 3.5 LCKM granted by accused/Sukh Ram.

17.Central Bureau of Investigation, Special Police Establishment, while conducting search of the house of accused/Sukh Ram situated at Mandi (HP), during investigation of case No. RC­3(A)/96 - ACU(IV) on 16­8­96, seized cash amount of Rs. 1,16,51,520/­ in the form of currency notes. Out of these Govt. currency notes, an amount of Rs.3 lacs (600 currency notes of Rs.500 denomination each) was recovered in an envelop along with a visiting card in the name of aforesaid co­accused/ Contd....

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Devinder Singh, President PHD Chamber of Commerce and Industry, New Delhi, which indicated that accused/Sukh Ram obtained the said amount of Rs. 3 Lakhs form M/s HTL of his co­ accused/ Devinder Singh Choudhary, as a motive or reward for the aforesaid favour shown by him to the said firm.

18.It is further alleged in the charge sheet that accused/Sukh Ram while being a public servant in his capacity as MOS(C) in conspiracy with co­accused/ Devinder Singh Choudhary of M/s HTL, by corrupt or illegal means or otherwise abusing his official position as such public servant, obtained pecuniary advantage for himself and / or to M/s HTL of accused/Devinder Singh Chaudhary. Further accused/Sukh Ram in his said capacity/obtained a sum of Rs. 3 Lakh as a motive or reward for showing the favour in the aforesaid manner to M/s HTL of accused/Devinder Singh Chaudhary, which amount was paid to Contd....

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him by accused/Devinder Singh Chaudhary. On the basis of these facts, IO after obtaining the requisite sanction u/s 197 Cr.PC filed charge sheet. Cognizance was taken by the court.

19.Copies of documents as required U/s 207 Cr.P.C were supplied to accused and after hearing the parties, Ld.Predecessor, vide order dated 1­6­2002 framed a charge against accused Sukh Ram for the offence punishable U/s 7 and 13 (1) (d) r/w Section 13 (2) of PC Act and a charge U/s 12 read with section 7 of PC Act against his co­accused/Devinder Singh Choudhary and further a charge U/s 120B of IPC r/w Section 7, 12 and 13 (1)(d) r/w 13 (2) of PC Act against both the accused.

20.It is worthwhile to mention here that while framing charge vide order on charge dated 01.06.02, ld.predecessor had observed that investigation carried out by CBI also show that when the Contd....

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department took up further purchase of PIJF cables in April­May, 1996, it noted that supply performance of HTL upto February, 1996 was only 59.39% and the orders placed on deferred payment basis had not been executed so far, although the agreements were signed in the year 1995 but HTL had backed out from the commitments made to department to supply cables under deferred payment scheme, therefore, it was proposed by the department that orders on HTL and two other companies, whose supply position was not good, be placed only after timely and successful execution of the existing orders, but accused/Sukh Ram, the then MOS(C), vide his order dated 08.05.96 did not agree with the department and directed immediate placement of purchase order on HTL for purchase of 4 LCKM of PIJF Cable without any plausible reason. Thus, the accused was charged not only with respect to allocating 3.5 LCKM of additional PIJF cables vide order dated 03.11.95 but Contd....

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also for placing immediate order for purchase of 4 LCKM of PIJF cable vide order dated 08.05.96. Both the accused pleaded not guilty and claimed trial.

21.To prove its case prosecution examined 32 witnesses and defence side examined 19 witnesses. After defence evidence was closed on 14.09.09 and the matter was at the stage of final arguments, accused/D S Choudhary expired and vide order dated 08.01.10 passed by ld.predecessor of the court proceedings qua accused/D S Choudhary stood abated.

22.I have heard Sh.C S Sharma, Advocate, ld.Special Public Prosecutor for CBI and Sh Sh.R N Mittal, Sr.Advocate and Sh.Pawan Narang ld.defence counsels for accused/Sukhram and perused the evidence on record.

Contd....

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ISSUE OF SANCTION U/S 197 Cr.PC FOR PROSECUTION OF ACCUSED/SUKH RAM:

23. Since accused has challenged the sanction for his prosecution accorded by the President of India u/s 197 Cr.PC, therefore, I consider it appropriate to deal with the validity of the sanction for his prosecution first, as it hits the jurisdiction of the court to take the cognizance for his trial. The facts, as emerged during investigation, constituted the commission of offences of criminal conspiracy, acceptance of illegal gratification and criminal misconduct by a public servant punishable u/s 120­B IPC and Sections 7 & 13(2) read with 13(1)(d) of PC Act, 1988 by accused/Sukh Ram, therefore, the CBI requested the Central Government to accord the sanction u/s 197 Cr.PC to prosecute the accused for the said offences vide letter no.781/3/1(a)/96­ ACU(V) dated 21.03.1997 from the Director CBI addressed to Cabinet Secretary. After examining the material, the President of Contd....

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India accorded the sanction u/s 197 Cr.PC for prosecution of accused/Sukh Ram for the said offences. The sanction order, Ex.PW­26/A was authenticated by Sh.V K Malhotra, the then Joint Secretary in the Ministry of Home Affairs, Government of India.

24.To prove the sanction, prosecution examined Sh.V K Malhotra (PW­26) who had processed the file relating to the sanction and also authenticated the said sanction order after the Hon'ble President of India had accorded the sanction. He has stated that along with the said request for sanction he had received the report of SP, CBI, calender of evidence consisting of documents and statement of witnesses. The request was examined in the light of SP's report, evidence made available by the CBI and after discussion of the issue with the concerned department, Law Ministry, etc. and after having considered all the opinions, Contd....

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sanction was accorded by Hon'ble President of India.

25.The perusal of the sanction order, Ex.PW­26/A would show that it is quiet a detailed one. After discussing all the relevant facts in detail in the sanction order itself, the Central Government concluded that all the facts mentioned in the sanction order constituted offences punishable u/s 120­B IPC; Sections 13(2) r/w section 13(1)(d) and Sections 7 & 12 of PC Act, 1988.

26.Ld.Special Public Prosecutor has argued that no doubt the sanction is necessary for prosecution of a public servant as it is a safeguard against the frivolous and vexatious prosecution of a public servant from harassment, but the sanction should not be taken as a shield to protect a corrupt and dishonest public servant. He has submitted that in the instant case sanction order speaks for itself and the satisfaction of the sanctioning authority is Contd....

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apparent from reading the sanction order. He further contended that when the sanction itself is expressive, as in the present case, the argument that particular material was not properly placed before the sanctioning authority for according sanction or that the sanctioning authority has not applied its mind, becomes unsustainable.

27.The ld.counsel for the accused has assailed the said sanction order on so many grounds. He has argued that it was not a valid sanction. He has submitted that when the file of this case for according sanction was submitted before Hon'ble President, he refused to accord the same on the ground that in the opinion of the Law Ministry even the essential ingredients of offences, alleged to have been committed by accused/Sukhram, were not present and that the Hon'ble President did not agree with the opinion of Sh.K N Bhatt, the then Additional Solicitor General of Contd....

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India despite the fact that his opinion was available before him in the file when the same was put up to him for sanction but he discarded the said opinion.

28.He has further contended that when the file was re­submitted by the Home Ministry before President for granting the sanction, no fresh material was collected by the CBI and it without making any further investigation, offered the comments on the same material collected earlier. The comments dated 05.02.98 offered by Sh.S K Upadhaya, the then DIG, CBI, which were made the basis by the Home Ministry for re­submitting the file to the President for according the sanction, were nothing but the repetition of the SP report. The file was not re­submitted to Law Ministry and its opinion was not taken again and as such there was no application of mind by the sanctioning authority while according the sanction. He also argued that from the sanction order, it can not be inferred Contd....

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that the recovery of Rs.3 lacs was towards the illegal gratification for the undue favour shown by accused to HTL in matter of allocation of 3.5 LCKM of the cable to it and thereby to cause undue pecuniary advantage to it. He has also argued that since the sanction order does not mention even a word about the second part of charge framed by the court against the accused in respect to the allocation of 4 LCKM of the cable to HTL, therefore, the court was not competent to frame the charge with respect to this allegation, and consequently the trial as regards the second allegation is vitiated. To strengthen his submission, he has relied upon judgment cited as Gokul Chand Dwarkadas Morarka Vs. The King, Indian Appeals, JC 1948 {(LR) Vol.LXXV} 30. He has also alleged that the sanction is politically motivated. He also submitted that because of change in Union Government the President, without applying his mind, accorded the sanction when the file was re­submitted without any fresh and further material. It Contd....

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is thus submitted by ld.defence counsel that Sh.K N Bhatt was appointed, Additional Solicitor General of India during the tenure of Sh.Atal Bihari Vajpai as Prime Minister, therefore, the opinion of the said ASG dated 17.07.97 was politically motivated and was obtained only in order to maliciously prosecute accused/Sukhram.

29.Ld.Special Public Prosecutor has countered all the points raised by the ld.counsel for the accused and taken the court through the evidence on record to show that the President never refused the sanction but had only asked the Home Ministry to examine and meet the points raised by the Law Ministry. The Hon'ble President never asked to get the case further investigated and to bring additional material when the file was to be re­submitted before him for sanction. Ld.Prosecutor has vehemently refuted the allegation that the sanction was politically motivated. According to him when the proposal was sent for the first time to the Contd....

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President, Sh.I K Gujral was the Prime Ministry and Sh.K R Narayanan was the President and this position did not change when the sanction to prosecute accused/Sukh Ram was finally accorded and, therefore, there is no justification to the accused to assert that it was politically motivated. As regards to the framing of the charge for allegation of allocation of 4 LCKM to HTL and subsequent trial thereof, for this allegation, he has submitted that the ld.predecessor of the court had taken the cognizance of the offence punishable u/s 13(2) r/w Sec.13(1)(d) of the PC Act, 1988 in respect to allegation of allocation of 3.5 LCKM of the cable and while examining the case for framing of charges, he found sufficient material for yet another allegation in respect to allocation of 4 LCKM committed in the same transaction. According to ld.Special Public Prosecutor cognizance is taken by the court of the offence and not of the accused or allegation. Therefore, according to him, the court was justified and was Contd....

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competent to include the said allegation in that charge and subsequent trial of the accused on the said allegation was valid. To buttress his argument he has relied upon a recent judgment of the Hon'ble Supreme Court titled as Kuldeep Sharma Vs. State of HP, 2011 III AD (CRI) (SC) 9 para 11.

30.The contention of the ld.counsel of the accused is that the Hon'ble President, in view of the opinion of the Law Ministry, refused to accord the sanction when the case for sanction was put before him for the first time.

31.To buttress his arguments, he has also relied upon judgment cited as State of HP Vs. Nishant Sarin, Crl.Appeal No.2353 of 2010 decided by Hon'ble Supreme Court on 09.12.2010, wherein it was laid down by Hon'ble Supreme Court that if the sanctioning authority has once refused to sanction the Contd....

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prosecution of accused, it can not subsequently change its opinion and order sanction to prosecute the accused on the same material.

32.To appreciate this point properly, it would be necessary to examine the remarks made by the Hon'ble President on the file when he returned it for meeting out the points raised by the Law Ministry. The defence, in order to prove that the Hon'ble President had refused the sanction, got the said file summoned from the Ministry and examined Sh.Neeraj Kansal, Director, Central State Division, Ministry of Home Affairs, New Delhi (DW­19). The remarks made by the President when the file was submitted before him (page no.4 of examination­in chief of DW­19 dated 31.03.09) are reproduced below;­ "I have examined the papers in the Ministry of Home Affairs, File No.10/6/97­MNG in relation to the proposed sanction for the prosecution of Sh.Sukh Ram, former Contd....

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Minister of State for Communication. I find that the Department of Legal Affairs in the Ministry of Law and Justice had in its earlier observation, entertained strong and emphatically worded reservations in the matter. It had even gone to the extent of observing "...... the material as brought out in the referring note falls short of essential ingredients of the offence alleged to have been committed by Sh.Sukh Ram, and as such, there does not appear to be a prima facie case for grant of the sanction for prosecution of Sh.Sukh Ram." There is nothing on the file to show that the reservation expressed by the Department of Legal Affairs in the earlier stage of its examination of the case have been addressed. Before a case for sanction is presented, it would be necessary that all those observations are thoroughly addressed even though it may not be necessary to go into minute of evidence.

The case may be examined in the light of the above and paper re­submitted.

(Emphasis supplied) Sd/ (President of India) 24.12.1997"

33.On the basis of the above remark, the ld.counsel for the accused has concluded that the Hon'ble President had refused to accord the sanction. I am afraid that this conclusion can not be drawn by Contd....

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any stretch of imagination. If the sanctioning authority had refused to accord the sanction, he would have rejected outrightly the proposal of sanction. It had no reason to write that the case be examined in the light of the aforesaid remarks and paper be re­submitted (emphasis supplied). What the sanctioning authority wanted was that the objections raised by the Law Ministry should be addressed to i.e should be explained for the material collected during the investigation and that too without going into the minute of the evidence.

34.It would not be out of the place to mention that on the same material which was placed before the sanctioning authority, this court found that a prima facie case is made out for the offences punishable u/s 120­B IPC under sections 7, 13(2) r/w Section 13(1)(d) of PC Act, 1988 and that order has become final. Therefore, when the file was re­submitted by the Home Ministry, Contd....

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after meeting out the objections raised by the Law Ministry, then only the Hon'ble President had accorded the sanction for prosecution of accused/Sukh Ram. Here, it would not be out of context to say that even Hon'ble President did not agree with the opinion of the Law Ministry. Had he agreed with the said opinion of the Law Ministry, he would have rejected the proposal then and there. In that situation, he had no justification to ask the Home Ministry to re­submit the file after meeting out the objections raised by the Law Ministry. It may be mentioned that from the statement of Sh.V K Malhotra (PW­26) and Sh.Neeraj Kansal (DW­19), it is quiet clear that the sanction was never refused by the Hon'ble President, at any stage. It may be inferred from the aforesaid note that the sanctioning authority simply wanted certain doubts, created by the Joint Secretary of the Law Ministry, removed.

Contd....

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35.Next point raised by the ld.counel for defence is that the Home Ministry without any fresh material or further investigation by CBI re­submitted the file before the sanctioning authority. The Home Ministry, after the receipt of the aforesaid remarks by the President, sent the letter Ex.PW­26/DA=Ex.PW­26/DAA along with the said comments offered by the Law Ministry, Ex.PW­26/DB and the opinion of Sh.K N Bhatt, the then Additional Solicitor General of India, Mark 'X' (true copy is compared from original during cross­examination of PW­26 on 27.07.07) and asked for its comments. Sh.S K Upadhaya, the then DIG, CBI offered parawise comments vide his note, Ex.PW­26/DC=Mark'C' and met all the objections of the Law Ministry. I am not able to fathom as to how the ld.counsel for the accused gathered the impression that the file was to be re­ submitted to the President only after the fresh material had emerged. On the contrary, from the aforesaid remarks, it is quiet Contd....

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apparent that he wanted the file to be re­submitted after meeting out the objection raised by the Ministry. He, vide his said remarks, had made it clear that it may not be necessary to go into minutes of the evidence. This makes it abundantly clear that he sought the clarification on the existing evidence.

36.It has also been argued by the ld.defence counsel that the Home Ministry, after the receipt of comments from CBI and before re­ submitting the file to the Hon'ble President, did not send the file to Law Ministry again for its further opinion and the sanctioning authority without applying its mind accorded the sanction. This argument is having no force. Nowhere, the sanctioning authority had directed the Home Ministry that the file be re­submitted before him only after having got examined from the Law Ministry. Even otherwise, from perusal of evidence on record, it transpired that this matter was examined at the level of Minister of State in Contd....

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the Law Ministry, who was in agreement with the opinion of Additional Solicitor General. Sh.Neeraj Kansal, Director, Central State Division, Ministry of Home Affairs (DW­19) in his cross­ examination has proved the note sheet of the said file from 18.02.98 to 27.03.98 (Ex.DW­19/P1). On page 46 of the said note sheet there is a note dated 24.02.98 recorded by Sh.R D Kapur, Additional Secretary (Home). In the said note he has very specifically mentioned that "The Minister of State for Law & Justice is in agreement with the opinion of the Additional Solicitor General." This statement of the Additional Secretary in his above said note makes it abundantly clear that after return of the file by the President, the Home Ministry had consulted the Law Ministry before re­submitting the case to the Hon'ble President for according sanction u/s 197 Cr.PC. Therefore, the said contention of the ld.defence counsel, even assuming for the sake of argument that the Home Ministry should have consulted the Law Contd....

36

Ministry before re­submission of the file to the Hon'ble President, becomes redundant.

37.It has been further contended that the sanction to prosecute accused/Sukh Ram was politically motivated, therefore, there was no application of mind. Sh.V K Malhotra (PW­26) who processed and authenticated the sanction order was cross­examined in that direction. It was suggested to this witness that the opinion of Sh.K N Bhatt was politically motivated and was obtained to malign and maliciously prosecute accused/Sukh Ram. This argument appears to be imaginary and away from the facts proved on record. Sh.Neeraj Kansal (DW­19) during his cross­ examination by ld.Special Public Prosecutor has stated that Sh.I K Gujral was the Prime Minister and Sh.K R Narayanan was the President when the proposal was sent for the first time to the President to accord the sanction and that this position did not Contd....

37

change when the sanction was finally accorded. Moreover, the accused in his statement u/s 313 Cr.PC nowhere has stated that the sanction was politically motivated.

38.The last point that was contended by the ld.counsel for the accused is that the sanction was not accorded with respect to the allegation of undue allocation of 4 LCKM to HTL by accused/Sukh Ram to cause undue pecuniary advantage to it and, therefore, the court was not competent to frame the charge and try the accused for this allegation. According to him the trial in respect to tis allegation was without jurisdiction. For this purpose, he has heavily relied upon judgment of Privy Counsel in Gokul Chand Dwarkadas Morarka Vs. The King, Indian Appeals, JC 1948 {(LR) Vol.LXXV} 30. But careful perusal of the said judgment leads to a conclusion that this authority helps the prosecution rather then helping the accused in any manner. The Hon'ble Contd....

38

Court had observed "the giving of sanction confers jurisdiction on the court to try the case and the judge or magistrate having jurisdiction must try the case in the ordinary way under the Code of Criminal Procedure. The charge need not follow the exact terms of the sanction, though it must not relate to an offence essentially different from that to which the sanction relates."

39.To appreciate the point it would be necessary to have a look of Section 197 Cr.PC, 1973. It provides that no court shall take cognizance of an offence without the sanction of the Government. The court takes the cognizance of an offence and not of offender or the allegation. If the sanctioning authority has accorded the sanction in respect an offence, and if in the same transaction of that offence for which the sanction has been accorded, some other facts also emerge which make out the same offence, in such a situation, in my opinion, it would not be possible for the Contd....

