Delhi District Court
C.B.I. vs . 1. Ashok Kumar Sharma on 15 September, 2014
IN THE COURT OF DINESH KUMAR SHARMA
SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI
CC No.07/13
Unique Case ID No.02406R1106042008
C.B.I. Vs. 1. ASHOK KUMAR SHARMA
S/o Sh. Keshav Ram Sharma,
R/o SFS Flat No. 26S,
Sector 8, Jasola Vihar,
New Delhi - 25.
2. SANJAY BHALLA
S/o Late Dr. Ramnath Bhalla,
R/o 12C, C/3, Sainik Farm,
New Delhi.
RC No. : AC12004A0005
u/Ss : S.120B IPC r/w Sec. 13(2) r/w 13(1)(d) POC Act,
1988, Sec.420 IPC and Sec. 471 IPC and substantive
offence u/S.120B IPC, Sec.13(1)(d) r/w 13(2) POC
Act and S.420 IPC and Sec. 471 IPC and u/S 120B
IPC, Sec. 420 IPC and Sec. 471 IPC.
Judgment announced on : 12.09.2014
Date of Order on Sentence : 15.09.2014
CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 1 of 6
ORDER ON SENTENCE
Present : Sh. Navin Giri, Ld. PP for CBI
Both the convicts produced from JC
Sh. BP Singh, Ld. counsel for Convict Ashok Kumar Sharma
Sh. SK Saxena, Ld. counsel for Convict Sanjay Bhalla
Convicts Ashok Kumar Sharma and Sanjay Bhalla have been
convicted for the offence u/S 120B IPC r/w Sec. 13(2) r/w 13(1)(d) POC
Act, 1988, Sec. 420 IPC and Sec. 471 IPC vide judgment dated 12.9.2014.
Convict Ashok Kumar Sharma has also been convicted for the substantive
offence u/S 120B IPC, sec. 13(1)(d) r/w 13(2) of the POC Act and Sec. 420
IPC and Sec. 471 IPC and convict Sanjay Bhalla has also been convicted
for the substantive offence u/S 120B IPC, Sec. 420 IPC and Sec. 471 IPC.
1.0 Sh. Navin Giri, Ld. PP for CBI has submitted that in this case
the prestige of the country was involved and it has been damaged in the
eyes of Royal Govt. of Bhutan. A prayer for maximum punishment has
been made. It has also been submitted that while imposing sentence the
court may consider Section 16 of POC Act, 1988.
2.0 Sh. BP Singh, Ld. counsel for convict Ashok Kumar Sharma
CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 2 of 6
submitted that convict is 62 years of age. His only son is settled in London
and therefore, convict is the only support person for his old and ailing wife.
Ld. counsel submitted that Smt. Kusum Sharma, wife of convict is
suffering from various ailments and therefore, needs regular attention. It
has further been submitted that convict had a very clean record. He joined
Indian Engineering Services in the year 1976 and enjoyed an unblemished
career till this case. The convict lost his job on account of this case and
thereafter got an employment with a multi national company called
General Dynamics and is posted as Senior Vice President. Ld. counsel
submitted that convict is sole bread earner not only for his family but also
for the family of his younger brother who resides in his native village at
Saharanpur. Ld. counsel submitted that a lenient view may be taken.
Reliance has been placed upon BG Goswami Vs. Delhi Administration,
1973 AIR 1457 and Amar Singh Vs. CBI, Criminal Appeal No.52/2005
decided on 22.07.2010.
2.1 Sh. SK Saxena, Ld. counsel for convict Sanjay Bhalla
submitted that the convict is a qualified engineer and has risen from a very
humble family. His father was a teacher, who had imbibed the value
education in the convict. Ld. counsel submitted that convict is sole earning
member of his family. He has two children. The elder daughter is pursuing
the under graduation course in University of Arizona, USA and younger
CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 3 of 6
son is studying in 10th Class. It has been submitted that if the convict is sent
behind the bar, the eduction of both the children will be discontinued and
the entire family will be ruined. A prayer has been made for lenient view.