39

court to ignore that allegation. The court would be justified and competent to frame the charge and try that allegation. Further where sanction has been accorded for the offence of conspiracy and there is no direct evidence for the commission of offence of conspiracy and the commission of this offence is to be inferred from the attending facts and circumstances including the acts amounting to commission of the offence committed by the accused persons, it would cover all the acts which were committed in the same transaction. In the instant case the sanctioning authority accorded the sanction for the offence of conspiracy punishable u/s 120­B IPC, therefore, this court was having the jurisdiction to frame the charge and try the accused for the allegation of allocation of 4 LCKM to HTL as this allegation is a part of the same transaction and does not relate to an offence essentially different from that to which the sanction relates.

Contd....

40

40.This issue can be viewed from a different angle also. The general law is that the court is competent to take the cognizance of any offence. Section 197 Cr.PC, which provides for sanction from the competent authority without which the court can not take cognizance of an offence against the public servant, is an exception to this general rule. Therefore, it is necessary to keep in mind the object of sanction. The object of sanction has been to provide the protection to the public servant from frivolous and vexatious prosecution. Once this aspect has been gone through by the sanctioning authority who has accorded the sanction to prosecute the public servant, it would mean that the prosecution against the public servant is not frivolous and vexatious. In this context it would be appropriate to quote the observation made by the Hon'ble Supreme Court in the case C S Krishanamurthy Vs. State of Karnataka, reported as II (2005) CCR 35 (SC):­ "It is no doubt true that the sanction is necessary for every prosecution of public servant, this safeguard is Contd....

41

against the frivolous prosecution against public servant from harassment. But the sanction should not be taken as shield to protect the corrupt and dishonest public servant."

41.Similar problem arose before the Hon'ble Supreme Court in a recent case titled as Kuldeep Sharma Vs. State of HP and Anr., reported as 2011 III AD (CRI) (SC) 9. In this case the accused persons who were posted as Asstt.Engineer and Junior Engineer in the Irrigation and Health Department of the Government of Himachal Pradesh were prosecuted and convicted for the offences punishable under sections 467, 468, 471, 420 & 120­B IPC and also for offence under section 5(2) of the PC Act on the allegation that the accused persons entered into criminal conspiracy and prepared false muster roll nos.146 and 230 in which names of casual labourers, who were not engaged, were inserted. Sanction for prosecution of the accused was accorded for the offences punishable under sections 409, 465, 467, 468, Contd....

42

471, 201, 511 and 120­B of IPC as also for offence under section 5(2) of the PC Act for preparing false muster roll no.146 only. On those facts the Hon'ble Supreme Court did not quash the conviction of the appellant in relation to muster roll no.230. The relevant paragraph is extracted from the said judgment and is re­ produced as under:­ "Mr.Panda, then submits that the State Government while granting sanction has taken into account the entry of fictitious names of casual labourers in muster role no. 146 but the charge was framed in respect of muster roll no.230 and, therefore, the conviction of the appellant is vitiated on this ground alone. The submissions need not detain as such. As stated earlier, the appellant has been convicted for his role in relation to muster roll nos. 146 and 230. Admittedly, while sanctioning prosecution, the role of appellant in relation to muster roll no.146 has been adverted to. Therefore, his conviction can not be held to be illegal only for the reason that no reference was made to muster roll no. 230 in the sanction order." (Para 11)

42.In view of above discussion, it would be a futile effort to dwell on this point any further. To conclude, the sanction order, evidence Contd....

43

of S/Sh.V K Malhotra and Neeraj Kansal and the documents got proved by the prosecution and defence show that the sanction was accorded by the Hon'ble President after applying his mind and no fault can be found with it.

IMPLICATIONS OF ORDER DATED 16.07.1993 (Ex.PW­10/D­10) PASSED BY ACCUSED/SUKH RAM TO PUT UP EVERY CASE TO HIM BEFORE THE ISSUANCE OF PURCHASE ORDER.

43.Before discussing the allegations of accepting or obtaining the gratification other than legal remuneration amounting to Rs.3 lacs by accused/Sukh Ram from his co­accused/D S Choudhary (since deceased) and abusing his position as public servant by allocating additional quantity of 3.5 LCKM PIJF Cables and directing the immediate placement of purchase order of 4 LCKM PIJF Cables on HTL to cause pecuniary advantage to his co­ accused, it would be desirable and appropriate to discuss the implications of the order dated 16.07.1993, Ex.PW­10/D­10 Contd....

44

(D­53) passed by accused/Sukh Ram as Minister of State (Communication). Accused/Sukh Ram functioned as Minister of State (Communication) with independent charge from 18.01.93 to 16.05.96. He, in that capacity, passed the aforesaid order dated 16.07.93 that before the issue of purchase order, every case be put to him. The relevant portion of the said order is extracted and is reproduced hereunder:­ "After the finalization of every tender and before the issue of purchase orders, every case may be put up to me with a note from the Chairman (TC) giving summary of the history of the case and explaining the delays in time taken for finalization of that tender."

44.The ld.Special Public Prosecutor has submitted that real purpose of this order dated 16.07.93 was to create an opportunity to indulge into malpractice which shows the propensity of accused/Sukh Ram towards commission of such offences covered under PC Act. On the other hand, ld.counsel for the accused has contended that this order is an innocuous order and Contd....

45

no oblique motive can be attributed to the accused when he passed this order. According to him this order (Ex.PW­10/D­10) shows the anxiety of the accused about the difficulties faced by the field staff due to the delayed supplies of the equipments and that the contents of this order does not make out commission of any offence by the accused. According to him, this order was a policy decision which the accused, as a Minister, was competent to pass. He has further contended that accused was not the only Minister who passed such an order and that even prior to this, his predecessors had also passed such orders. In order to buttress his contention he has relied upon Annexure11.1 at page 55 of the Telecom Commission Manual, Ex.PW­1/D­1 (D­43) wherein an earlier Minister of State (Communication) laid down certain guidelines which were to be followed in connection with the distribution of the quantity of the stocks to be purchased through the tenders.

Contd....

46

45.The contention of the ld.defence counsel is not at all tenable. At first glance the order dated 16.07.93 (Ex.PW­10/D­10) appears to be innocuous and one can gather an impression that it was passed to bring efficiency in the working of department and to redress the grievances of field officers who had been complaining about the delay in the supply of equipments and materials which hampered the development of Telecom facilities. In his (accused's) view the important parameter which used to cause the said situation was the abnormal delays in finalizing the tenders at headquarters. But perusal of the subsequent events and the statement of witness Sh.R K Takker (PW­2) would falsify the contention of the defence. The expeditious finalization of the tender was only a pretext as the same delay in finalization of the tenders continued even thereafter. It transpires that by passing this order, accused/Sukh Ram created an opportunity to indulge Contd....

47

in corruption and to extend undue favour to the parties with oblique motive. In the case at hand, as is apparent from the Notice Inviting Tender (hereinafter mentioned as NIT) Ex.PW­1/1 (page 124/C in D­5) and the statement of PW­1/Sh.Om Parkash Bibra, the NIT for procurement of 352 LCKM of PIJF Cables for two years i.e. 1995­96 and 1996­97 was issued on 30.11.94 but it was not finalized even upto October 1995 as is clear from the notings dated 30.09.95 (Ex.PW­2/8) and 03.11.95 (Ex.PW­2/9) and the Letters of Intent were issued by the department only on 10.11.95 for the supply of cables against this tender. The accused did not enquire or got enquired into the causes for such an inordinate delay in finalization of the tender and as to the officers who were responsible for it. Failure on his part to take notice of this delay leads to irresistible conclusion that the said order, Ex.PW­10/D­10 was not passed by him to streamline working of the department for expeditious finalization of the Contd....

48

tender but it was passed with an oblique motive to cause undue favour by abusing his position as public servant thereby causing undue pecuniary advantage to himself and/or to other persons. Moreover, the job of a Minister was to formulate the policies for efficient workings and not to indulge in such matters as putting up every purchase order to him before it was issued. In this regard the statement of Sh.R K Takkar, the then Chairman of Telecom Commission (PW­2) is material. The relevant portion of the statement of sh.R K Takkar (PW­2) is re­produced hereunder for better appreciation of this issue:­ "It is correct that MOS (C) is above the Commission. It is correct that the Minister had the power to take decision under the Transaction of Business Rules, 1961. Que.Is it correct that as per Government of India (Transaction of Business) Rules, 1961, the Minister was fully competent to take decision as far as Ministry was concerned and it is to be treated as decision of Cabinet. Ans.The Executive Order by the Government of India setting up Telecom Commission did not envisage any role for MOS (C) in the purchase of stores, etc. When Sukh Contd....

49

Ram joined as MOS (C) he issued an order that supply orders should be placed with his prior approval. Strictly speaking, the order passed by him was contrary to the order issued by the Government of India in respect of Telecom Commission. Department of Telecommunication was organized in a different manner than other departments when Telecom Commission was set up, its relationship vis­a­vis­­­ the Minister were defined in the order whereby it was set up and the role of the Minister was confined to lay down policies and issuing directions on policies." (emphasis supplied) (Pages 11 & 12 of cross­ examination of PW­2 dated 01.07.02 before lunch break).

46.This answer was given by the witness in his cross­examination and this fact was not refuted by the accused by putting any suggestion to the witness to the contrary. It is noteworthy that this document, Ex.PW­10/D­10 was got proved by the defence in the cross­examination, therefore, the accused can not escape from its ensuing consequences.

ALLEGATION RELATING TO THE ALLOCATION OF 3.5 LCKM BY THE ACCUSED TO M/s HARYANA TELECOM LIMITED

47.As per prosecution case the accused/Sukhram is alleged to has Contd....

50

committed the offences under the Indian Penal Code and the Prevention Corruption Act, 1988 in respect to Tender No. 14­21/94­MMT(MMS) dated 30.11.1994. The relevant orders passed by accused/Sukh Ram which make out the commission of the said offences are dated 30.09.95 and 03.11.95. It would be proper to mention the relevant facts which would facilitate us to understand the implication and intricacies in the case which would crop up from time to time while analyzing the facts and appreciating the evidence which has emerged during the trial of the case.

48.The Department of Telecommunications of Ministry of Communication, Government of India floated the tender vide Tender Enquiry No.14­21/94­MMT (MMS) dated 30.11.94 for the procurement of 352 LCKM of PIJF Cables for MTNL and DOT for the years 1995­96 and 1996­97. Initially the date of receipt of the Contd....

51

tenders and their opening date was fixed as 19.01.95 but the same was extended to 24.01.1995.

49.The procedure for the procurement of the cables was that on receipt requirements of cables from different circles of DOT, a NIT used to be prepared, issued and published in the newspapers. In response to same, the tender bids were required to be submitted within the stipulated period of time as given in NIT. A committee used to be constituted by the department to open the bids received in response to NIT and the bids were opened in the presence of all the members of the Committee as well as in the presence of all the bidders (Ex.PW­1/1 NIT at pages 176/C and 177/C of D­5, PW­1 and PW­5, pages 1 of examination­in­ chief).

50.Accordingly a Bid Opening Committee comprising of 1.Sh.A K Contd....

52

Jedhke, ADG (ST) (PW­5); 2.Sh.O P Bibra, ADG (MMY) (PW­1) and 3.Sh.Vijay Rajpal, AD (MMY) was constituted (PW­5/A K Jedhke page 1 of examination­in chief and Ex.PW­1/3 Bid Opening Minutes placed at page 10/C of D­5).

51.In response to the above NIT as many as 27 bids were received from different parties which also included the bid from M/s Haryana Telecom Ltd. (HTL). Out of these 27 bids, only 18 bids were considered eligible and the remaining 9 bids were not taken into consideration for various reasons which have been assigned in the Bid Opening Minutes. Bid Opening Minutes, Ex.PW­1/2 was prepared by the Bid Opening Committee and the same was signed by all the members of the committee. Copy of Bid Opening Minutes was sent to Tender Evaluation Committee along with the bids of 18 parties including the bid of HTL {PW­1 and PW­5, page 1 of examination­in chief of both the witnesses Contd....

53

and Ex.PW­1/2 (list of bids at page 10/C to 12/C of D­5) and Ex.PW­1/3 (Bid Opening Minutes at page 10/C to 13/C of D­5)}.

52.A Tender Evaluation Committee (in short TEC) comprising of

1.Sh.D B Sehgal, Advisor (P) as Chairman; 2.Smt.Shaukat Ara Tirmizi, DDG (PF) and 3.Sh.Arun Kumar, DDG (MM­II) as members was constituted with the approval of Member (F) and Member (P). These bids of eighteen parties were examined by the said committee. It submitted its report, Ex.PW­2/D­6 which was signed by all the members (PW­5 and PW­6 and Ex.2/D­6 Tender Evaluation Committee Report placed at pages from 1/C to 9/C of D­5).

53.TEC held a number of meetings. TEC while evaluating the bids considered the commercial aspect, pricing, budgetary provisions Contd....

54

and requirement of the department (Ms.Shaukat Ara Trimizi, PW­6). It first examined the rates which were inclusive of all taxes and levies. Thereafter, they calculated bidding of the vendors as L.1, L.2 and onwards. L.1 was considered as lowest tenderer and as per the terms and conditions of the tender 20% to 50% of the quantity was to be allocated to the lowest bidder. If the allocation, after applying this criteria, exceeded the installed capacity of the vendor as determined by the Telecom Engineering Center, the TEC restricted allocation to the vendor to its installed capacity. However, since vendor may not be in a position to supply the cables as per its installed capacity, the performance of the vendor during last six months was seen. In order to arrive at its annual capacity, the TEC doubled the figures which were worked out on the basis of six months performance. In case installed capacity of the firm exceeded its performance, it was restricted to the performance of the firm.

Contd....

55

54.The TEC after applying the said guidelines, gave its recommendation to the competent authority regarding the quantities to be allocated to various bidders (Pages 1 & 2 of examination­in chief of PW­10). The TEC Report, Ex.PW­2/D­6 also mentions in detail the guiding factors which were kept in its mind by the TEC members while recommending the allocation of cables to each vendor. The same have been mentioned in para 5 under the caption 'Allocation of Quantities.' The relevant portion is reproduced below:­ "5.3 Final Allocation:

(ii) As per para 5 of Section IV of the bid document, order for 20%­50% of the tendered quantity may be placed on the technically and commercially responsive bidder whose price is determined as the lowest but subject to the manufacturing capacity as ascertained by the purchase.

The manufacturing capacity of the various bidders as ascertained by the Telecom Engineering Center is given in Contd....

56

Annexure VI. However, it is seen that in the past some of the manufacturers have not been able to supply the full quantity ordered on them even though their rated manufacturing capacity was higher. The TEC is, therefore, of the opinion that for determining the realistic manufacturing capacity of each bidder, twice its best performance during the last 6 months period (i.e.October, 1994 to March, 1995) may be taken into consideration." (Ex.PW­2/D­6, Page 5/C of D­5).

55.The tender as stated above was floated for 352 LCKM, however, while deciphering the size­wise quantities of different size of cables in KMs as approved and included in the bid document, the total LCKM was worked out to 359.29 LCKM. The TEC recommended the allocation of 178.93 LCKM for the year 1995­96 and 179.05 for 1996­97 to the bidders whose bids were forwarded to it.

Contd....

57

56.Keeping in view the aforesaid guidelines and on the basis of rates quoted by HTL, the TEC worked out allocation of 35.93 LCKM cables for two years i.e. 1995­96 and 1996­97 to it, but the supply position of this firm was found to be very poor during the year 1994­95 (as is apparent from Annexure X of the TEC report which is Ex.PW­10/1 (placed at page 34/C of D­5). The said Annexure X to the report shows that HTL had supplied 4.82 LCKM during the period October, 1994 to March, 1995 and in the whole year i.e. 1994­95, total supplies were only 6.81 LCKM although installed capacity of HTL, on the date of opening of tender i.e. on 24.01.95 was 14 LCKM and at the time of TEC report it was 24 LCKM. Therefore, TEC, based upon the aforesaid formula, worked out a total quantity of 9.64 LCKM to be allocated to HTL for supply for the year 1995­96. A complete detailed distribution of the cable for all the vendors for the year 1995­96 and 1996­97 has been given in Annexure XIII Contd....

58

(Ex.PW­2/D­7 at page 76/C of D­5) of the TEC Report. Finally, the TEC in its report, Ex.PW­2/D­6 (placed at page 8/C of D­5) recommended the allocation of 9.64 LCKM for the year 1995­96 and 17.96 LCKM for the year 1996­97 to HTL.

57.At this stage, it would be pertinent to discuss the manufacturing capacity of HTL as it is having its relevance in substantiating the first allegation of abusing the power by accused/Sukh Ram as public servant in causing undue pecuniary advantage to HTL by allocating an additional quantity of 3.5 LCKM cables to it. It is evident from Annexure VI dated 06.03.95, Ex.PW­2/D­5 (placed at page 25/C of D­5) of the TEC Report which mentions the production/manufacturing capacity of PIJF Cables manufacturers. The manufacturing capacity of HTL was 14 LCKM on the date of opening of tender but it was increased to 24 LCKM in view of the letter dated 01.06.95 (Ex.PW­28/D­2 at page 26/C of D­20) from Contd....

59

Telecommunication Engineering Center to M/s HTL in response to the letter dated 25.04.95 of the firm. The relevant portion of the said letter dated 01.06.95 is re­produced below:­ "With the addition of these machines the manufacturing capacity of M/s Haryana Telecom Limited, Rohtak is considered adequate to manufacture 24 LCKM of PIJF Cables per annum."

58.Thus, the capacity of M/s HTL to manufacture on the date of opening of the tender i.e on 24.01.95 was only 14 LCKM and its capacity to manufacture increased to 24 LCKM from 01.06.95.

59.The report submitted by the TEC was processed in file no. 203­60/94/MMS (Ex.PW­5/1). Since the acceptance of the report would have taken considerable time, therefore, ad­hoc procurement of 58.56 LCKM cables was authorized to Telecom circles and MTNL against cash. Thereafter, there remained the Contd....

60

balance of 120.37 LCKM (178.93 LCKM as recommended by TEC for 1995­96 - 58.56 LCKM) to be purchased on cash. Since MTNL had purchased 0.18 LCKM less than its authorized quantity, therefore, the total requirement for purchase in cash came down to 120.19 LCKM.

60.It may be mentioned here that the purchase of quantity of 359.29 LCKM against the said tender, as recommended by TEC for the years 1995­96 and 1996­97 was approved by Member (F), Member (P) and Chairman Telecom Commission vide their noting, Ex.PW­2/D­3, PW­13/3 and PW­2/2 respectively (placed at D­5 at pages 7/N and 10/N). Sh.Joseph, Member (Finance) in his said note, Ex.PW­2/D­3 (page 7/N of D­5) has categorically mentioned that recommendation made by TEC for two years was approved. It reads as follows:­ Contd....

61

"Prices and supplier wise allocation (for two years) as recommended by TEC approved. Quantity to be procured in 1995­96 as proposed at P.6 ante."

61.The Member (P) and Chairman of Telecom Commission concurred with this approval vide said Ex.PW­13/3 and PW­2/2. Further, the note dated 19.09.95 (Ex.PW­13/D­6 placed at page 11/N of D­5) recorded by Sh.R P Hans also shows that the action for procurement of only 178.93 LCKM for the year 1995­96, as recommended by TEC and approved by Member (P), Member (F) and Chairman Telecom Commission was initiated and processed. The said note is also reproduced below:­ "The case was discussed in the TC Meeting on 15.09.95 pending decision regarding utilization of additional funds likely to be available on account of license fee from cellular/basic services­­­­ by private operators, we may take action for procurement of 178.93 LCKM of PIJF cables in cash as approved on P/P(5N­9N). Please put up with supplier­wise­circle­wise details proposed for placement of POs."

Contd....

62

62.Accordingly, a chart mentioning the proposed supplier­wise and circle­wise allocation for the total of 178.93 LCKM cables was prepared. This allocation included the quantity of 54.74 LCKM which, on being authorized by the Telecom Communication, was purchased from these suppliers by different Telecom Circles on ad­hoc basis against cash. The chart Ex.PW­14/6 was placed in the file Ex.PW­5/1 (D­5 at page 161/C). Sh.R P Hans, vide his note dated 26.09.95, Ex.PW­2/D­4 (in D­5 at page 13/N) placed the proposal before MOS (C) (the accused) for approval of allocation of the aforesaid quantity i.e. 178.93 LCKM to the suppliers as approved by the TEC and different Telecom Circles.

63.The accused was not satisfied with the aforesaid proposal for allocation of 178.93 LCKM of the cables for the year 1995­96 to those suppliers as their capacity and performance was not taken Contd....

63

into account. He returned the file without approval with a direction to put up the file after working out the allocation to the suppliers according to the parameters detailed by him in his note dated 30.09.95, Ex.PW­2/8 (D­5 placed at page 14/N). Since this order is one of the aforesaid two orders passed by the accused which facilitated him in alleged commission of offence, therefore, it is being reproduced hereunder:­ "From the perusal of the preceding notes, it has been observed that the allocation of 178.93 LCKM for the year 1995­96 has been proposed without taking into account the capacity and performance of the manufacturers. Barely six months are left now for the supplies to be effected within the current financial year so as to fulfill this year's targets, but orders proposed on some firms are far in excess of their capacity for six months. Further, supplies are also likely to be pending with the firms from earlier orders placed in this year. The allocation, therefore, has to be worked out taking into account firm wise capacity as on date of opening of the tender, supply record against last year's allocation, supplies made till date against orders on deferred payment and ad­hoc orders placed earlier this year and benefits of tax Contd....

64

concession, if any, which is likely to result in savings for DOT.

The performance of HCL as per statement placed on the file has not been satisfactory. So they may be given the quantity as proposed by TEC. The case may please be put up to me within a week after working out firm wise re­ distribution, taking into account the above facts.

Signature (Sukhram) 30/9"

(emphasis supplied)

64.It would be pertinent to mention here that co­accused/D S Choudhary had assumed the charge as Chairman of HTL from September, 1995 as is shown by document no.45 (admitted document) which is a certified copy of the resolution dated 05.09.95 passed by Board of Directors of M/s HTL. By this resolution, accused/D S Choudhary was elected as Chairman of M/s HTL. It has been submitted by ld.Special Public Prosecutor that due to proximity of accused/Sukh Ram with co­accused/D S Choudhary, who had by then become Chairman of HTL, Contd....

65

accused/Sukh Ram started giving undue dividends in the matter of allocation of cables to M/s HTL.

65.In compliance to the above order dated 30.09.95, the department worked out the re­distribution to each vendor in accordance with the parameters given by the accused. For re­distribution of the said quantity, a detailed chart, Ex.PW­5/6 (at page 194/C of D­5) was prepared. Following are the columns of the chart:

(1)Sl.No. (2) Name of the vendor (3) Quantity ordered (LCKM) in 1994­95 (4) Quantity supplied (LCKM) in 1994­95 (5) % of supply (6) Backlog from 94­95 (7) Quantity ordered (LCKM) during 1995­96 under deferred payment (8) Quantity ordered (LCKM) during 1995­96 against cash payment (9) Total quantity ordered (6+7+8) (10) Quantity supplied from April to September, 1995 (11) % of the quantity ordered (12) Balance quantity (9­10) (13) Installed capacity for 12 months at the time of opening of tender (14) Installed capacity for 6 months at the time of opening of tender (15) Allocation as per recommendation of TEC for balance quantity of 120.19 LCKM (16) Overflow i.e (12+15)­(14), (17) Distribution of overflow (18) Revised allocation after distribution of overflow.

Contd....

66

66.The position of M/s HTL is given below:­ 1 2 3 4 5 (%) 6 7 8 9 10 11 (%) 12 13 14 15 16 17 18 13 HTL 9.68 7.11 73.45 2.57 2.37 2.22 7.16 3.67 51.26 3.49 14 7.00 7.42 3.91 0.00 3.51

67.This chart, Ex.PW­5/6 was placed in the file which is at page 194/C of D­5.

68.Sh.Narendra Kumar (PW­14) while giving out the details as to how the re­distribution had been worked out, recorded the note dated 18.10.95, Ex.PW­2/D­1 (Page 15/N and 16/N of D­5). In this note Sh.Narendra Kumar had pointed out that the supply position of M/s HTL and M/s HCL remained precarious. Therefore, it was proposed not to award any overflow on them. The chart and this proposal in file Ex.PW­5/1 (D­5) was submitted to the accused/Sukh Ram for approval.

Contd....

67

69.The accused as Minister of Communication vide his order dated 03.11.95, Ex.PW­2/9 (placed at page 17/N of D­5) approved this proposal which was put up to him but he increased the total quantity of 120.19 LCKM by 10% to 132.19 LCKM. The reason given by the accused for this increase was that with that criteria certain vendors have been adversely affected. Therefore, he passed the order that the increased quantity of 12 LCKM may, in view of their performance and effective distribution of overflow, be distributed amongst five vendors viz. M/s TCL, M/s FINOLEX, M/s RPG, M/s UBL and M/s HTL. The Minister (accused) by this order gave 3.5 LCKM to M/s HTL, out of this increased quantity. Since the prosecution has alleged that there was no justification to the accused for the allocation of extra quantity of 3.5 LCKM to M/s HTL especially when its supply position was precarious and it was not fulfilling its previous commitments and this allocation of the extra quantity was to cause pecuniary advantage to his co­ Contd....

68

accused and/or to himself by abusing his official position as a public servant, therefore, the said order is reproduced, as under:­ "It has been observed that SIIL has been proposed allocation of 11.28 LCKM in the distribution of the total overflow of 15.85 LCKM. With a view to be fair with the firms which have been affected by the application of criteria detailed in the preceding notes, the total quantity of 120.19 LCKM may be increased by about 10% to 132.19 LCKM. The increased quantity of 12 LCKM may, therefore, be distributed amongst the following firms in view of their performance and effective distribution of the overflow:­ LCKM TCL 1.0 FINOLEX 4.0 RPG 2.0 UBL 1.5 HTL 3.5 TOTAL 12.0 The proposal submitted is approved with above modification.

The total quantity required for the revised targets and additional cable required for maintenance and planning purpose is 387 LCKM. After issue of this order as Contd....

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approved, action may be taken for procurement of balance quantity, the allocation for which may be worked out early th and put to me by 30 November, 1995 for approval.

Signature 03/11/95 (SUKH RAM)

70.The said order passed by the accused was complied with by the department immediately. Accordingly, a Letter of Intent, Ex.PW­5/10 (placed at page 235/C of D­5) for procurement of a quantity of 9.23 LCKM (2.22 LCKM - ad­hoc purchase + 3.51 LCKM recommended by the department + 3.5 which was increased by the accused) of cables was issued to M/s HTL.

71.It has been submitted by the prosecution that Sh.R P Hans in the note dated 26.09.95, Ex.PW­2/D­4 recorded that because of revised requirement, a total quantity of 387.15 LCKM was worked out for the year 1995­96 for procurement. He also noted that TEC had recommended that 173.93 LCKM might be purchased on cash basis for 1995­96 and this proposal had been approved Contd....

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by Member (P), Member (F) and Chairman (TC). As desired by the Chairman (TC) he put up this note along with chart (Ex.PW­14/6 placed at page 161/C of D­5) showing supplier wise allocation of this quantity placed before the accused for approval. The accused did not approve the allocation of 178.93 LCKM to the various vendors as proposed by the department. He was of the view that the department, in its said proposal, had not taken the realistic view in the allocation of the cable to various vendors, which had been done without taking into consideration their capacity to supply the quantity allocated to them, especially when only six months had been left in the said financial year to purchase the said quantity of cable. Therefore, he passed the order dated 30.09.95, Ex.PW­2/8.

72.According to prosecution, the Minister (accused) in his note had laid much stress to find out the capacity of the vendors to supply Contd....

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the cable within the stipulated period of six months, therefore, he laid down the parameters/formula to be adopted to find out the capacity of each vendor to supply the cable. The accused in cross­examination of the witnesses have tried to elicit from them that despite the fact that there was no basic difference in formula adopted by both the TEC and the parameters set by the accused to find out the capacity of the vendors to supply the cables, the department could have managed to propose lesser quantity for allocation to HTL than what was proposed by TEC. The Ld.Special Public Prosecutor has submitted that there were certain differences between the criterions/parameters adopted by TEC and the parameters as laid down by the accused, which resulted in the allocation of lesser quantity to HTL. Following were the main differences:­

i)TEC, in order to find out the capacity of each vendor to manufacture, had taken into consideration the manufacturing capacity of each vendor as mentioned in Contd....

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the details given in Annexure VI (Ex.PW­2/D­5 placed at page 25/C of D­5) to the TEC report issued by Telecommunication and Engineering Center dated 06.03.95. It may be mentioned here that manufacturing capacity of M/s HTL, on the date of opening of the tender, was 14.00 LCKM but was increased to 24.00 LCKM from 01.06.95, and similarly in the case of M/s Bhagyanagar Metals Ltd. (BML) it was 9.30 but increased to 16 LCKM from 27.03.95 (Ex.PW­2/D­5 placed at page 25/C of D­5). The TEC while allocating the quantities of cables to various vendors took into consideration their enhanced manufacturing capacity only which had increased in between the dates of opening of tenders and finalization of tenders by it, whereas the accused had directed the department to take into account the manufacturing capacity of each vendor which was in existence as on the date of opening the tenders i.e. 24.01.95.

ii)TEC, in determining the yearly manufacturing capacity of each vendor, calculated the same on the basis of twice of its best performance during the last six months from October, 1994 to March, 1995, while the department in working out the allocation to be made to various vendors, as per aforesaid order of the accused, took into account the supply performance of the vendors during the first six months of 1995­96 i.e from 01.04.95 to 30.09.95.

iii)TEC worked out the allocation of cable to each vendor for the year 1995­96 on the basis of the supplies made by them in the last six months of 1994­95 against the tender of the last year on cash payment, while as per the said order of the accused, the department, in order to work out Contd....

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the allocation of cable for the remaining six months, had taken into account the supply record of each vendor against last year's allocation and supplies made till date i.e. 30.09.95 against the orders on deferred payment and ad­hoc orders placed earlier in the year. Here, it may be pointed out that the department, in order to ascertain the supply position of each vendor, took into consideration the supplies made by the vendors against the deferred payments only on the said order of the accused.

73.Therefore, the parameters adopted by TEC and the department as per the orders of the accused were different, therefore, the results were bound to be different due to the facts as mentioned above in detail. It may be mentioned that said parameters were applied not only to M/s HTL but to other vendors also in order to find out their realistic capacity to supply the cables within the stipulated time of six months.

74.It has been submitted by the ld.Special Public Prosecutor that the note dated 30.09.95 seems to be very innocuous and at first Contd....

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glance it appears to be an outburst of a Minister who was feeling so much worried as to how this much of quantity (178.93 as recommended by TEC and the rest of the quantity which had been increased because of enhanced target) could be procured within such a short period of six months. He has submitted that in his note there appeared a sense of frustration on the part of accused/Sukh Ram with the working of his department which, without taking into account the past performance of the vendors, recommended for the allocation of that much quantity of cable for supply, which they were not capable to accomplish and that was why the accused had ordered the department to work out the quantity to be re­allocated to the each vendor according to their performance. The last line of his note would show his anguish on this issue as if he wanted the department to allocate that much of quantity to the vendors which they were in a actual position to supply. The Ld.Special Public Prosecutor has argued that Contd....

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however, the future events would show that this order which, on its face, appeared to be innocuous, was passed with an oblique motive and to put the vendors in a sense of fear and doubt that they might not get even that quantity which they otherwise could have got and thus by this order he opened a floodgate for the unscrupulous vendors to approach him to cause them undue advantage for consideration.

75.As discussed above, the department worked out the quantity to be allocated to all the vendors in accordance with the parameters/guidelines set out by the accused and prepared a chart in a tabular form which is Ex.PW­5/6 and placed in the file (Ex.PW­5/1) at page 194/C (D­5). Sh.Narendra Kumar, while submitting the chart, in his note dated 18.10.95, Ex.PW­5/7 noted that 'the supply position of M/s HTL and M/s HCL remain precarious.' Contd....

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76.The ld.Special Public Prosecutor has argued that if procurement of cable, as seen from the note dated 30.09.95, was the urgent need of the hour which was hovering in the mind of accused when he passed said order, then why accused, despite knowing the precarious supply position of M/s HTL which was apparent from the said chart and the note of Sh.Narendra Kumar, allocated a quantity of 3.5 LCKM to M/s HTL in addition to the proposed allocation of 3.51 LCKM to it by the department?

77.He has further argued that the accused, vide his note dated 03.11.95 marked as Ex.PW­2/9, in place of allocating the quantities as proposed by the department to various vendors in order to accomplish the object or urgent supply of the cables, increased the total quantity by 10% from 120.19 LCKM to 132.19 LCKM and thus, one fails to comprehend as to how the said Contd....

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increase in quantity would have facilitated the accused in getting quick supply within the period of six months. He has submitted that on the contrary this order would have further delayed the supply of the cables as by this order accused increased the allocation of cable to the vendor whose track record of supply was very poor.

78.He has further submitted that there was no need for the accused to increase the quantity of 120.19 LCKM by 10% and thus it is difficult to understand as to how this step in increasing the quantity would have helped the department in achieving the target of supply of cables as recommended by the TEC for the year 1995­96 as also the enhanced quantity. The reason for this increase which was given by accused in his words was 'with a view to be fair with the firms which have been affected by the application of the criteria detailed in the preceding note, the total Contd....

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quantity of 120.19 LCKM may be increased by about 10% to 132.19 LCKM. The so increased quantity of 12 LCKM may, therefore, be distributed in view of their performance and effective distribution of the overflow.' (emphasis given). This is a flimsy ground in view of poor supply performance by M/s HTL.

79.The evidence recorded during trial suggest absolutely a different reason for recording the note dated 03.11.95. Ld.counsel for the defence while cross­examining Sh.A K Jhedke (PW­5) elicited from him that "if the percentage of supply is calculated on the basis of actual orders placed on HTL by 30.09.95, the percentage given in the chart would be incorrect. It is wrong to suggest that somehow the accused came to know the mistakes which we committed while preparing Ex.PW­5/6 and vide his note dated 03.11.95, Ex.PW­2/9, he recorded the minutes to partially correct that mistake" (page 11 of cross­examination dated 10.07.02).

Contd....

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This suggestion suggests that the reason for increase in the quantity and allocation of additional quantity of 3.5 LCKM to M/s HTL by the accused was not that the injustice had been caused to M/s HTL because of the criteria laid down by the accused. In fact no injustice was caused to M/s HTL in allocating a quantity of 3.51 by the department on the basis of its performance. On the contrary, it (HTL) got undue pecuniary advantage from the order dated 03.11.95 passed by the accused.

80.Accused/Sukh Ram has come up with an absolutely different version in his statement u/s 313 Cr.PC. In reply to the question no.32, he has stated 'that the cable manufacturers supplying the cable had no market outside the Department of Telecommunication. Therefore, a policy was adopted so that no cable manufacturer had to close down its manufacturing business for the proportionate distribution of the overflow amongst all to Contd....

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ensure that all manufacturers could get their share of business and avoid any closing down of their manufacturing business.' The Ld.Special Public Prosecutor has argued that if it was the object of the accused behind the said order to increase the quantity, then there was no justification for the accused to lay down the guidelines in his order dated 30.09.95 which was to affect M/s HTL adversely. He further submitted that if this was real object, it would have been mentioned in the said order dated 03.11.95.

81.In this regard court can not loose sight as to what the accused said in statement u/s 313 Cr.PC. In reply to the question no.174, he has stated that 'I acted on and with the aid and advice of the officials of my department and not taking decision on my own.' But the record does not support his assertion. On the contrary, he acted much against the advice of the department. The department had pointed out the precarious supply position of M/s Contd....

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HTL. Had he acted on the advice of the department he would have allocated only 3.51 LCKM, as suggested by the department, in view of supply position of M/s HTL and the additional quantity of 3.5 LCKM, would not have been allocated to it.

82.The accused, before passing the order dated 03.11.95, whereby he increased the quantity by 10% did not consult even Sh.R K Takkar, Chairman of Telecom Commission nor he got its financial implication examined. This fact is evident from statement of Sh.R K Takkar, which he gave when he was examined in court as PW­2. According to this witness ideally the quantity should not have been increased and if increased it should have been distributed on pro­rata basis amongst all the approved bidders. To a question put by the court as to whether extra quantity could have been allocated to a vendor beyond his assessed capacity, he replied that no quantity should have been allocated to any Contd....

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vendor beyond his assessed capacity to supply.

83.It has been argued by ld.counsel for accused/Sukh Ram that no fault can be found with the order of the accused as M/s HTL was adversely affected party because of the criteria laid down by accused in his order dated 30.09.96 (Ex.PW­2/8). He has advanced his submission based on the reasoning that TEC had allocated a quantity of 9.64 LCKM but by adopting the parameter set out in his said order dated 30.09.95, the department worked out only a quantity of 3.51 LCKM and, therefore, the accused, in order to compensate the loss to be suffered by this vendor, being an affected party, allocated an additional quantity of 3.5 LCKM, so that this vendor could get the allocation of a total quantity of 9.23 LCKM (2.22 LCKM against ad­hoc purchase + 3.51 LCKM recommended by the department + 3.5 LCKM additional quantity allocated by the accused = 9.23 LCKM). According to the Contd....