3.0 I have considered the submissions.
4.0 Corruption undermines and violates human rights and
systematic corruption is a human rights' violation in itself, as it leads to
systematic economic crimes. Reference can be made to State of
Maharashtra through CBI, Anti Corruption Branch, Mumbai Vs.
Balakrishna Dattatrya Kumbhar, (2012) 12 SCC 384.
In the present case, convicts in pursuance to the conspiracy
got M/s. Bhutan Mystical firm owned by A2 appointed as an agent in the
Telecommunication Project to be executed at Bhutan. It is an admitted case
that A2 had received a sum of around 70,000 US $ in the year 2003. As per
internet, US dollar was around Rs.48/ per dollar in the year 2003. Convict
Ashok Kumar Sharma is around 62 years of age and his only son resides in
London and he is residing here alongwith his ailing wife. Convict Sanjay
Bhalla is also the sole bread earner of his family. Convicts have already
faced the trial for around 10 years.
4.1 In the facts and circumstances, the convicts are sentenced as
CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 4 of 6
follows :
Convict Ashok Kumar Sharma
Sl. Punishment Sentence
No.
(i) Sec.120B IPC r/w Sec. 13(2) r/w 13(1)(d) RI for 3 years and a fine of Rs.2
POC Act, 1988, Sec. 420 IPC and Sec. lakhs in default SI for 1 year
471 IPC
(ii) Sec.13(1)(d) r/w S.13(2) of POC Act RI for 3 years and a fine of Rs.2
lakhs in default SI for 1 year
(iii) Sec. 420 IPC RI for 3 years and a fine of Rs.2
lakhs in default SI for 1 year
(iv) Sec. 471 IPC RI for 3 years and a fine of Rs.2
lakhs in default SI for 1 year
(v) Sec.120B IPC RI for 3 years and a fine of Rs.2
lakhs in default SI for 1 year
Convict Sanjay Bhalla
Sl. Punishment Sentence
No.
(i) Sec.120B IPC r/w Sec. 13(2) r/w 13(1)(d) RI for 3 years and a fine of Rs.7
POC Act, 1988, Sec. 420 IPC and Sec. lakhs in default SI for 1 year
471 IPC
(ii) Sec.120B IPC RI for 3 years and a fine of Rs.7
lakhs in default SI for 1 year
(iii) Sec. 420 IPC RI for 3 years and a fine of Rs.7
lakhs in default SI for 1 year
(iv) Sec. 471 IPC RI for 3 years and a fine of Rs.7
lakhs in default SI for 1 year
CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 5 of 6
All the sentences shall run concurrently.
Benefit of S.428 Cr.P.C. be given to the convicts.
5.0 A copy of the judgment and order on sentence be given to
the convict free of cost.
6.0 File be consigned to RR.
Announced in open Court (Dinesh Kumar Sharma)
today on 15.09.2014 Spl. Judge (PC Act) : CBI - 01
Saket Courts : New Delhi.
CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 6 of 6
IN THE COURT OF DINESH KUMAR SHARMA
SPECIAL JUDGE (PC ACT), CBI 01,
SAKET COURTS, NEW DELHI
CC No.07/13
Unique Case ID No.02406R1106042008
C.B.I. Vs. 1. ASHOK KUMAR SHARMA
S/o Sh. Keshav Ram Sharma,
R/o SFS Flat No. 26S,
Sector 8, Jasola Vihar,
New Delhi - 25.
2. SANJAY BHALLA
S/o Late Dr. Ramnath Bhalla,
R/o 12C, C/3, Sainik Farm,
New Delhi.
RC No. : AC12004A0005
u/Ss : 120B IPC, 420/468/471 r/w S.120B IPC and
S.13(1)(d) r/w S.13(2) of POC Act r/w S.120B IPC .
Substantive charge u/S.420/468/471 IPC and S.13(2) r/w
S.13(1)(d) of POC Act, 1988.