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ld.counsel for accused that M/s HTL still remained in a loss of 0.41 LCKM. One fails to understand as to how this argument of ld.counsel for the defence would help him in rebutting the contention of the prosecution and the charge framed by this court that by passing the order dated 03.11.95 the accused, being a public servant, committed criminal misconduct by obtaining pecuniary advantage for M/s Haryana Telecom Limited by corrupt or illegal means, or by abusing his position as a public servant by additional allocation of 3.5 LCKM of PIJF cables to M/s HTL.

84.The Ld.Special Public Prosecutor has then submitted that assuming the submission of ld.counsel for the defence as correct one for the sake of argument, there were a number of other vendors also who were adversely affected by the criteria laid down by the accused but there was no increase in their allocation of cables which was worked out by the department. He has Contd....

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drawn attention of the court that Sh.R P Hans (PW­28), in his cross­examination dated 27.09.06 at page 3, has stated that 'based on the criteria given by the Minister the revised allocation was reduced in respect of certain firms as compared to the allocation recommended to them by the TEC. The firms are M/s TTL; TCL; CMI; UPCOM; BML; HTL; TRACO, BEOL and DELTON, as is evident from Ex.PW­5/6' (194/C of D­5). But none of them except M/s HTL and M/s TCL were benefited. Therefore, I am of the view that the contention of the ld.counsel for defence that the accused allocated additional quantity of 3.5 LCKM PIJF Cables to M/s HTL as it was the affected vendor and so he wanted to compensate it, has no force.

85.The ld.counsel for the defence has further argued that it was the condition of the tender, Ex.PW­1/1 as contained in Section IV para 5 that order for 20­50% of the tendered quantity may be Contd....

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placed to the vendor whose bid had been determined as lowest evaluated bid. M/s HTL had given the lowest rates, and its rates were rated as L­1, therefore, TEC had done a great injustice by allotting to it only 9.64 LCKM for the year 1995­96 and that it should have been allocated a sufficiently large quantity of the cables. According to him the accused, by his order dated 03.11.95, only tried to rectify the mistake which was caused by TEC and no undue pecuniary benefit was caused to M/s HTL. But this argument also does not help accused/Sukh Ram as it is not the case of the accused that he had allocated the additional quantity of 3.5 LCKM to M/s HTL only to compensate it for the loss caused by allocation done by TEC. Moreover, the argument of the ld.counsel for accused is without force as no injustice, in any way, was caused to M/s HTL by TEC by allocating 9.64 LCKM for the year 1995­96 to it. The aforesaid condition of the tender was subject to manufacturing capacity as ascertained by Contd....

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the purchaser. TEC had given the cogent reasons and adopted a reasoned formula in assessing the manufacturing capacity of a vendor as is evident from the following extract from the report of TEC:­ "However, it is seen that in the past some of the manufacturers have not been able to supply the full quantity ordered on them even though their rated manufacturing capacity was higher. The TEC is, therefore, of the opinion that for determining the realistic manufacturing capacity of each bidder, twice its best performance during the last 6 months period (October, 1994 to March, 1995) may be taken into consideration." (Ex.PW­2/D­6, at page 5/C of D­5).

86.The supply position of M/s HTL, as is evident from Ex.PW­10/1 (page 34/C of D­5) was 4.82 LCKM from October, 1994 to March, 1995. To find out the annual capacity of this firm it doubled the figure which came out to be 9.64 LCKM. This is the quantity which was recommended by TEC for allocation to this vendor for the year 1995­96.

Contd....

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87.The TEC report shows that all aspects as being agitated by ld.counsel for the accused, were considered by it, and no injustice was caused to M/s HTL by TEC.

88.Ld.counsel for accused has submitted that purchases against Tender No.14­21­MMT (MMS), Ex.PW­1/1 (page 124/C of D­5) were to be made against cash and not against deferred payment, therefore, the department had no justification to take into consideration the supplies made by the vendors against deferred payment, for assessing and working out the annual capacity of a vendor. Almost all the witnesses of the department were cross­ examined at length on this point. There is no dispute from the side of the prosecution that supplies against this tender were to be made against cash payment and not against the deferred payment. I fail to understand as to what the accused wanted to Contd....

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achieve from this cross­examination and argument. As discussed in paras 101 and 102 (infra), that since the remaining quantity which was to be purchased, was not governed by terms and condition of this tender, therefore, a discussion was going on in the file as to how the remaining quantity should be purchased, whether against cash payment or on deferred payment. In my view that aspect had nothing to do with this case, and more particularly with the charge, which the accused is facing. The argument that the department should not have taken into consideration the supplies made against the deferred payment, while working out the supply position of a vendor, is without merit for the reason that the supply position of not only M/s HTL but all the vendors, against deferred payment, was considered without any exception. Further, it was the accused himself who had asked in his order dated 30.09.95 that the department should take into consideration supply position of each vendor, inter alia, Contd....

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orders on deferred payment. TEC had taken into account only that supply which was made against cash payment. The department, in compliance with the guidelines laid by the accused in his order dated 30.09.96, had taken into account the supply position of each vendor against deferred payment also.

89.It has been argued by the ld.counsel for the accused that in the department every officer had powers to increase the tendered quantity of cables but when the accused being Minister, by his order dated 03.11.95 increased the quantity, his act is being seen as illegal. There was only one instance in which the department had increased the tendered quantity. It was for an specific purpose. The instant tender was floated for a quantity of 352 LCKM. It was proposed to increase it to 359.29 LCKM by the Tender Evaluation Committee. The reason has been given in the note dated 07.07.95, Ex.PW­5/2 (page 2/N of D­5) recorded by Contd....

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Sh.A K Jedhke (PW­5). He has mentioned that "while deciphering the size­wise quantities of different sizes of cables in KM as approved and included in the bid document, the total comes to 359.29 LCKM. The tender was evaluated for the above quantity." This, in my view, can not be said as increase by the TEC.

90.The ld.counsel for the accused has further pointed out that the department by enhancing the target for the year 1995­96 increased the quantity to 387.15 LCKM. Before dealing with this point, it may be pointed that this increased quantity, because of enhanced target, was approved by the Member (P), Member (F) and Chairman, Telecom Communication. Sh.R K Takkar (PW­2) has stated that under delegation of power made by Telecom Commission, the approval by Member (P) and Member (F) used to be taken as approval of the Commission. Sh.Arun Kumar Contd....

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(PW­10) in his cross­examination dated 20.07.02 at page 2 has stated that the target for each year used to be fixed by Telecom Commission. In view of this, it can not be said that the department had no power to increase the same. Here, it may be pointed out that prosecution has not disputed the power of the accused as Minister to increase the quantity. It is common knowledge that every public servant has some official powers and those powers are meant for being used/exercised. But the moment the powers are abused for obtaining/causing pecuniary advantage to himself or to some other person it becomes an offence. The accused, as discussed in detail in preceding paragraphs, had not used his powers as a public servant in the interest of the department. To the contrary, he had abused his powers for obtaining/causing pecuniary advantage to M/s HTL. Thus, the argument of the ld.counsel for the accused in bereft of any substance.

Contd....

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91.It has been then argued by the ld.counsel for the accused that the acts of the accused when he passed the order dated 03.11.95 by which he allocated an additional quantity of 3.5 LCKM to HTL or the other order dated 08.05.96 {discussed while dealing with issue of 4 LCKM (infra)} by which he (accused) directed immediate placement of supply of 4 LCKM to M/s HTL despite the advice of the department that no fresh order be placed on this vendor till it executed the existing order, did not cause any loss to the department/Government. The ld.Special Public Prosecutor has submitted that Section 13(1)(d) of the PC Act, 1988, nowhere provides that when the accused, as public servant, obtains for himself or any other person any valuable thing or pecuniary advantage, it should result in corresponding loss to the Government. I find merit in the contention of the ld.Special Public Prosecutor that it is not an ingredient of an offence u/s 13(1)(d) of Contd....

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PC Act that some corresponding pecuniary loss be caused to the Government or department.

92.Ld.counsel for the accused has further contended that if accused had committed any irregularity when he passed the aforesaid orders, the subordinate officers were duty bound to point out that such orders were illegal, therefore, he should refrain himself from passing such orders. He has submitted that this inaction on the part of departmental officers, without any fault or motive on the part of the accused, resulted in pecuniary advantage, if any, to HTL. This contention is devoid of any merit. First of all, no subordinate officer can challenge or doubt the correctness of an order passed by the Minister. Secondly, in the instant case the department had repeatedly pointed out the precarious supply position of M/s HTL and gave the accused their suggestions with facts and figures but despite this, the accused allocated additional Contd....

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quantity of cables to HTL, obviously with an ulterior motive.

93.It has been argued by the ld.counsel for the accused that the accused vide his order dated 03.11.95, Ex.PW­2/9 increased the total quantity of 120.19 LCKM by 10% to 132.19 LCKM but the charge framed against the accused does not mention this quantity of 12 LCKM. From what has been argued by the ld.counsel for the defence, I gather that he wanted to submit that the accused/Sukh Ram, if at all, abused his official position for obtaining pecuniary advantage for himself or for any other person, it was in respect to 12 LCKM cables and not in respect of 3.5 LCKM only, therefore, the charge must have been framed accordingly, i.e for whole of the quantity. I fail to understand that how this argument could be of any help to the accused/Sukh Ram and what benefit the accused wants to drive from this submission. It may be mentioned that the accused/Sukh Ram was charge Contd....

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sheeted by the CBI for offence of conspiracy which was hatched by him with his co­accused/D S Choudhary and in pursuance thereof he caused pecuniary advantage to HTL by allocating, without any justification, quantity of 3.5 LCKM of the cables. The allocation of additional quantity of the cables to other firms, as mentioned in the said order passed by the accused on 30.09.95, is not a subject matter of this case. This was the reason that only 3.5 LCKM quantity was mentioned in the charge. It may be mentioned that in respect to other parties there is no evidence like this case, about the recovery of any amount belonging to those parties from the possession of the accused/Sukh Ram. Moreover, order on charge dated 01.06.02 passed by this court can not be ignored. This court in the said order has taken into consideration the whole quantity of 12 LCKM of cables observing that it showed that the accused abused the public office held by him at that time with a view to cause pecuniary advantage to Contd....

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those vendors. For the proper appreciation of this point the relevant portions of the said order on charge are re­produced hereunder:­ "15. Vide this order dated 30.09.05, accused/Sukh Ram who was then MOS(C), Government of India, took a policy decision that for the purpose of placing order, the capacity of the vendor had to be derived on the basis of the annual capacity as on the date of opening of the tender, past record of the supply, supplies made against orders on deferred payment basis as well as ad­hoc orders placed earlier during the year 1995­96....Accused/Sukh Ram did not at all dispute the correctness of figures taken and the allocation proposed by the department in the revised proposal. He did not modify or reverse his earlier decision dated 30.09.95. What he did was to increase the quantity of purchase by 12 LCKM and allocate 3.5 LCKM out of it to M/s HTL. The only reason given by the accused/Sukh Ram for increasing the purchase order by 12 LCKM was to compensate those vendors who had been affected by application of the revised criteria laid down by him on 30.09.1995........He did not say that the criteria laid down by him on 30.09.1995 was wrong or unjustified. Had that been the position, he would have changed the criteria. If according to him the criteria laid down by him was justified and in public interest, it was immaterial if any vendor was adversely affected by the application of that criteria.........The very act of the accused/Sukh Ram in increasing the purchase quantity by 12 LCKM, solely for the purpose of compensating those vendors which were Contd....

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affected by his policy decision, without changing or modifying that policy decision, in any manner, shows abuse of the public office held by him at that time, with a view to cause pecuniary advantage to those vendors."

94.In view of this discussion, I find no merit in the submissions of ld.counsel for accused on this point.

ALLEGATION RELATING TO IMMEDIATE PLACEMENT PURCHASE ORDER OF 4 LCKM PIJF CABLES ON M/s HTL

95.The second allegation against accused/Sukh Ram is about the allocation of 4 LCKM PIJF Cables to HTL to obtain pecuniary advantage for it (HTL) by corrupt or illegal means or by abusing his position as public servant.

96.Here, it would be pertinent to mention that this allegation was not the part of the charge sheet submitted by the Investigating Officer in this case and also of the sanction order, Ex.PW­26/A, however, Contd....

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at the time of framing charge, the ld.prdecessor of the court found sufficient material to frame the charge in respect to this allegation also against accused/Sukh Ram. Accordingly, the ld.predecessor framed the charge for an offence punishable u/s 13(2) r/w Sec. 13(1)(d) of the PC Act.

97.While dealing with this allegation for framing the charge, the ld.predecessor in his order dated 01.06.02, on framing of the charge mentioned as under:­ "Investigation carried out by CBI shows that when the department took up further purchase of PIJF Cables in April­May, 1996, it noted that supply performance of HTL upto February, 1996 was only 59.39% and the order placed on deferred payment basis had not been executed so far, although agreements were signed in the year 1995 and the company had backed out from the commitments made to department to supply cables under deferred payment scheme. It was, therefore, proposed by the department that order on HTL and two other companies whose supply position was not good, be placed only after execution of timely and successful execution of the existing orders already placed on them. However, accused/Sukh Ram, vide his order dated 08.05.96 did not Contd....

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agree with the department and directed immediate placement of the order on these vendors. There was nothing exceptionable with the proposal of the department for deferring placement of orders on HTL, HCL and TTL, who were the defaulters in supply of orders, till the orders already placed on them were executed. Without giving any plausible reason, the accused/Sukh Ram directed placing immediate further orders on these vendors, despite noting the proposal of the department. The only reason given by him for directing immediate order of 4 LCKM on HTL was that deferment of placement of order will effect timely supply of the cables. The reason given by him is very flimsy and no reasonable person could have taken this view. If a vendor had already been defaulting with backlog of more than 40% of the quantity already ordered on it, it could hardly be expected to have executed fresh orders well in time. If the Minister was concerned about timely supply of cables, additional orders should have been placed on those vendors who had spare capacity and who had made timely supplies in the past. But there was no justification for immediately placing further orders on those vendors who already had substantial backlog to clear." (Para 20)

98.For better appreciation of this allegation one will have to revert back to stage of processing of the TEC report in File No. 203­60/94 MMS, Ex.PW­5/1 (D­5). The department had floated Contd....

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the tender for the purchase of PIJF Cables for a quantity of 352 LCKM. However, while deciphering the size­wise quantities of different sizes of cables in KMs as approved and included in the bid documents, the total LCKM to be procured under this tender came to 359.29 LCKM as is clear from first para of note dated 07.07.95, Ex.PW­5/2 (D­5, 1/N) recorded by Sh.A K Jedhke (PW­5). The Tender Evaluation Committee examined those bids and finalized its recommendations in respect of prices for each type and size of cable and the quantity to be allotted to each successful vendor. The TEC recommended the purchase of 178.93 LCKM for the year 1995­96 and 179.05 LCKM of cables for the year 1996­97. It recommended the allocation of 9.64 LCKM and 17.96 LCKM for the year 1995­96 and 1996­97 respectively to HTL (vide Ex.PW­2/6 placed at page 8 of TEC report, D­5). However, from the note dated 07.07.95, Ex.PW­5/2 (1/N of D­5) recorded by Sh.A K Jedhke (PW­5) and note dated Contd....

101

21.07.95, Ex.PW­13/D­1 (3/N to 5/N of D­5) recorded by PW­14/Sh.Narendra Kumar, Director (MMS), it is apparent that the target for procurement of the cables for the year 1995­96 had been increased. It was worked out and revised to 387.15 LCKM.

99.Since the finalization of the tender for the year 1995­96 and 1996­97 would have taken sufficient time, therefore, the Telecom Commission authorized the Circles and MTNL to procure 58.86 LCKM on ad­hoc basis against cash payment for meeting their urgent requirement for the first quarter of 1995­96 pending finalization of the tender. Sh.Narendra Kumar, (PW­14) in the aforesaid note, Ex.PW­13/D­1 (at 4/N of D­5) has mentioned "it may be noted that vide a decision of Telecom Commission (vide case no.203­60/94­MMS and No.222­22/94­MMS, copy enclosed vide 94­99/C and 100­105/C respectively), circles including MTNL have already been authorized for procurement of 58.56 LCKM Contd....

102

cables on cash basis through ad­hoc orders to meet urgent requirement of the cable in the first half of 1995­96, pending finalization of the 1995­96 cable tender." This aspect had also been dealt with by Sh.A K Jedhke (PW­5) in his note dated 07.07.95, Ex.PW­5/2 (at page 2/N of D­5) where he specifically noted, "the above quantity of 58.56 LCKM has been awarded to the successful firms against the previous tender, (MTNL and DOT) in proportion to their allocated quota in the last tender with the condition that the same will be adjusted from their share of orders against the current tender if approved for procurement for the year 1995­96."

100.Besides, the quantity of 58.56 LCKM cable, another quantity of 85 LCKM cable was available to the department which had been arranged on deferred payment by VLF Cell. It was pointed out by Sh.Narender Kumar (PW­14) in his aforesaid note, Ex.PW­13/D­1 Contd....

103

that net balance requirement, after taking into consideration the two supplies (85 LCKM against deferred payment and 58.56 LCKM against ad­hoc procurement) comes to 243.59 LCKM.

101.The Department of Telecommunication, placed under the situation to attain the enhanced target, was having a problem as how to procure the balance quantity of cable - whether against cash purchases or on deferred payment basis for want cash availability. Sh.Narendra Kumar (PW­14) in his aforesaid note, Ex.PW­13/D­1 suggested following ways to overcome this difficulty:­ I. It was pointed out in the said note, Ex.PW­13/D­1 at page 4/N that DDG (LTP) had intimated in his note on page 84/C (Ex.PW­28/D­3 in D­5) that only 103 LCKM of the cable could be purchased on direct purchase i.e against cash and since the circles including MTNL had already ordered to acquire the quantity of 58.56 LCKM against cash, therefore, there remained only a quantity of 44.44 LCKM which would be available for purchase Contd....

104

against cash. It was suggested that remaining quantity of 199.15 LCKM may be purchased against deferred payment. He proposed in this regard that this procurement may be done by offering this quantity in a separate bid to firms interested in supplying on deferred payment basis as all of them may not be interested in this. II. Alternatively, if sufficient funds could be raised by alternative financing, the entire tendered quantity which was originally for two years and which matched more or less with revised requirement, could be procured that year (1995­96) on cash and a fresh tender could be floated next year after re­assessment of requirement for 1996­97.

102.The subsequent noting made by the senior officers on the file, Ex.PW­5/1 would reveal that they were exploring the methods to procure the remaining quantity of cables through either cash or deferred payment. There is nothing on record from which, either directly or by necessary implication, it can be inferred that above mentioned suggestion no.(ii) mooted by Sh.Narendra Kumar was ever considered and accepted by any of the concerned authorities.

Contd....

105

103.I fail to understand as to how the ld.counsel for accused has based his whole cross­examination of prosecution witnesses and the argument on the assumption that the total quantity i.e. 387.15 LCKM (which was worked out after taking into consideration the enhanced target) was to be purchased by the department on the terms and conditions as envisaged under the Tender Enquiry (TE) No.14­21/94­MMT(MMS) opened on 24.01.95 (Ex.PW­1/1 page 124/C of D­5) or Tender Enquiry (TE) No.203­60/93­MMS­I dated 23.02.94 (PW­3/D­6) which provided the purchase of the material against cash and there was no provision in them for purchase of cable against deferred payment. On the contrary, note dated 08.08.05, ExPW­2/D­3 by Sh.Joseph, Member (Finance) would show that recommendation made by TEC for two years was approved. It reads as follows:­ "Prices and supplier wise allocation (for two years) as recommended by TEC approved. Quantity to be procured Contd....

106

in 1995­96 as proposed at P.6 ante."

104.This indicates that the enhanced quantity, which was worked out because of enhanced target, was not to be purchased from the tendered quantity of cables earmarked for the year 1996­97. It would be further clear from the subsequent notes by the other senior officers.

105.The note dated 19.09.05 (Ex.PW­13/D­6) recorded by Sh.R P Hans proves that the action for procurement of 178.93 LCKM as recommended by TEC and approved by Member (P) and Member (F) was initiated and processed. The said note reads as under:­ "The case was discussed in the TC Meeting on 15.09.95 pending decision regarding utilization of additional funds likely to be available on account of license fee from cellular/basic services....by private operators, we may take action for procurement of 178.93 LCKM of PIJF Cables in cash as approved on 7/N."

Contd....

107

106.Accordingly, vide note dated 26.09.95, Ex.PW­2/D­4 recorded by Sh.R P Hans, the proposal for the procurement of the said quantity was placed before MOS(C) (the accused). The accused vide his note dated 30.09.95, Ex.PW­2/8 and 03.11.95, Ex.PW­2/9 dealt with this aspect from this angle. He, nowhere noted that the remaining quantity be purchased and adjusted against the quantity recommended by TEC for the year 1996­97 under the said tender. Here, it would be appropriate to mention that the accused, as already discussed while dealing with the allegation of allocation of 3.5 LCKM by accused to HTL, had increased the quantity from 120.19 LCKM to 132.19 LCKM and not from the tendered quantity earmarked for 1996­97.

107.Thus, purchase of remaining quantity, which included the quantity of 85 LCKM cable against deferred payment, had nothing Contd....

108

to do with the quantity to be purchased against the tender No. 14­21/94­MMT(MMS) dated 30.11.94 (Ex.PW­1/1) and the tender no.203­60/93­MMS(I) dated 23.02.94 (Ex.PW­3/D­6) for the previous year.

108.At this stage, it would be appropriate to also deal with the procurement of 85 LCKM on deferred payment basis. This quantity of 85 LCKM cable was made available by the VLF Department which was to be purchased against a different tender floated in the month of June, 1994 by VLF Cell. The statement of Smt.Anita Soni (PW­3) who was posted as Dy.Director General (VLF) during 1993 to 1996 is relevant on this point. She has stated that "the job the said branch (VLF) was to procure material on lease finances and deferred payment basis. The necessity for purchase on deferred payment basis occurred on account of shortage of funds with the Department and directives of the Contd....

109

th Planning Commission. When targets for 8 Five Year Plan were being examined by the Planning Commission, it was found that department's targets were beyond the funds available with it, and, therefore, it directed us to arrange alternative means of finance for purchasing materials, etc. Thereafter in November, 1993, the department started purchase of material on deferred payment and lease finance basis."

109.She, in her cross­examination dated 01.07.02 at page 2 has stated that 'our branch received authorization from MM Branch to make purchases on deferred payment basis and we initiated the process accordingly.' After checking the record she, in her cross­ examination dated 04.07.02 has stated 'I have checked the record and found that in fact tender for purchase on deferred payment basis was published on 15.06.94.' This refers to the Tender Enquiry No.95­7/94 dated 15.06.94 as is apparent from Contd....

110

the statement of this witness (page 2 & 3 of cross­examination dated 10.07.02) and also from the draft agreement enclosed with the letter no.80­24/PIJF­2/95/VLF dated 02.03.95 (Ex.PW­7/14, D­52) which also mentions Tender Enquiry No.95­7/94 dated 15.06.94 and Offer No.80­24/PIJF­2/94­VLF dated 02.02.95 under caption 'Concerned References.' The agreements for supply of PIJF cable on deferred payment basis executed by HTL with Punjab Telecom Circle dated 07.04.95, Ex.PW­7/16 (placed in D­52) and dated 22.06.95, Ex.PW­3/D­4 (placed at page 38/C of D­14) executed by the said firm with Haryana Telecom Circle also refers to offer no.80­24/PIJF­2/94­VLF dated 02.02.95 at sl.no.2 and acceptance letter no.HTL/Sales/640 dated 09.02.95 at sl.no.3 under the caption 'Concerned References.'

110.Thus, it is amply clear that the supply of this quantity of cable against the deferred payment emanated from the Tender Enquiry Contd....

111

No.95­7/94 dated 15.06.94 and not from Tender Enquiry No. 203­60/93­MMS dated 23.02.94 which was opened on 22.04.94. The reference of this tender in draft agreement and other correspondence appears to have been made as all other terms and conditions etc. of Tender Enquiry No.203­60/93 MMS­I opened on 22.04.94 would be applicable for procurement of the cables under this scheme. A substantial portion of cross­ examination of the prosecution witnesses by the defence is directed to show that HTL was not bound to supply the cable under deferred payment scheme as both the tenders e.g TE No. 203­60/93 MMS dated 23.02.94 and TE 14­21/94­MMT (MMS) dated 30.11.94 and opened on 24.01.95 provided for supply of cable against cash payment and not again deferred payment, therefore, the non supply of cables by HTL against deferred payment should have been not taken into consideration by Smt.Anita Soni (PW­3), Sh.R P Hans (PW­28), Sh.V K Arya Contd....

112

(PW­4) and Sh.A S Bhola (PW­15) in their notes Ex.PW­3/2; PW­2/D­9; PW­4/1 and PW­5/D­1 respectively. Consequently, it has been argued by the ld.counsel for accused/Sukh Ram that the accused did not cause any undue pecuniary advantage to HTL which may attract any penal provision against him. The argument is misconceived as is apparent from the evidence on record.

111.The chart Ex.PW­7/15 (placed in D­52) which is the annexure to the aforesaid letter, Ex.PW­7/14 (placed in D­52) and letter F.No.80­24/PIJF­2/HTL/96­VLF dated 09.10.96 addressed to HTL by Sh.Manoj Anand, Director (PFC), Ex.PW­3/D­3 (D­56 at page 76/C) would show that HTL was allotted a total quantity of 4.77 LCKM cables on deferred payment terms against this tender. All the other firms were also allotted different quantity of cables under this scheme on the said terms. Out of the said quantity Contd....

113

(4.77 LCKM) the HTL was to supply 2.40 LCKM to Punjab Telecom Circle, 1.64 LCKM to Haryana Telecom Circle and 0.73 LCKM to Rajasthan Telecom Circle.

112.At this stage, it would be necessary to remove the confusion caused by the fact that if HTL was allotted a total quantity of 4.77 LCKM why the witnesses in their statements and in the various notes/correspondences recorded by them have referred to a quantity of only 2.37 LCKM. The statement (examination­in­ chief) of Sh.G L Sethi (PW­7) dated 11.07.02 and the letter dated 10.07.95 from Sh.K C Jindal, Dy.General Manager, Punjab Telecom Circle, Ex.PW­7/18 would reveal that no cable under the deferred payment scheme was supplied by HTL. Therefore, the Punjab Circle vide its letter dated 28.08.95, Ex.PW­7/20 (placed in D­52) cancelled the said agreement dated 07.04.95, Ex.PW­7/16 (placed in D­52). After the cancellation of this Contd....

114

agreement, the HTL was left to supply 1.64 LCKM and 0.73 LCKM to Haryana and Rajasthan Telecom Circles respectively. The total of these two quantities comes to 2.37 LCKM. This is why the said quantity was referred to by the aforementioned witnesses and in their notes/correspondence.

113.The ld.counsel for the accused has argued that not only agreement with Punjab Telecom Circle, the agreements executed with remaining i.e. Haryana and Rajasthan Telecom Circles were also cancelled and the quantity of 1.64 LCKM to be supplied to Haryana Telecom Circle by this firm was even re­allocated to M/s RPG Telecom, M/s UPCOM Cables and M/s Sterlite, therefore, there remained no quantity to be supplied by HTL under deferred payment scheme. He, in order to strengthen his argument, has relied upon note dated 20.10.95 recorded by Sh.Manoj Anand, Asstt.Director General (LF), Ex.PW­3/D­7 (placed at 41/N and Contd....

115

42/N of D­55). This argument is misleading. A perusal of this note would show that its first part deals with cancellation of the agreement executed by HTL with Punjab Circle. It mentions the approval of Telecom Commission and Member (P) Telecom Commission for the cancellation and re­allocation of the quantity of 2.40 LCKM allocated to Punjab Telecom Circle to the other firms. In the remaining part of his said note he has mentioned that the Haryana Telecom Circle was also facing the similar problem and the firm had not supplied any quantity of cables against the agreement executed by the firm for the supply of cable under this scheme. He, therefore, suggested that the quantity of 1.64 LCKM allotted to Haryana Telecom Circle might be re­allotted to the aforementioned three firms. But this note remained at the stage of proposal only. There is no evidence on record to substantiate the claim of the defence that the agreement for deferred payment was cancelled by Haryana Telecom Circle Contd....

116

and its cancellation was approved by the Telecom Commission. Same is the position in respect to Rajasthan Telecom Circle. Thus, these two agreements remained alive and HTL had yet to supply the respective quantity under the said deferred payment scheme.

114.In this backdrop, it was imperative for the department and the concerned officers to take into consideration the supply position of all the firms not only against cash payment but also under the deferred payment scheme before any further allocation of cables was made to any firm including HTL.

115.The note dated 08.12.95 (Ex.PW­2/D­9 placed in D­4 at 4/N and 5/N) recorded by Sh.R P Hans, while dealing with the procurement of remaining 111.4 LCKM, would show that out of 85 LCKM allocated under deferred payment scheme only 65.33 Contd....

117

LCKM was reported to have been supplied up till 31.10.95. He further mentioned in the said note that while there has been abnormal delay in supply of cables under deferred payment scheme by M/s HCL, M/s HTL refused to supply the cables against deferred payment even after signing the agreement.

116.Supply position against deferred payment scheme had considerably improved by 01.03.96 when Smt.Anita Soni recorded the note on that date. She in her statement dated 06.06.02 on page 2 has stated "vide my note dated 01.03.96, which is Ex.PW­3/2 (in D­4 at page 11/N) I noted that out of 85.33 LCKM PIJF Cables under DFP terms, 77.58 had been received and 7.77 LCKM had not been received. Out of it share of HCL was 5.4 LCKM..........After consulting other files available in the court, I say that remaining backlog of 2.37 LCKM against order on deferred payment basis pertained to Haryana Telecom Contd....

118

Ltd." I have already discussed that against the two agreements for supply of cables under deferred payment scheme which HTL had executed with Haryana Telecom Circle and Rajasthan Telecom Circle, it was to supply 2.37 LCKM cables. Thus, it was only HTL which did not supply any quantity to the circles under this scheme.

117.From these notes it can be gathered that all the other firms except HTL had supplied their quota of the cables against the said scheme. Here, it would not be out of context to mention that HCL was a Public Sector unit, therefore, it can not be equated with other private firms as no one in HCL was to get benefit out of the delayed supply of the cable under the said scheme.

118.In this context, it may also be pointed out that until February, 1996, it had not been decided as to how the remaining quantity Contd....

119

should be purchased, whether against cash or on deferred payment. On 14.02.96, Sh.R K Takkar, Chairman of Telecom Commission (PW­2) recorded a note Ex.PW­2/5 (placed at page 10/N of D­4) that 'we are facing a cash crunch and Finance Ministry had not allowed us to spend the proceeds of the license fee. Market borrowing amounting to Rs.1700 crores have not been raised. We may buy these cables on deferred payment basis.' He marked this note in the file D­4 to MOS(C) i.e accused/Sukh Ram. Despite this the accused on very flimsy ground ordered to purchase the remaining quantity against cash, vide note dated 28.02.96, Ex.PW­2/6 (placed at page 11/N of D­4) recorded by the accused. The said note is reproduced as under:­ "I have been informed time and again by the field units that the supply of cables on deferred payment are not being made in time by the suppliers and further such suppliers are approaching for converting the deferred Contd....

120

payment to cash payment. In order to avoid this exigency, we may immediately order this quantity on cash payment basis. Otherwise also, the payment against this supply will be due only in the next financial year when the fund position is expected to be better. The detailed distribution of this quantity may be put up to me within a week."

119.From this order HTL was the only firm which was benefited as it had not supplied any quantity against the deferred payment and had even refused to do so. This fact was in the knowledge of the accused that it was only HTL which was not supplying the cable against deferred payment while other vendors were supplying it. It may be argued that when the accused recorded the aforesaid note in the file he was not in the position to know the supply position as depicted by Mrs.Anita Soni (PW­3) because the note recorded by the accused preceded the note of Mrs.Soni. This argument may not be tenable in view of the note dated 08.12.95, Ex.PW­2/D­9 (page 5/N of D­4) recorded by Sh.R P Hans, wherein he made it clear that it was only HTL which had refused Contd....

121

to supply the cable against the deferred payment while other firms were supplying the same.

120.The accused vide aforesaid order dated 28.02.96 (Ex.PW­2/6) (page 11/N of D­4) asked the department to submit the detailed distribution of this quantity before him within a week. In compliance of the said order the department prepared and submitted firm­wise detailed distribution chart, Ex.PW­4/2 (placed at page 24/C of D­4). The parameters adopted at the time of preparation of distribution of the quantity of the remaining cables to the various firms have been mentioned by Sh.V K Arya (PW­4) in his note dated 21.03.96, Ex.PW­4/1 (placed at 13/N to 15/N of D­4). In view of those parameters the share for allocation of cable to HTL was worked out to 5.61 LCKM. In the note, Ex.PW­4/1 while mentioning the share to be allotted to various vendors including HTL, Sh.V K Arya, Director (MMS) (PW­4) Contd....

122

pointed out that supply position of the company upto February, 1996 was only 59.39% and it had not supplied the cables to various Telecom Circles on deferred payment basis despite the fact that the vendor (HTL) had executed the agreements for the same in the year 1995. In view of this, he suggested that no fresh order on this company be placed till they execute the existing orders. It was also mentioned in the said note that similarly the performance in the case of HCL and TTL was 55.53% and 67.22% respectively. For ready reference, the relevant portion of the said note is reproduced hereunder:­ "6. It is further added that in case of M/s HTL the performance upto February, 1996 is 59.39% and orders placed on the company by the circles on deferred payment basis have not been executed so far although the agreements were signed during the year 1995. Thus, it may be seen that the company has backed out from the commitment made to DOT to supply the cable under the deferred payment scheme. Therefore, it may be considered whether we should place fresh orders on M/s HTL or till they execute the existing orders. Similarly, the performance in the case of M/s HCL and Contd....

123

TTL is 55.53% and 67.22% respectively. There is a big backlog of approx.18.20 LCKM of cables with HCL and 1.97 LCKM of TTL as on 29.02.96."

121.This note was approved by DDG(MM­II) Sh.R P Hans, vide his signature, Ex.PW­4/4, Member (P), Mr.P Khan vide his signature, Ex.PW­4/5 and by Member (Finance) vide his signature Ex.PW­4/6.

122.This aspect was examined by Sh.A S Bhola, Director (Finance) (PW­13), an officer of same rank. He also recorded the note to the same effect. He also suggested in his note dated 02.04.96, Ex.PW­5/D­5 (placed in D­4 at page 17/N) "the firms whose supply position is reported not to be good e.g. M/s HTL, TTL & Delton etc. the orders may be placed on them only after execution of the existing orders in hand." Agreeing with the suggestions Chairman, Telecom Commission marked the file to MOS(C).

Contd....

124

123.The accused agreed with the above mentioned observation that the performance of some of the firms, namely, M/s Deltron, M/s HCL, M/s HTL, M/s TTL had not been satisfactory and he had taken cognizance of the proposal made by subordinate officers to defer placing of order till the existing orders were not executed, still he ordered to place fresh orders. The reason given by him for fresh orders was that the placement of the order will affect the timely supply i.e before the onset of monsoon. The relevant part of the order dated 08.05.96 recorded by the accused in the file at page 18/N (D­4) which is Ex.PW­2/7 is reproduced hereunder:­ "I have gone through the proposal in the preceding notes and the distribution proposed therein. It is observed that the performance of some of the firms, namely, M/s Deltron, M/s HCL, M/s HTL, M/s TTL as mentioned in pages 14­15/N and 17/N has not been satisfactory. It has been proposed to defer placing of order on them till they execute the existing orders in hand in time. The proposal to defer the placement of order will affect the timely supply of this important item in time i.e before the Contd....

125

onset of monsoon. It will, however, be in the fitness of things to order only that quantity on these firms which they are capable of supplying the cable during this period and the balance quantity be ordered straight away on the suppliers who have got sufficient capacity and have good track record. This will help the DOT to get timely supply of the material.

In the light of what has been stated above, the distribution of the quantity to the following firms made as given against each.

               Deltron              1.00
               Finolex              9.85
               CTC                10.20
               HCL                  4.00
               HTL                  4.00
               RPG                  6.77
               SIIL               13.57
               TTL                  1.00
               UBL                10.92

The distribution to the remaining firms mentioned in page 14/N is approved as proposed."

Contd....

126

124.As is apparent from this order dated 08.05.96, Ex.PW­2/7 passed by the accused, the only reason assigned for not agreeing with the suggestion of subordinate officers including the Chairman of Telecom Commission was such that an ordinary prudent person would have never passed it. According to him if the proposal to defer the placement of order was accepted, it would have affected the timely supply of this item in time i.e before the onset of monsoon. It is very difficult to comprehend that with such a poor track record of the supply (only 59% supply of the orders placed) HTL could have supplied the backlog and additional order of supply of 4 LCKM within a period of about two months (the order was passed on 08.05.96 and the time of onset of monsoon is not later than last week of June or first week of July). Thus, the reason given by the accused to pass this order was devoid of any logic.

Contd....