Date of Institution: 31.12.2007
Received by transfer on : 01.04.2013
Arguments Concluded on : 03.09.2014
Date of Decision : 12.09.2014
CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 7 of 6
Appearances:
Sh. Navin Giri, Ld. PP for CBI
Sh. B.P. Singh, Ld. Counsel for A1 Ashok Kumar Sharma
Sh. SK Saxena, Ld. Counsel for A2 Sanjay Bhalla
JUDGMENT
1.0 M/s. Bhutan Telecommunication Corporation, Bhutan (hereinafter referred to as Bhutan Telecom) floated a tender for a project of survey, design, planning, engineering, supply, installation, testing and commissioning of GSM 900 based digital cellular mobile network, Phase I, on 25.05.2002. It was limited tender inquiry and Telecommunications Consultants India Ltd. (hereinafter referred to as "TCIL") was not invited initially to participate. Initially the tender documents were issued to Ericsson India Ltd. (hereinafter referred to as EIL), however, EIL was not interested in executing the project on turn key basis and therefore, EIL in discussion with TCIL asked M/s. Bhutam Telecom to issue tender documents to TCIL on its behalf. It was decided that turn key project would be front ended by TCIL and supported by Ericsson for the GSM part.
Sh. Ashok Kumar Sharma (hereinafter referred to as A1) was appointed as Country Manager by TCIL for the said project and vide noting dated 16.08.2002 he allegedly gave wrong information that M/s. Bhutan Mystical is a locally registered company in Bhutan with good local contacts and recommended its appointment as an Agent for the project. A1 CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 8 of 6 also mentioned that during his recent visit to Bhutan said M/s. Bhutan Mystical vide its letter dated 21.07.2002 had approached him for such appointment and was of great help in liaison work. An agency agreement dated 30.08.2002 was signed by Sh. Sanjay Bhalla (hereinafter referred to as A2) on behalf of M/s. Bhutan Mystical.
The financial bid of said tender was opened by M/s. Bhutan Telecom on 02.09.2002 and offer of Mitsui was found L1 and of TCIL as L2. In order to win the contract, TCIL pursued the matter with Ministry of External Affairs (MEA), Govt. of India and requested it under grant and / or soft loan to the Royal Govt. of Bhutan (RGOB). During January 2003, MEA agreed to fund the project as grant to RGOB. The Govt. of India also agreed to fund different components of the project including Annual Maintenance Contract, Training Package, Tower Package, Power Supply and Air Control etc. The work was awarded to TCIL, which comprised of main component of US $ 54,40,056.04 to be paid by M/s. Bhutan Telecom and a component of US $ 24,45,114.63 payable in Indian Rupees to be paid by Ministry of External Affairs, Govt. of India by way of grants towards supplies from India and TCIL services. The tender was awarded to TCIL by Bhutan Telecom for the GSM Project and contract to this effect was signed on 30.01.2003. During the relevant period, there were no written guidelines in TCIL except some RBI guidelines regarding appointment of agent in foreign projects. However, the agents were being appointed CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 9 of 6 invariably in such projects. Such agent were normally appointed on the basis of feed back/report submitted by Country Incharge. The country Incharge was supposed to discuss the issue with the concerned Indian Embassy to seek details of the prospective parties. The country Incharge was expected to explore the possibility of appointing a suitable agent who can help TCIL in securing / executing the contract.
Investigation revealed that in connection with the said project A1 alongwith A2 and Sh. NN Verma (PW13) the then GM (S&WT), TCIL visited Bhutan for the first time during the period from 08th to 11th August 2003. During this visit, A1 and A2 visited the office of M/s. Bhutan Mystical Tours and Adventures (BMTA), Post Box - 887, Thimpu, Bhutan and met manger of the firm Sh. Sithar Tamang (PW16). M/s. BMTA is a proprietorship firm and used to deals in the business of arranging tours and travels for the visitors throughout Bhutan. A1 and A2 asked Sh. Tamang to quote the rates for providing transportation, accommodation for the Indian delegates who shall be visiting Bhutan in connection with the said projects. A1 and A2 told Mr. Tamang that in connection with the said project number of persons shall be visiting Bhutan and requested him to quote the rates on the letter head of M/s. BMTA. However, M/s. TCIL never availed any service from BMTA and the accused persons never met Sh. Tamang again thereafter.