127

125.While discussing as to how the accused caused undue pecuniary advantage to HTL, it would be proper to see the difference between the recommended quantity and ordered quantity by the Minister, difference between the two and supply percentage of the above vendors in a tabular form:­ Name of % age of supply Recommended Recommended by Difference % age of what was the Firm as on 29.02.96 by the Deptt. the Minister recommended by the department and recommended by the Minister Delton 67.71 2.08 1.00 ­01.08 48.08 Finolex 85.98 9.35 9.85 +0.50 105.35 GTC 85.37 8.20 10.20 02.00 124.39 HCL 55.53 11.43 4.00 ­07.43 35 HTL 59.39 5.61 4.00 ­01.61 71.30 RPG 77.81 6.37 6.77 +0.40 106.28 SIIL 91.76 8.57 13.57 +0.500 158.34 TTL 67.22 2.35 1.00 ­01.35 43.10 UBL 80.65 7.92 10.92 +3.00 137.88

126.The chart Ex.PW­4/2 and the above tabular chart partly based on Ex.PW­4/2 would show that the lowest supply was that of HCL which was 55.53%. Since HCL is a Public Sector Undertaking in Contd....

128

which no personal interest, like other private firms, was involved, therefore, it would not be desirable to consider it at par with other firms. Hence, the supply position of HTL may be considered to be lowest. The performance of even TTL and Delton, whose supply position was shown as unsatisfactory, was more than 67% still they got only 43.10% and 48.08% of the quantity recommended by the department due to order of the accused, while HTL could manage to get 71.30% of the recommended quantity despite the poor supply position of only 59.39. From the perusal of note dated 08.05.96, Ex.PW­2/7 recorded by the accused no reason directly or by necessary implication can be inferred for this undue preferential indulgence by the accused in favour of HTL. The only possible reason that can be inferred is that such a quantity was allocated in order to cause undue pecuniary advantage to his co­accused/D S Choudhary, who was Chairman of HTL.

Contd....

129

127.It has been argued by ld.defence counsel that accused/Sukh Ram, instead of increasing the quantity, has, in fact, decreased the quantity from what was recommended by the department. Thus, according to him the said order was to the disadvantage of his co­accused, otherwise his firm (HTL) would have got 5.61 LCKM cable as recommended by the department. But this argument is totally misleading. It is inappropriate to conclude that the department had recommended allocation of 5.61 LCKM to HTL. The wholistic reading of the note would result to conclusion that a question mark was put as to whether any order should at all be placed upon HTL despite its entitlement for 5.61 LCKM in view of its precarious supply position. From the evidence which has emerged out in this case, it appears that the co­accused/D S Choudhary was dictating the terms. As discussed above, HTL did not supply even an iota of the cables which was allocated to it Contd....

130

under the deferred payment scheme while other vendors had supplied their allocated quantity under this scheme. In fact this vendor (HTL) did not deserve for the allocation of any quantity of cable.

128.From the order, one can not understand as to what formula was adopted by the accused while allocating different quantities to various vendors and what was the reason for disagreeing with the quantities suggested by the department. As already discussed that the job of the Minister was to take the policy decision and its implementation was part of the department. But by passing the order dated 16.07.93, Ex.PW­10/D­10 (D­53), the accused as Minister of State (Communication), created an opportunity to indulge in corruption and to extend undue favour to the parties with oblique motive. From this the only inference that can be drawn is that he transgressed the jurisdiction and the order Contd....

131

passed by the accused on 08.05.96 (Ex.PW­2/7 at page 18/N on D­4) was a motivated one. It was passed with the sole intention to cause undue pecuniary advantage to HTL.

129.It has been argued by the ld.counsel for the accused that the accused, in the capacity of Minister, was competent to pass such orders as the order to increase the allocation was a policy decision. By no stretch of imagination, it can be said to be a policy decision. That was why the accused did not take this stand in his statement u/s 313 Cr.PC. In reply to question no.174 "Have you anything else to say?", he replied "I acted on and with the aid and advise of the officials of my department and not taking decision on my own." This order shows that it was not passed on the advice of his officials of his department. On the contrary, he passed the said order overruling the suggestions of his officials to cause pecuniary advantage to his co­accused. If this Contd....

132

order, in his view, was a policy decision, he would have definitely stated it in his statement u/s 313 Cr.PC.

130.It has also been argued by the ld.defence counsel that MM Cell had proposed the allocation of 5.61 LCKM to HTL but the accused allocated only 4 LCKM and had the accused not allocated this quantity to this vendor, the DOT would have been in trouble and would have invited series of litigation, therefore, no fault can be found in the order dated 08.05.96 (Ex.PW­2/7) passed by the accused. It is argued that the allocation of 4 LCKM to the HTL virtually saved the department from unnecessary litigation and as such, Sukh Ram as Minister did not abuse his official position to cause undue pecuniary advantage to himself or to his co­accused/D S Choudhary. His argument is based on the note (Ex.PW­4/D­15, placed at page 19/N of the note sheet in D­4) recorded by Sh.A S Bhola (PW­15), Director (FA­V) dated Contd....

133

15.05.96. To appreciate this aspect in proper perspective, it would be proper to have a look of the said note. The same is reproduced hereunder:­ "Hon'ble MOS(C) has approved the proposal for placing orders for jelly filled cables for which there is shortage in the department now. Some changes have been suggested in the parawise allocation that was proposed in page 14/N based on the performance of the order in the original tender in respect to the 4 suppliers, namely, M/s Delton, HCL, HTL and TTL. Some quantity reductions have been suggested over what has been recommended by the TEC. But the ordered reduction is in violation of the terms and conditions of NIT. Some representation are reported to have been received in this context and the latest one from the HTL is placed at 26/C (Flagged 'A') in LF. This reduction can give rise to litigation cases and thus jeopardize our expansion programme.

It is suggested that orders may be placed for the quantities that have been approved on pre­page including the quantities reduced i.e. 10 LCKM in respect of four suppliers mentioned."

131.The ld.Special Public Prosecutor has submitted that the said argument of the ld.counsel for the accused is not tenable because Contd....

134

the accused had not entertained any such fear in his mind when he allocated 4 LCKM to M/s HTL and the haste shown by the accused in allocating the said quantity without insisting to the said vendor to execute the pending orders, itself shows his guilty intention. The reason as spelt out from this allocation in his note Ex.PW­2/7 is flimsy. These lead us to one and the only one inference that he abused his office as public servant to cause undue pecuniary advantage to himself and/or his co­accused/D S Choudhary.

132.The ld.Special Public Prosecutor has further argued that the witnesses S/Sh.V K Arya and A S Bhola had never suggested that no orders be placed on the firms which were lagging behind in the supply of the cable which was already ordered on them. They had suggested only to defer the placement of fresh orders till they executed the existing orders. They never suggested that Contd....

135

no fresh order be placed on this vendor (HTL). The possibility of litigation would have arisen only, assuming the logic given by this witness in his Ex.PW­4/D­15 as a correct one, if they had suggested that no fresh order be placed on this vendor or any other vendor. Sh.V K Arya in his note dated 31.03.96, Ex.PW­4/1 brought out to the notice of the accused, in clear terms, the adamant attitude of this vendor. In such circumstances no buyer would ever like to place fresh order for additional quantity of the material when it (Vendor) had not been able to execute the previous orders. He, in the said note Ex.PW­4/1, mentioned that "it is further added that in case of M/s HTL, the performance upto February, 1996 is 59.39% and orders placed on the company by the circles on deferred payment basis have not been executed so far although the agreements were signed during the year 1995. Thus, it may be seen that the company had backed out from the commitment made to DOT to supply the cables under deferred Contd....

136

payment scheme. Therefore, it may be considered whether we should place fresh orders on HTL or not till they execute the existing orders." Similar is the suggestion made by Sh.A S Bhola in his note dated 01.04.96, Ex.PW­5/D­1. In such a situation question of litigation would have never arisen.

133.The ld.Special Public Prosecutor has also submitted that if this issue is examined slight deeply, we would find that fear or terror was the creation of Sh.A S Bhola who, obviously, was too much influenced by letter dated 10.05.96 addressed by M/s Haryana Telecom Limited to the Member (Finance), DOT, New Delhi (the letter is placed at page 26/C of D­4, an admitted document). This witness proceeded on a false assumption that the remaining quantity of 111.40 LCKM, which was to be allocated, was the part of the quantity of present Tender Enquiry No.14­21/94­MMT (MMS) which was floated for two years i.e. 1995­96 and 1996­97.

Contd....

137

That was why he, on page 16/N (last four lines) of Ex.PW­5/D­1 (D­4), mentioned that "the tendered cable for two years requirement have to be utilized during the period 1995­96 only." this aspect has been discussed above in detail. Suffice is to say that it was never decided at any level that the whole of the tendered quantity meant for two years was to be utilized to meet the requirement for the year 1995­96 only. Since the aforesaid quantity was not a part of the said tender, therefore, its terms and condition were not binding. Hence, there was no question of any litigation.

134.The preliminary objection taken by the ld.counsel for defence that the court was not competent to frame the charge and to try this allegation, as it does not find mention in the sanction order, has already been dealt with in detail by me earlier while discussing the validity of sanction and found not tenable.

Contd....

138

RECOVERY OF Rs.3 LACS AND THE VISITING CARD OF THE CO­ACCUSED/D S CHOUDHARY KEPT IN ENVELOPE DURING THE SEARCH OF THE HOUSE OF ACCUSED/SUKH RAM AT MANDI, ON 16 AUGUST, 1996 th

135.It is the prosecution case that the CBI had registered a case RC3(A)/96 in its ACI­IV branch, Delhi. Sh.B S Jhaker was the Investing Officer of that case. On 13.08.96, he in connection with the investigation of that case, obtained a search warrant from the court of Sh.Dinesh Dayal, the then ld.Special Judge, Delhi for the search of the house of accused/Sukh Ram located at Mohalla Shyamkhetar in Mandi (Himachal Pradesh). The search warrant was endorsed by Sh.Jhakar in favour of Sh.B N Jha, the then Dy.SP, CBI, ACI­IV, Delhi for execution. On 13.08.96, itself, at the time when the search warrant was endorsed to Sh.B N Jha for execution, he was directed to execute the same on 16.08.96 only, at Mandi. On 13.08.96, Mr.B N Jha left Delhi for Mandi along with his subordinate staff and reached Mandi on 14.08.96 in the Contd....

139

morning. Sh.K L Meena, Superintendent, CBI, ACI­IV also reached Mandi on 15.08.96 to supervise the search.

136.On 14.08.96, Sh.Jha, after reaching Mandi arranged the services of two witnesses from State Bank of India, Mandi to witness the house search of accused at Mandi to be conducted on 16.08.96. He also arranged one more witness from State Bank of Patiala, Mandi for the same purpose. Mr.B N Jha had asked their senior officers to direct them (witnesses) to reach at 6.30 a.m on 16.08.96 at Electricity Board Guest House, Mandi where he was staying with his staff. On the same day i.e 14.08.96, he made a discreet enquiry about the house, to satisfy himself that the house which was to be searched, belonged to accused/Sukh Ram. In accordance with the request by Sh.B N Jha to depute two witnesses, the Chief Manager of State Bank of India, Mandi detailed S/Sh.K L Goel and Harish Kapoor, both Contd....

140

Asstt.Managers of State Bank of India, Mandi and asked them to report to Sh.B N Jha at the said Guest House, on 16.08.96 at 06.30 a.m. Similarly, a third witness Mr.Dogra from State Bank of Patiala, Mandi who was detailed for the said purpose also reached there.

137.As per decided programme, the raiding party comprising of Sh.B N Jha, Sh.K L Meena along with subordinate staff and the aforesaid witnesses reached at the house of accused/Sukh Ram, on 16.08.96 at 07.00 a.m. Neither accused/Sukh Ram nor any of his family members were present there at that time. At that time only Sh.Bir Singh, Caretaker of the house and Ram Pal, PSO were present in the house. The search warrant was shown to them and after apprising them that house search was to be conducted, the raiding party started the house search. CBI started the house search from 07.00 a.m. and could complete it Contd....

141

late in the evening by about 10.30 p.m. During search huge cash started being recovered, therefore, CBI informed the Income Tax Authorities for action on their part. On receipt of the information about it, the Director (Investigation), Income Tax, directed Sh.Sunil Dutt, Asstt.Director (Investigation), Income Tax, Shimla to reach at the house of accused/Sukh Ram, former Union Minister at Mandi where CBI search was being carried on and huge cash was being recovered. He was also directed to take the action under Income Tax Act. Sh.Sunil Dutt along with his subordinate staff reached at the house of accused at about 04.30 p.m when searches by the CBI was in progress.

138.During the course of house search CBI, in the presence of the witnesses viz S/Sh.K K Goel and Harish Kapoor, recovered huge cash contained in various suitcases, bags and boxes. From suitcase no.10, besides other cash, an envelope containing 600 Contd....

142

new GC Notes of Rs.500/­ denomination and one visiting card of Devinder Singh, President, PHD Chamber of Commerce & nd Industry, Chairman Industrial Cables India Ltd., Flat No.445­2 Floor Commercial Complex, Greater Kailash, New Delhi was found. A total amount of Rs.1,16,51,520/­ in cash was recovered by CBI on that day from the said house search. On the spot, on that day a 'search­cum­seizure list' about the recovery of the cash was prepared in the presence of those two witnesses. On page 14 against sl.no.344 of the said list an endorsement giving out the details about the recovery of that envelope and visiting card was made at time when the said list was prepared.

139.After the recovery of the said cash amount, Sh.B N Jha, vide letter dated 16.08.96 requested Sh.Sunil Dutt to take possession of the entire cash amount and the said seizure memo and requested him to initiate appropriate legal action under the Contd....

143

Income Tax Act. Sh.Sunil Dutt acknowledged the said letter and the seizure memo. However, physical possession of the cash was not taken. Sh.B N Jha kept the entire cash on 16.08.96 in the night in the strong room of State Bank of India, Main Branch, Mandi. On the next day i.e. 17.08.96, Sh.Sunil Dutt seized and took the possession of the entire cash under Section 132A of Indian Income Tax Act from CBI. A separate list of the cash received from CBI was prepared by Income Tax Officials, on 17.08.96. After receipt of the entire cash from CBI, Sh.Sunil Dutt, on 17.08.96, got a bank draft for entire amount prepared in the name of "Personal Deposit Account, Commissioner of Income Tax, Patiala" from the said bank.

140.Since, during investigation, the recovery of Rs.3 lacs along with a visiting card in an envelope was found connected and relevant with this case, it was taken as a part of the instant case.

Contd....

144

141.In order to prove its case in respect to this aspect, the prosecution has examined S/Sh.Sunil Dutt (PW­22); Harish Kapoor (PW­23); K K Goel (PW­24) and Sh.B N Jha (PW­25). Out of these four witnesses, two witnesses, namely, Sh.Harish Kapoor and Sh.K K Goel did not support the prosecution case, therefore, they were declared hostile and were cross­examined by the prosecution. The other two witnesses Sh.Sunil Dutt and Sh.B N Jha supported the prosecution case.

142.The accused, about the recovery of the cash and card put his defence during cross­examination of Sh.B N Jha. It was suggested to him that the cash recovered from the first floor of (Sukh Ram's) house was kept and only meant for J&K election and was under the care and custody of one Tirath Ram and it did not belong to Sukh Ram. However, accused/Sukh Ram, when Contd....

145

examined u/s 313 Cr.PC, did not state this fact. He in reply to all the questions pertaining to this recovery stated u/s 313 Cr.PC that "there is nothing against me which invites my explanation. However, I was out of country for medical treatment."

143.Accused/Sukh Ram examined Sh.Tirath Ram (DW­2) to substantiate his defence. He has stated in his statement that in September, 1996 Assembly election for J&K State were held. For the Assembly election he was made camp­in­charge at Mandi by S/Sh.Sita Ram Kesri, cashier and B P Maurya, General Secretary of Cognress (I) Party. Sh.Kesri informed him that he had talked to Pt.Sukh Ram and therefore, he could open camp office in his (Sukh Ram's) house located in Samkhetra, Mandi. He was informed on telephone by S/Sh.Sita Ram Kesri and B P Maurya that election fund and election material would be transmitted to him and he should receive it. On 09.08.96, at about 11/11.30 in Contd....

146

the night he received the cash amounting to Rs.1,25,00,000/­ from Chandan Sharma in 12 briefcases/suitcases. Election material like pamphlets, flags and posters were also received. On the next day he counted the cash and found that it was Rs. 1,25,00,000/­. This counting process was completed by him within 3­4 hours. He had spent some of the money out of that amount by 16.08.96. It was on 16.08.96 that when he was going to the camp office at bus stand, he learnt about the raid being conducted at the house of Pt.Sukh Ram by CBI. When he reached the camp office he was not allowed to enter the house by CBI officials. Thereupon he, on telephone, brought all the facts to the knowledge of Sh.B P Maurya at Delhi, the same day but he asked him to meet higher officer of CBI present at Mandi. On the next day i.e. 17.08.96, he met SP and narrated all the facts who told him that he would see the matter later on. On that day itself the witness talked to S/Sh.Kesri and Maurya who said that since Contd....

147

they were going out of city, therefore, he should meet him after 6­7 days. On 23.08.96, he reached Delhi and narrated all the facts to them.

144.On the basis of the evidence adduced by prosecution and defence, it has been argued by the prosecution that the facts relating to the search of the house of the accused on 16.08.96 by the CBI personnel and recovery of the huge amounts from the bags and suitcases from the house of the accused are not disputed. What is disputed is the recovery of 600 GC Notes of denomination of Rs.500/­ each and the visiting card in the name of Devinder Singh kept in the envelope, from suit case no.10. It has been suggested to PW­25/B N Jha in his cross­examination (dated 16.10.04) by the counsel for accused/Sukh Ram that no envelope or visiting card as alleged by the witness was recovered from the house search of accused. It has also been disputed that Contd....

148

the cash recovered from house of accused belonged to him and that in fact it was of the Congress Party fund that was given to Sh.Tirath Ram (DW­2) for spending in the Legislative Assembly elections of J&K which were scheduled to be held in the month of September, 1996. Ld.Special Public Prosecutor argued that, curiously enough, both these facts which were suggested to the witness, were not stated by the accused in his statement u/s 313 Cr.PC. In that statement the accused has shown complete ignorance about the house search (Q.Nos.133 to 141). Since counsel for the accused/Sukh Ram during his arguments has made extensive use of the cross­examination done on behalf of his co­accused/D S Choudhary, therefore, it would be pertinent to mention that during cross­examination of the recovery witnesses his counsel made no suggestion that the visiting card, Mark X­1 did not belong to him.

Contd....