Investigation revealed that after returning back from Bhutan CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 10 of 6 A1 initiated a note on 16.08.02 seeking approval for appointment of M/s. Bhutan Mystical, Bhutan stating it to be a company locally registered in Bhutan with good local contacts, as agent for the said project. A1 further noted that M/s. Bhutan Mystical had approached TCIL vide its letter dated 21.07.2002 for appointment as agent on agency commission of 6%. However, after prolonged negotiation, the agency commission was fixed at 3% of TCIL contract value. Upon such note, Sh. KB Batra (PW7) the then ED (F&C) vide noting dated 20.08.2002 asked A1 to seek comments from Indian Embassy, Bhutan before appointing above firm as agent. Thereafter, purportedly A1 sent letter dated 20.08.2002 relating to this to Sh. Vinod Kumar, Dy. Chief of Mission, Indian Embassy, Bhutan, A1 mentioned in his noting dated 28.08.2002 that no reply has been received from Indian Embassy and also mentioned that date of submitting the tender documents is very close, therefore, appointment of agent may be cleared. A1 was authorised to sign the agency agreement during his visit to Bhutan in discussion with Indian Embassy.
A1 and A2 again visited Bhutan in last week of August 2002 for submitting the tender document and to sign the agency document. A1 after returning from Bhutan, vide his noting dated 04.09.2002 mentioned that meeting was held with Sh. Vinod Kumar, Dy. Chief of Indian Embassy, Bhutan on 30.08.2002 who confirmed that M/s. Bhutan Mystical is registered and approved for providing logistical support to TCIL. It was CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 11 of 6 informed that agency agreement was signed with M/s. Bhutan Mystical on 30.08.2002 and such appointment was approved by Sh. SK Tandon, the then CMD.
Investigation revealed that A1 and A2 got hold of the letter head of M/s. BMTA which facilitated A2 to imitate the format of the said letter head and use the same unauthorizedly for future correspondence with TCIL by opening another firm in the name of M/s. Bhutan Mystical owned by A2. Investigation revealed that there was no group of companies in the name of M/s. Bhutan Mystical in Bhutan and letter dated 21.07.2002 was on the letter head of M/s. BMTA and not M/s. Bhutan Mystical. It was also found that the alleged discussion between A1 and representative of M/s. Bhutan Mystical as mentioned by A1 in his noting dated 16.08.2002, was in the knowledge of Sh. NN Verma who was accompanying the accused persons throughout the said visit to Bhutan.
Investigation revealed that the letter dated 20.08.2002 addressed to Indian Embassy for verifying M/s. Bhutan Mystical was infact withheld by A1 and never despatched from TCIL office. Investigation also revealed that letter dated 21.07.2002 purportedly written by M/s. BMTA on the basis of which A1 had recommended appointment of the agent had infact not been issued by the firm and signature of Sh. Sithar Tamang (PW16) had been forged. The investigation further revealed that M/s. Bhutan Mystical is not a group of companies and M/s. BMTA is sole CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 12 of 6 proprietorship concern. M/s. BMTA was registered with the Association of Bhutan Tour Operators and Sh. Tshewang Dorji is the sole proprietor of the firm. It was also revealed that the Indian Embassy in interaction with A1 had only confirmed that M/s. BMTA is the company associated with the Association of Bhutan Tour and Operators. The investigation further revealed that the agency agreement dated 30.08.2002 was signed by A2 on behalf of M/s. Bhutan Mystical, Thimpu, Bhutan. However, A1 in his noting dated 04.09.2002 deliberately did not disclose the said fact. It was noted that as per the practice followed in case of other agency agreements, the said agency agreement did not bear name of the authorized signatories and seal of the firm, whereas in the letter dated 21.07.2002, the name of PW16 Sh. Sithar Tamang has been mentioned as Director of the firm. The investigation revealed that M/s. Bhutan Mystical opened its account only on 31.01.2003 i.e. much after signing of the said agreement. The investigation further revealed that M/s. Bhutan Mystical was not even in existence on date of signing the agency agreement and the same was floated by A2 subsequently to encash the payment received as agency commission from TCIL. Investigation further revealed that another letter dated 29.08.2002 was purportedly written by M/s. BMTA authorizing an Indian Company, M/s. Bhutan Mystical, B130, Lajpat Nagar - I, New Delhi - 24, to do business on its behalf. A1 did not refer this letter in his noting dated 04.09.2002 and Sh. Sithar Tamang (PW16) also disowned the CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 13 of 6 same and refused to have met the accused persons on 29.08.2002.