149

145.It has been argued by the prosecution that the defence set up by accused/Sukh Ram in the cross­examination of Sh.B N Jha (PW­25) and in the evidence of the defence witness is absolutely a false one. The ld.Special Public Prosecutor has contended that the accused/Sukh Ram, in order to explain the recovery of such a huge cash, has introduced a highly motivated and a got up witness viz. Sh.Tirath Ram and that his evidence is so much full of improbabilities that no prudent person can believe his statement. The ld.Special Public Prosecutor enumerated certain points to submit and convince the court that the testimony of this witness can not be believed and that it is an afterthought defence:­

1. This witness was examined in this case on 30.08.08; 16.09.08 and 17.09.08 for his evidence. No summon was issued to this witness for his appearance in the court for 30.08.08. In this regard when cross­examined by the prosecution, the witness evaded the question and replied that he did not recollect that he had received the summons from the court for his appearance for 30.08.08. This evasive reply would mean that he appeared in the Contd....

150

court for his evidence on his own on the asking of the accused. He (witness) did not claim the expenses for his attendance in the court especially when he was resident of District Mandi (HP)­a far off place from Delhi. He tried to explain it that expenses are claimed after the conclusion of the evidence. This explanation could have been accepted but for the reason that he had appeared in the court of Sh.V K Maheshwari, Ld.Special Judge, Delhi as a defence witness on behalf of the accused in another case on 28.03.08 & 29.05.08 and his evidence concluded on 01.09.08 but he by his own admission did not claim any expenses from that court. It shows that how much he was interested and motivated witness.

2. As per his statement he was made in­charge of election camp in Mandi for the Legislative Assembly election for J&K State by Sh.B P Maurya, General Secretary of Congress (I) party and Election­in­Charge for Himachal Pradesh and Sh.Sita Ram Kesri, cashier of the said party. Surprisingly none of then was in­charge of J&K where the elections were to be held. It is difficult to comprehend that the party office bearers who had nothing to do with J&K State were competent to appoint in­charge of election camp for elections to be held in J&K State.

3. The Assembly elections were to be held at J&K but surprisingly election camp was established at Mandi in Himachal Pradesh which was at a distance of 200­250 Kms from Jammu. Generally, election camp is established within the State where elections are to be held. No reason is forthcoming from the witness which necessitated the Congress Party to establish its election Contd....

151

camp in a different State that too at such a long distance.

4. As per statement of this witness on 09.08.96, he had received cash and the election material i.e. Election pamphlets, flags and posters meant for J&K elections. He has also stated that workers of the party used to visit the camp office and they were instructed to go for election campaign along with the material. In his cross­ examination, the witness has stated that workers were from Mandi, Kullu, Bilaspur, Hamirpur, Kangra and Chamba districts to whom, the election material meant for J&K was supplied. He has further stated that all these districts are in State of Himachal Pradesh and not in J&K State. It is most surprising that the elections were to be held in J&K but the election material was collected by the party workers from the State of Himachal Pradesh. No prudent person can believe his statement. It exposes the falsity of his statement.

5. This witness in his examination­in­chief has stated that on 09.08.96 in the night at about 11/11.30, he received 12 brief cases/suitcases from Chandan Sharma of Bombay. On the same day Sh.Sita Ram Kesri and Sh.B P Maurya gave a telephone call from Delhi and told the witness that election fund and material were being sent and he should receive it. He also stated that at that time when Sh.Chandan Sharma handed over the fund, he told the witness that an amount of Rs.1,25,00,000/­ was in those suitcases and briefcases. Next day in the morning he counted the said amount and it took about 3 to 4 hours in counting it. No one can believe that such a huge cash in the denomination of 1000; 500; 100; 50; 20; 10 & 5 rupees Contd....

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could be counted by one person within such a short period while the CBI raiding party comprising of so many CBI personnel and bank officials took whole day in counting it.

6. No one can believe that one can hand over such a huge amount to a person without any receipt. DW­Tirath Ram in his cross­examination has admitted that no receipt was obtained by Chandan Sharma for the money entrusted to him especially when the said amount did not belong to him. It, as per his version, was party money, therefore, no person can afford to hand over this much of amount without any receipt. His acquaintance with the witness was not of such a high degree that no receipt would be obtained. He stated that his acquaintance with the said Chandan Sharma was only for the reason that he had attended Youth Congress meetings in Delhi so many times.

7. The witness has stated that it (cash) was the party fund. During the cross­examination of this witness a CD was played in the court before him. In the said CD when it was played, Sh.Sita Ram Kesri was seen saying that Sukh Ram wants to throw blame of his vices on the head of the party. In the same CD Sh.B P Maurya was seen saying "Ho sakta yeh rupiya kisi ki dharohar rakha ho.....Ho sakta hai ye party ka rupiya ho.....Ho sakta hai ye bhrastachar ka rupiya ho.....Kuch abhi to kaha nahii ja sakta na....Ho sakta hai ki party fund me aaya ho aur vo bimari ke liye chale gaye aur vo adjustment nahi ho paya." This piece of evidence gives a death blow to the statement of this witness that it was a party fund and was sent by S/Sh.Sita Ram Kesri and B P Maurya for Contd....

153

election expenditure.

8. As per the statement of this witness on the day of search he was present in Mandi and learnt about the house search being conducted by CBI. At about 6­7 p.m on the same day he learnt that CBI had taken away the aforesaid cash. Despite this he did not take any step to inform local police. He did not report about this incident to the Superintendent of Police, Mandi. He only informed Sh.B P Maurya and Sh.Sita Ram Kesri about it who instructed him not to talk about that money anywhere since that money was of party fund. He even did not meet SP, CBI who was present in Mandi on that day and went to his house. On the next day i.e 17.08.96, the witness talked to both S/Sh.Sita Ram Kesri and B P Maurya about it and they told only this much that since they were going out of Delhi he should meet them after 6­7 days. If it was the party money, Sh.Sita Ram Kesri and/or Sh.B P Maurya would have taken immediate steps to lodge the protest that the cash recovered from the house of Sukh Ram belonged to the party and Sukh Ram had nothing to do with it. This unusual conduct on the part of this witness can not be ignored. If it was a party money that too of Congress which was a national party, it would have taken all the necessary steps at all the levels to get the money retrieved. On the same day the party would have issued the statement in media and would have claimed the ownership of that money. Inaction and indifference on the party of Congress Party in claiming the said money is indicative of only one fact that the said cash did not belong to the party and it was not delivered to the witness on that day for election purposes.

Contd....

154

9. This witness has stated that he was called to Delhi in the last week of July, 1996 and was made camp in­ charge. He was told by Sh.Sita Ram Kesri that he had talked to Pt.Sukh Ram and he would open a camp at Mandi in the house of Pt.Sukh Ram located in Samkhetra Mandi. If it was a fact, accused Sukh Ram would have definitely stated in his statement u/s 313 Cr.PC.

146.The aforesaid facts and other facts which have come out in the cross­examination of DW­Tirath Ram lead to an irresistible conclusion that it was not a party money and it was not given to Sh.Tirath Ram for the purpose as claimed by him.

147.Since the cash was recovered from the house of the accused, the burden had shifted to him to prove as to whom did it (cash) belong if it did not belong to him. On this point he has failed miserably.

148.It has been argued by the ld.counsel for the defence that Contd....

155

Sh.Sunil Dutt (PW­22) on 16.08.96 had no opportunity to see the recovery of Rs.3 lacs and the visiting card of the co­accused/D S Choudhary (since expired) from an envelope kept in suitcase no.

10. He, in order to strengthen his argument, has contended that this witness has not stated this fact in his statement recorded u/s 161 Cr.PC and the witness has improved his version in this regard to strengthen the prosecution case. The argument does not carry any force. This witness has deposed that he reached the house of accused/Sukh Ram in Mandi at about 04.30 p.m when the counting of cash was going on. As such the possibility of the witness seeing the said recovery of cash and visiting card, kept in an envelope from suit case no.10, can not be ruled out. The witness in reply to a court question stated that he had seen the visiting card lying in the envelope in which the currency notes had been kept. To appreciate this issue, it would be proper to re­ produce the relevant portion of his statement made in the court.

Contd....

156

Before that it may be clarified that Ex.PW­22/1 is the inventory which was prepared on 16.08.96 by CBI and Ex.PW­22/2 is the inventory which was prepared by Income Tax officials on 17.08.95. The reply was given by the witness after seeing Ex.PW­21/1 and not Ex.PW­21/2. It means he was referring to the incident of 16.08.96 that when Ex.PW­22/1 was prepared the said card and cash of Rs.3 lacs was recovered. The relevant portion of said statement (at page 3 to 5 of examination­in­chief) is re­ produced below:­ "After completing the search CBI officials handed over a forwarding letter to me along with inventory of the cash seized by them......The search cum seizure list which was annexed to the original forwarding letter has been brought by me and is annexed to the original forwarding letter Ex.PW­22/1 (20 pages) is the carbon copy of the memo which was annexed to the forwarding letter....I have brought the carbon copy of the inventory prepared by us on 17.08.96 and the same is Ex.PW­22/2 (20 pages).....In the suitcase no.10 at sl.no.306, 600 currency notes in the denomination of Rs.500/­ totaling Rs.3 lac (new currency) along with one visiting card of Devinder Singh, President, PHD Chamber of Commerce and Industry, Chairman nd Industrial Cables India, Ltd., Flat no.445, 2 Floor Contd....

157

Commercial Complex, Greater Kailash, New Delhi were found in the envelope (the witness has given this detail reading from Ex.PW­22/2).

CQ­Had you seen visiting card referred in the memo, Ex.PW­22/1?

Ans.Yes.

CQ­Where the card was at that time?

Ans. The visiting card was lying in the envelope in which the currency notes had been kept."

149.Since the witness has stated the aforesaid fact in answer to the questions put by the court, therefore, there is no merit in the contention of the ld.counsel for the defence that the witness had not stated this fact in his statement u/s 161 Cr.PC and he has added this fact in order to fasten a false case on the accused. Therefore, I fail to agree with the reasoning of the ld.counsel for defence.

Contd....

158

150.It has also been submitted by the ld.counsel for defence that perusal of the entry and endorsement against sl.no.344 in the inventory, Ex.PW­22/1 would show that cash of Rs.3 lacs was not recovered from the envelope in which the visiting card was kept. He has submitted that there is no mention in the said endorsement that both the cash and visiting card were found in the envelope. It may be mentioned that from suitcase no.10, it is not that only Rs.3 lacs in cash were recovered and this is not the only entry which was made in respect to suitcase no.10. Following are the entries relating to suitcase no.10 as given in the inventory, Ex.PW­22/1 from which other cash was also recovered:

Sl.No. Denomination of Amount (Rs.) Name of the Bank/Slip and Total Amount GC Notes/Currency date (Rs.) 342 100 X 1000 1,00,000.00 ANZ Grindlays Bank without 1,00,000.00 date 343 100 X 1000 1,00,000.00 OBC Shimla, Dt.05.10.93 1,00,000.00 344 500 X 600 3,00,000.00 New Currency 3,00,000.00 (One visiting card of Devinder Singh, President, PHD Chamber of Commerce and Industry, Chairman Industrial Cables India, Ltd., Flat no.445, 2nd Floor Commercial Complex, Greater Kailash, New Delhi found in the envelope) 345 500 X 100 50,000.00 SBI Karnal 50,000.00 Contd....

                                        159

346   500 X 500             2,50,000.00 Without slip                       2,50,000.00

347   500 X 300             1,50,000.00 PSB,   H   Block,   Con.Circus,    1,50,000.00
                                        New Delhi

                                                                  Total    9,50,000.00

151.If the contention of ld.counsel for the accused is accepted as correct one that since it was not mentioned in the said endorsement that the amount of Rs.3 lac was also found in the envelope, this should be inferred that the said cash was not found in the envelope, then there was no need to make the said endorsement just below this entry. In that situation the card kept in the envelope being separate and independent item should have been mentioned in the last after the entry no.347.

Moreover, the recovery witnesses have not been cross­examined on this point and no suggestion was put to them to that effect. The testimony of the recovery witnesses on this point goes unchallenged.

Contd....

160

152.If the submission made on behalf of the accused is considered as correct that the amount of Rs.3 lacs was not recovered from the envelope in which the visiting card was found kept and CBI in order to connect Devinder Singh with the accused/Sukh Ram has led false evidence that Rs.3 lacs and the visiting card were recovered from the envelope in suitcase no.10 then it would not have been difficult at all for CBI to attribute the recovery of whole amount of Rs.9,50,000/­ which were found in the suitcase no.10. If CBI wanted to fasten the accused with a false case then it would have come up with the case that whole of the cash in suitcase no.10 was received from Devinder Singh. Therefore, I do not agree with the said contention of the ld.counsel for the accused.

153.It has been argued that the said envelope was not even seized by CBI. According to him Rs.3 lacs and the said envelope being Contd....

161

the case property should have been produced in the court during trial. His further contention is the card Mark X­1 (kept in the said envelope) was not deposited in the CBI Malkhana along with other case property. In view of all these facts he argued that the recovery of cash and visiting card kept in the envelope becomes doubtful.

154.The ld.Special Public Prosecutor has rebutted the contentions of defence with cogent reasons and submitted that the recovery of visiting card Mark X­1 from the envelope which also contained Rs.3 lacs on 16.08.96 has been established from overwhelming cogent evidence. He, during his argument, has enumerated various circumstances/evidence to strengthen his argument that the recovery of the said visiting card on 16.08.96 can not be doubted. Some of those circumstances/evidence are discussed hereunder:­ Contd....

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1. S/Sh.Harish Kapoor (PW­23) and K K Goel (PW­24), although when examined in the court, did not support the prosecution case and were declared hostile but they admitted in their statements that the initials appearing on the back of the said visiting card were appended by them on 16.08.96 itself at the house of accused when all the documents pertaining to the recovery were signed. Sh.B N Jha (PW­25), Dy.Superintendent of Police, who headed the raiding party also stated that during search operation at the house of the accused on that day, after the recovery of the said cash and visiting card from the envelope, he got the said visiting card Mark­XI signed from these two witnesses. Thus, it can not be said that the same was not recovered on that day. In view of the admission by the said two independent witnesses that they had initialed the card Mark X1 at the spot on 16.08.96, it hardly matters whether the same was deposited in the malkhana or not.

2. Sh.Sunil Dutt (PW­22) in his statement in the court has proved the recovery of Rs.3 lacs and the visiting card of the co­accused/D S Choudhary from an envelope on 16.08.96. He has assigned a cogent reason for remembering the said fact as it was unusual situation that the visiting card was found in the envelope along with cash. He further stated that the said visiting card was retained by CBI officers. He stated only what was seen and remembered by him, otherwise he had no difficulty in identifying the said card in the court. He, in his statement, has stated that at that point of time he could not identify the visiting card in the court. This shows that he is a Contd....

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truthful witness and his testimony can not be doubted.

3. The search cum seizure list, Ex.PW­22/1 shows that against entry at sl.no.344, there is an endorsement to the effect that one visiting card in the name of Devinder Singh was found in the envelope. The entire cash which was shown to had been recovered and seized by CBI in the seizure list, Ex.PW­22/1, was handed over to Sh.Sunil Dutt, Asstt.Director (INV) Income Tax, Himachal Pradesh, Shimla by CBI officers on 17.08.96 in pursuance to a requisition U/s 132­A of the Income Tax Act, 1961. At the time when the said cash was taken over by Sh.Sunil Dutt, the Income Tax officials also prepared an inventory of cash seized. Similarly, in this inventory, Ex.PW­22/2, they too have made an endorsement against entry at sl.no.306 that a visiting card in the name of Devinder Singh was found in the envelope.

4. In respect to this issue, it would be pertinent to mention that this search was conducted in a different case viz.RC3(A)/96ACU­IV in the month of August, 1996 when the instant case was not even conceived and the complicity of his co­accused/Devinder Singh Choudhary was not known to CBI. As mentioned earlier that the present case was registered only in the month of November, 1996.

155.The cumulative effect of all these circumstances/evidence is that the prosecution has successfully established the recovery of Contd....

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the visiting card on that day. This evidence completely rules out the possibility of planting of the card by CBI to make out a case against these two accused viz.Sukh Ram and Devinder Singh Choudhary (since dead). In such a situation, it hardly matters that there is no entry of this card in the malkhana register of CBI.

156.It has been argued that since currency notes of Rs.3 lacs and the envelope in which it was found kept, being the case property, were not produced in the court, therefore, the recovery of the cash as shown by the prosecution becomes doubtful.

157.It is not necessary that in all the cases the case property should be produced in the court. In this case the prosecution has explained, as discussed above, that the entire cash which was recovered from the house of the accused/Sukh Ram was handed over to Sh.Sunil Dutt, Asstt.Commissioner, Income Tax, who Contd....

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deposited the same with the State Bank of India, Mandi and obtained a demand draft for the said amount. Similarly, the non seizure and non production of the said envelope in the court does not make the prosecution case, in any way, doubtful that the currency notes were not found kept in the said envelope. The evidence of S/Sh.Sunil Dutt (PW­22) and B N Jha (PW­25) and the said endorsement in the inventory list, Ex.PW­22/1 amply proves the existence of the said envelope on that day. Since this was a huge operation in a different case, therefore, it was just possible that it escaped from the notice of CBI officials and the said envelope was not seized. Thus, the recovery of Rs.3 lacs in envelope from suitcase no.10 can not be doubted merely because the said envelope was not seized by CBI.

158.During trial PW S/Sh.Harish Kapoor and K K Goel have not supported the prosecution case on the point of the recovery of the Contd....

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cash and visiting card from the envelope. On the basis of this fact, it has been argued by the ld.counsel for the defence that since a false case in respect to the recovery of currency notes of Rs.3 lacs and the visiting card from an envelope has been made out, therefore, the said two independent witnesses viz S/Sh.Harish Kapoor and K K Goel have not supported the prosecution and, therefore, the prosecution case becomes doubtful. No doubt these witnesses have not supported the prosecution case but it is most surprising that despite the fact they put their signatures on the inventory prepared by CBI at the time of recovery of the cash on 16.06.96, they resiled from the contents of the inventory. Both the witnesses were posted as Asstt.Managers in State Bank of India at Mandi holding responsible post in a Public Sector Bank. It can not be thought of that such responsible officer would put their signature on the inventory without reading its contents. Sh.K K Goel has admitted Contd....

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in his statement that "CBI people did not force us to sign the recovery list or the visiting card." Under this situation, it is not difficult to visualize the probable reason behind their resiling from their statement u/s 161 Cr.PC. The Hon'ble Supreme Court had an occasion to examine a situation like this in a case State of UP Vs. Anil Singh, AIR 1988 SC 1998 (para 17). The relevant portion from the said judgment is extracted and reproduced as follows:­ "Apart from the record of the police station the panchnama (Ex.Ka­7) to which Ramesh Chandra Dubey (DW­1) has admittedly appended his signature shows that the reporting time of crime was 9.15 p.m. DW­1 accompanied Prahlad Kumar to police station to lodge the report though he later defected to the defence. He is a political figure and social worker. Highly qualified too. He would not have signed the Panchanama if the statement therein were not true and correct."