Investigation revealed that an MoU was purportedly signed between M/s. BMTA, Thimpu, Bhutan and M/s. Bhutan Mystical, B130, Lajpat Nagar - I, New Delhi - 24, on 15.05.2002 vide which both the firms agreed to promote business of mutual interest in their respective country. The said MoU was purportedly faxed on 21.05.2002 to M/s. Bhutan Mystical, New Delhi by M/s. BMTA through its fax No. 9752 325468, however, it was found that this MoU was forged and fabricated and no such MoU was entered into between the two firms. PW16 stated that neither he signed any MoU nor the same was sent through his office fax number.
Investigation revealed that M/s. Ugen Trading House, Post Box No.231, Thimpu, Bhutan owned by Sh. Ugen Norbu (PW3) approached TCIL for appointment as an agent and wrote a letter dated 14.08.2002 to A1. However, A1 did not process this letter to show undue favor to A2. It was found that Sh. Ugen Norbu was in touch with A1 and other officials of TCIL and he arranged for accommodation, transportation etc. for them whenever they visited Bhutan in connection with the said project.
In the meanwhile, A2 on behalf of his firm M/s. Mark Tech India (MTI) signed an MoU dated 23.01.2003 with Sh. Ugen Norbu of Ugen Trading House for compensation of marketing promotion and to CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 14 of 6 provide logistic support for Bhutan GSM Project on payment of @ 2% of the contract value received from M/s. Bhutan Telecom. The said MoU was witnessed by A1. However, A1 did not bring this MoU on record. The plea of the CBI is that whereas, Sh. Ugen Norbu was ready to provide services on the agency commission of 2%. A1 and A2 caused wrongful loss to the public exchequer by charging agency commission @ 3%. Investigation revealed that on 04.10.2002 A1 wrote a letter to Sh. Ugen Norbu assuring him that TCIL will compensate his marketing efforts to the extent of 1% through one of its associates and on the same day A2 as Chairman of M/s. MTI, sent a communication to Sh. Ugen Norbu inter alia mentioning that it will compensate the marketing efforts of M/s. Ugen Trading House upto 1% of the initial contract value awarded to TCIL. These letters were also not brought on record by A1. The accused persons also concealed the factum of award of agency commission by M/s. Bhutan Mystical to Sh. Ugen Norbu and unauthorizedly assured him to accommodate within the agency commission with A2. Against agency commission, a total sum of US $ 1,54,375.78 was released to M/s. Bhutan Mystical as 3% of the main component portion of the project. M/s. Bhutan Mystical further requested TCIL for further payment of agency commission of Govt. of India, i.e. 3% of US $ 24,55,114.63 i.e. US $ 73,653..44 to be paid in Indian currency. However, no further payments were made to the firm. CBI has alleged that A2 did not carry out any work as stipulated in the terms and conditions of CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 15 of 6 the agency agreement dated 30.08.2002 and minted huge money without doing any actual work in conspiracy with A1.
The investigation concluded inter alia as under :
i) A1 in conspiracy with A2 appointed M/s. Bhutan Mystical a non existent firm as an agent on the basis of forged document ;
ii) The purported MoU dated 15.05.2002 signed between M/s. BMTA, Thimpu, Bhutan and M/s. Bhutan Mystical, B130, Lajpat Nagar - I, New Delhi, was also a forged document ;
iii) The letters dated 21.07.2002 and 29.08.2002 purportedly written by M/s. BMTA were forged and fabricated ;
iv) A1 concealed the material fact in his official notings regarding the status of M/s. Bhutan Mystical and the offer of Mr. Ugen Norbu to render services on lesser commission ;
v) A1 used and processed forged letters of M/s. BMTA, Thimpu, Bhutan in conspiracy with A2 and abused his official position to show undue favour to A2 ;
vi) M/s. Bhutan Mystical was appointed as an agent in an illegal manner whereby causing wrongful loss to public exchequer and causing wrongful gain to A2 ; and
vii)The MoU dated 23.01.2003 between M/s. MTI and M/s. Ugen Trading House was never brought to the knowledge of TCIL.CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 16 of 6
The chargesheet in this case was filed u/Ss.13(2) r/w S.13(1)
(d) of POC Act, 1988 and S.120B/420/467/468/471 IPC.