159.Thus, the argument advanced by the ld.counsel for the accused has no force and the recovery of Rs.3 lacs of currency notes and Contd....

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visiting card in the name of Devinder Singh Choudhary can not be doubted. Moreover, this recovery has been proved by Sh.Sunil Dutt (PW­22) and Sh.B N Jha (PW­25). There is no reason to doubt the testimony of these two witnesses. They had no motive to depose falsely. Hon'ble Supreme Court in Khalak Singh Vs. State of West Bengal, 2006 III AD (Crl.) SC 657, held that there is no prohibition on conviction being recorded on the basis of the testimony of official witnesses if they are found to be trustworthy. The testimony of official witnesses in this case is trustworthy and cogent and there is no reason to disbelieve the same. It has been held in Mohd.Akbar Butt Vs. State, 138 (2007) DLT 43 (DB) that there is no presumption that the police officials are liars and that the evidence of police officials is treated in the same manner as the testimony of other witnesses and the conviction can be recorded on the basis of evidence of police officials.

Contd....

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160.Ld.counsel for defence, on basis of the statement of Sh.Hari Shankar Tandon (PW­9), has submitted that the visiting card Mark X1 was not of the co­accused/D S Choudhary, therefore, the recovery of Rs.3 lacs can not be connected with his co­ accused/D S Choudhary. The witness has stated that he remained employed with Punjab, Haryana and Delhi Chamber of Commerce and Industry (PHDCCI) from 1968 to 1993 in different capacities and during his tenure there D S Coudhary was the President of PHDCCI. It (PHDCCI) used to get the visiting card of its President printed. After seeing the card Mark X1 in the court during his statement he stated that this card was not got printed by them for accused/Devinder Singh Choudhary. He has stated that it was their practice to get the logo of PHDCCI printed on the left side of the visiting card whereas the particulars of the company with which the incumbent was associated used to get printed on the back side. He has also admitted that Devinder Contd....

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Singh Choudhary was the Chairman of Industrial Cables Ltd at the time when he was President of PHDCCI. The ld.counsel for the accused has further argued that D S Choudhary was the Director of HTL during the relevant period, therefore, he ought to have put the visiting card of Director, HTL in the envelope and not of PHDCCI to indicate that this money was in relation to the said tender of cables. These arguments carry no weight. The court, rather finds force in the submission of ld.Special Public Prosecutor that the visiting card was not put in the envelope in order to show his status but it was only for the purpose to reveal the identity of the person who had given or sent the money to accused/Sukh Ram. No person other than the co­accused/D S Choudhary would have any interest in keeping the visiting card in the envelope in which cash amount of Rs.3 lacs was kept.

161.Thus, the contention of the accused can not be believed that Contd....

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the cash recovered from the rooms on the first floor of the house of accused/Sukh Ram was kept and meant for J&K election and that was under the care and custody of Tirath Ram and the same did not belong to Sukh Ram. Further, it can not be disbelieved that the co­accused/D S Choudhary (since deceased) had nothing to do with that visiting card.

162.Now, here the question that arises is, whether on this evidence, accused/Sukh Ram can be convicted for the offence of a public servant taking gratification other than legal remuneration in respect of an official act punishable u/s 7 of the PC Act, 1988. Ld.counsel for defence has submitted that on the basis of the evidence which has come on record no offence u/s 7 of the PC Act is made out. His main contention is that there is no evidence of demand on the part of accused/Sukh Ram. According to him this main ingredient of the offence is missing. He has also Contd....

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submitted that prosecution has not led any evidence to substantiate that the accused accepted or obtained the said amount. He has further contended that assuming prosecution case as correct one, no one can believe that the accused, being a Minister, would accept such a meager amount of Rs.3 lacs for causing pecuniary advantage of securing purchase order of cable in favour of HTL of such a magnitude the value of which runs into crores of rupees.

163.He has also placed reliance on judgments cited as C M Girish Babu Vs. CBI, (2009) 3 SCC 779; State of Rajasthan Vs. Mohan Lal, AIR 2009 SC 1872; P K Gupta Vs. CBI, 2011 (4) JCC 2352; Banarasi Dass Vs. State of Haryana, 2010 (4) SCC 450; Ayya Samy Vs. State of Tamilnadu, AIR 1992 SC 644; State of Kerala Vs. C P Rao, (2011) 6 SCC 450; Stte of Maharashtra Vs. D L R Wankhede, (2009) 15 SCC 2001; A Contd....

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Subair Vs. Stae of Kerala, (2009) 6 SCC 587; State of M P Vs. Sheetla Sahay, (2009) 8 SCC 617; Suraj Mal Vs. State (Delhi Admn.), (1979) 4 SCC 725 and V Venkta Subba Rao Vs. State of A P, (2006) 13 SCC 305, to submit that mere recovery of tainted money divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in this case is not reliable. It has been noted from the above referred judgments that the ratio of law in these cases was in respect of cases where trap was laid by police or CBI on the complaint made by a complainant from whom the bribe was demanded by a public servant. In such cases it is essential to examine the complainant and prove the demand of gratification by the public servant.

164.This is the fact that there is no evidence to prove the demand on the part of the accused/Sukh Ram but I do not agree with the Contd....

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contention of the ld.counsel for the accused that demand is a necessary ingredient of the said offence. Section 7 of the Act no where mentions the word 'demand.' Generally in a case of trap the evidence of demand is laid to prove that the tainted money recovered from the possession was in pursuance to a demand made by the accused for doing or forbearing to do any official act or for showing or forbearing to show, in exercise of his official function, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person. That was why the charge framed against the accused for the offence under this section does not mention that the accused demanded the money for showing favour to his co­accused/D S Choudhary. It mentions only that "you accepted or obtained for yourself, gratification other than legal remuneration amounting to Rs.3 lacs from your co­accused/D S Choudhary, the Chairman of Haryana Telecom Limited as a motive or reward for showing in Contd....

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exercise of your official functions, favour to HTL with the Department of Telecommunication, Government of India, by allocating 3.5 LCKM of additional PIJF Cables to it vide your order dated 03.11.95 and by placing immediate order for purchase of 4 LCKM of PIJF Cables vide your order dated 08.05.96." The contention of ld.counsel for the accused, in view of this, does not deserve any serious consideration.

165.The prosecution has led ample evidence which has been discussed in the preceding paragraphs that the said money and the visiting card of his co­accused kept in an envelope was recovered from the suitcase no.10 which was found in the house of the accused. This evidence coupled with his (accused's) explanation, his statement and defence evidence led by him, which was found to be false, lead me to believe that the accused accepted or obtained the said amount from his co­accused/D S Contd....

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Choudhary for himself as gratification other than legal remuneration for the purpose mentioned in the charge. In this context, it may be mentioned that although the accused at the time of search was not present but Sh.Bir Singh, Caretaker and Sh.Rampal, PSO to Sh.Anil Sharma (son of the accused who was a minister in Himachal Pradesh) were present during the search. The accused, in order to prove his defence, moved an application dated 18.08.08 in this court to summon said Rampal (named as Ram Lal, ASI, HP Police) and his son Sh.Anil Sharma as defence witnesses. Summons were also issued for presence of Sh.Ram Lal vide order dated 21.08.08 (on the back of the application) but for reasons best to the accused, he was not examined. The prosecution has rightly submitted that non examination of this witness by the accused would raise a presumption u/s 114 (g) of the Evidence Act.

Contd....

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166.The contention of the ld.counsel for the accused that if such a huge pecuniary advantage was caused to M/s HTL, it was improbable that the accused would accept only Rs.3 lacs as bribe, is devoid of merit. It is also not the prosecution case that the accused got only this much amount in this deal which runs into crores of rupees. The prosecution case is that the amount of Rs.3 lacs which was recovered from accused was the bribe money. It is a matter of common knowledge that it is virtually impossible to get any direct evidence where both i.e bribe giver and the person who takes the bribe, worked in joint concert. In the cases of bribery we get direct evidence in that circumstance only where one of the party reports the matter for taking action.

167.Ld.counsel for accused has relied upon judgment cited as Sharad Vs. State of Maharashtra, AIR 1984 SC 1622, wherein Hon'ble Supreme Court had laid down that in a case based on Contd....

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circumstantial evidence there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of accused and must show that in all human probabilities, the act must have been done by the accused. He also referred and relied upon C Changa Reddy Vs. State of AP, (1996) 10 SCC 193, wherein it was observed by Hon'ble Supreme Court that in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. It was further laid down that the proved circumstances must be consistent only with the hypothesis of the guilt of accused and totally inconsistent with his innocence. He also cited and relied upon similar observations of Hon'ble Supreme Court in Maj.S K Kale Vs. State of Maharashtra, AIR 1977 SC 822 and M G Aggarwal Vs. State of Maharashtra, 2 SCR 405, It is settled Contd....

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position of law that a conviction can be reasonably founded of circumstantial evidence if it is wholly inconsistent with the innocence of accused and consistent only with his guilt otherwise he is entitled to the benefit of doubt. I have kept in mind the fundamental principles laid down by Hon'ble Apex Court while holding accused guilty on the basis of circumstantial evidence. In this case the inference of guilt of accused has been drawn from the facts which have been proved by the prosecution beyond reasonable doubts and thus there is no scope for the ld.counsel for accused to argue that the accused is entitled to the benefit of doubt in the present case.

168.From facts & circumstances, as discussed above, I have reached to a conclusion that the prosecution has successfully proved the commission of offence punishable u/s 7 and Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 Contd....

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against accused/Sukh Ram beyond reasonable doubt. CONSPIRACY

169.It is settled legal position as observed by Hon'ble Supreme Court in State Vs. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 (Parliament attack case) that mostly, the conspiracies are proved by the circumstantial evidence as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its object have to be inferred from the circumstances and the conduct of accused {Per Wadhwa j. in State Vs. Nalini, 1999 (2) RCR (Crl.) 682 (SC)}.

170.Accused/Sukh Ram and D S Choudhary (since deceased) have been inter alia, charged for commission of criminal conspiracy punishable u/s 120­B of IPC. On the point of conspiracy, the submission of the ld.counsel for accused, is two fold. Firstly, Contd....

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according to him, after the death of his co­accused/D S Choudhary during the trial of this case, accused/Sukh Ram can not be convicted for the offence of conspiracy. Secondly, there is no evidence to substantiate the charge of conspiracy against accused/Sukh Ram. According to him prosecution has completely failed to prove the meetings of accused/Sukh Ram with his co­accused, during the relevant period.

171.His first submission is without basis. It suffice to say that death of an accused only abates the case against him which was pending but it does not mitigate the offence alleged to has been committed by him in concert with his co­accused.

172.It is a fact that in this case there is no direct evidence to prove the existence of conspiracy. But it is a well known fact that conspiracy is hatched in private and secrecy, for which direct Contd....

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evidence would rarely be available. Existence of conspiracy, almost in every case, is proved from the attending circumstances which lead one to draw the inference about its existence. The facts and circumstances show that because of proximity of co­ ccused/D S Choudhary (since expired) with accused/Sukh Ram, M/s HTL was his most favored vendor. From the evidence which has been led by the prosecution during trial, following circumstances have emerged which lead the court to draw an irresistible conclusion that there existed a conspiracy:­

1. On 27.11.96, as deposed by Sh.Anil Kumar (PW­20) and apparent from the search list, Ex.PW­20/1, CBI had conducted the search of the office premises of M/s Haryana Telecom Limited, located at Flat no.4 and 5 DLF, Commercial Complex behind Savitri Cinema, Greater Kailash, New Delhi. From the said premises CBI, besides other documents, seized two diaries, Ex.PW­20/2 and PW­20/3 containing the addresses and telephone numbers of various persons including accused/Sukh Ram. In diary, Ex.PW­20/2 in the column 'Name & Address', the name of Mr.Sukh Ram and address as 12, Safdarjung Lane, New Delhi have been mentioned. His (Sukh Ram's) Contd....

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office and residence have been mentioned at point 'Y.' Perusal of the diary, Ex.PW­20/2 would show that it was only accused/Sukh Ram, who was the only Central Minister whose residential address has been given in it, otherwise there was no other Minister whose residential address with residence telephone number has been given. It shows the proximity of the accused persons with each other. No doubt, the availability of the name and residential address in the diary is not sufficient to prove the existence of criminal conspiracy if it is seen in isolation but certainly it proves the proximity between these two accused.

2. It has been discussed above that his co­accused/D S Choudhary (since expired) had assumed the charge as th chairman of M/s HTL from 5 September, 1995.

Document No.45 is the copy of the resolution dated 05.09.95 passed at the Board of Director's Meeting of M/s Haryana Telecom Limited issued as certified by Sh.A S Ketkar, Company Secretary. By this resolution the co­ accused/D S Choudhary was elected as Chairman of the said company. This document has been admitted by accused/D S Choudhary as is apparent from the endorsement made thereon. Needless to say that after appointment accused/D S Choudhary as Chairman of M/s HTL, this vendor had started getting favour from accused/Sukh Ram. It was the proximity of his co­ accused with accused/Sukh Ram which started giving undue dividends in the matter of allocation of cables to M/s HTL.

Contd....

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173.Following are the instances which glaringly show that the accused/Sukh Ram abused his position as public servant to obtain for himself and/or for co­accused/D S Choudhary, valuable thing or pecuniary advantage:­

i) Accused/Sukh Ram laid down certain parameters in his order dated 30.09.95 for re­allocation of cables to various vendor as barely six months were left to achieve the targets. The department, in compliance of this order, prepared the chart, Ex.PW­5/6 and re­allocated 3.51 LCKM cable to M/s HTL. This chart along with the note dated 18.10.95 (Ex.PW­2/D­1) recorded by Sh.Narendra Kumar, Director (MMS) (PW­14) was put up before the accused. In the said note, it was specifically mentioned, "however, the supply position of M/s HTL and M/s HCL remain precarious. Therefore, it is proposed not to award any overflow quantity on them." Despite that M/s HTL was allocated an additional quantity of 3.5 LCKM, vide order dated 03.11.96 passed by accused/Sukh Ram.

ii) The reason given by the accused for this increase was flimsy. Accused in his note dated 03.11.95, Ex.PW­2/9 mentioned that because of the application of criteria laid down in his order dated 30.09.95, some parties were affected, therefore, increased quantity be distributed amongst the affected vendors in view of their performance. As is evident from the said chart and note, Contd....

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the supply position of M/s HTL was very poor, as such it was not at all an affected party. As a matter of fact, it should have not been allocated any quantity out of the increased quantity.

iii) Accused vide his note dated 28.02.96, Ex.PW­2/6 asked the department to submit the details of the distribution of the remaining quantity of the cable. In compliance to the order, the department prepared the chart, Ex.PW­4/2 (placed at page 24/C of D­4) and recommended the various quantities of cables allocated to all the vendors including M/s HTL. It had recommended the allocation of 5.61 LCKM to M/s HTL. The department, however, made it clear that performance of this vendor upto February, 1996 had not been satisfactory, as it, despite its agreement, had not supplied the cables on deferred payment basis. Therefore, it was suggested to the accused that further fresh orders on M/s HTL be placed only after it executed the existing order, vide note dated 31.03.96, Ex.PW­4/1 and the note dated 02.04.96, Ex.PW­5/D­1 recorded by Sh.V K Arya, Director (MMS) and Sh.A S Bhola, Director (FIN.V) respectively. The suggestions put forward by these two officers appear to have been approved by Member (F) and Chairman, Telecom Commission vide D­4 page 17/N. The accused/Sukh Ram, overruling their reasonable suggestion, allocated a fresh quantity of 4 LCKM to this vendor vide his order dated 08.05.96. The reason for such overruling, as given by him in his said note, was "the proposal to order the placement of order will affect the timely supply of this important item in time i.e. before the onset of monsoon." The reason given by him was Contd....

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unreasonable that no prudent person would agree with it. Such an un­reasonable order was not at all possible without connivance of co­accused/D S Choudhary with accused/Sukh Ram.

iv) All the vendors, except M/s HTL, had supplied the allocated quantity of the cables against the deferred payment but this vendor in place of supplying, refused to supply the quantity allocated to it. It was brought to the notice of the accused repeatedly by the department vide note dated 18.10.95 recorded by Sh.Narendra Kumar, Director (MMS), Ex.PW­2/D­1, note dated 08.12.95 recorded by Sh.R P Hans, DDG (MM­II), Ex.PW­2/D­9, note dated 01.03.96 recorded by Mrs.Anita Soni, DDG (VLF), Ex.PW­3/2, note dated 31.03.96, Ex.PW­4/1 recorded by Sh.V K Arya and the note dated 02.04.96, Ex.PW­5/D­1 recorded by Sh.A S Bhola, Director (FIN.V) that only M/s HTL had not supplied the allocated quantity. It had even refused to supply cable on deferred payment while all the other vendors had supplied it. Despite this, in place of taking any action against M/s HTL, he rewarded it by allocating additional of 3.5 LCKM vide roder dated 03.11.95 and a quantity of 4 LCKM vide order dated 08.05.96 without any justification and much against the interest of the department.

174.It has come in evidence that on 16.08.96, CBI had searched the residential premises of accused/Sukh Ram at Mohalla Contd....

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Samkhetar, Mandi (HP). During search a total amount of Rs. 1,16,51,520/­ was recovered contained in bags and suitcases. From suitcase no.10, an amount of Rs.9,50,000/­ was recovered. Out of this amount, an amount of Rs.3 lacs in the denomination of Rs.500/­ GC Notes and a visiting card of co­accused/D S Choudhary was found contained in an envelope. It shows the nexus of accused/Sukh Ram with his co­accused/D S Choudhary and also that he (Sukh Ram) obtained an illegal gratification from his co­accused/D S Choudhary to favour M/s HTL, of which he was the Chairman, in matter of allocation of the cable.

175.Thus, the prosecution has proved the commission of offence of criminal conspiracy by accused/Sukh Ram u/s 120­B IPC read with Sections 7 and Section 13(1)(d) r/w 13(2) of PC Act, 1988.

176.On the basis of my above findings, I hold accused/Sukh Ram Contd....

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guilty of commission of offences u/s 7 and Section 13(1)(d) r/w 13(2) of PC Act, 1988 and of criminal conspiracy punishable u/s 120­B IPC read with Sections 7 and Section 13(1)(d) r/w 13(2) of PC Act, 1988 and convict him for the same. A copy of this judgment be delivered to accused free of cost.

Announced in the open                                (R P PANDEY)
Court on 17.11.2011                              SPL.JUDGE­01 (PC ACT)
                                                   ROHINI COURT:DELHI




                                                                            Contd....