2.0 Being a prima facie case, charges u/Ss.120B IPC, 420/468/471 r/w S.120B IPC and S.13(1)(d) r/w S.13(2) of POC Act r/w S. 120B IPC were framed against the accused persons vide detailed order dated 19.12.2011. Separate charge u/S.420/468/471 IPC and S.13(2) r/w S. 13(1)(d) of POC Act, 1988 against A1 and u/S.420/468/471 IPC against A2 was also framed. The accused persons pleaded not guilty and claimed trial. 3.0 The prosecution examined 16 witnesses in support of its case. 3.1 PW1 Ms. Kamaljeet Kaur Panag from Standard Chartered Bank, proved the account opening form of M/s. Bhutan Mystical as Ex.PW1/A. The witness stated that this account was opened by A2 with South Extension Branch, New Delhi on 31.01.2003. The statement of account of said account from period April 2003 till September 2004 has been proved as Ex.PW1/B. In the said account the amount in the foreign currencies were remitted on five occasions, the details of which herein below :
(i) US $ 97771(equivalent to Indian Rs.45,74,871.52) credited on 19.05.03
(ii) US $ 10563.66 (equivalent to Indian Rs.4,76,216.40) credited on 6.10.03
(iii)US $ 18926.00 equivalent to Indian Rs.8,60,144.11 credited on 26.12.03.
(iv)US $ 2731.31 equivalent to Indian Rs.1,22,368.12 credited on 11.2.04 CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 17 of 6
(v) US $ 24,248.81 equivalent to Indian Rs. 10,58,480.37 credited on 15.4.04.
In the cross examination on behalf of A2, the witness admitted that there is no stamp of the bank or certificate either as per the Bankers Book of Evidence Act or as required u/S.65B of Evidence Act. 3.2 PW2 Sh. AK Duggal joined TCIL in 1988 as Dy. Manager (Finance). He deposed that as per practice agents are appointed on foreign projects and country head alongwith top management takes a decision about the incumbent. The witness stated that normally nationals of that country of which the project pertained to are appointed as agents in such foreign project, as they have good liaison in such project. The witness proved the draft agency agreement, Ex.PW2/A entered into between TCIL and M/s. Bhutan Mystical, PO Box No.887, Bhutan. The witness also proved the modifications / suggestions in the draft agreement and submitted the same for approval of CMD. He stated that it was approved by the department. However, the witness had no knowledge about the subsequent developments. PW2 proved the agency agreement dated 30.08.2002 between TCIL and M/s. Bhutan Mystical executed at Thimpu, Bhutan as Ex.PW2/B and proved that the same was signed by A1. The witness deposed that agency commission is a commercial aspect which was decided by the management and it varies from project to project and CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 18 of 6 may be from 1% to 10% of the contract money. The witness did not make any comment that whether 3% agency commission is normal, low or high as it depends on the particular contract. PW2 deposed that as per terms conferred in the draft agreement as well as in the actual agreement, the agent could appoint subagent but with the written approval of principal. In respect of subagency agreement which is between M/s. MTI and M/s. Ugen Trading House dated 25.01.2003, Ex.PW2/C the witness stated that it cannot be said to be subagency agreement because M/s. MTI was not their agent and TCIL was not signatory / party to such agreement. PW2 was shown letter dated 09.12.2003, Ex.PW2/D of RBI to TCIL whereby it was advised that payment of sub agency commission in foreign currency to an Indian entity can be paid in foreign currency provided foreign exchange receipts are from BTC under the global tender. In the cross examination on behalf of A1, the witness admitted that there are no codified rule for appointment of agent or process of execution of any agreement for agency. He stated that agents can be appointed by Board of Directors and Chairman. In the cross examination on behalf of A2, the witness admitted that in almost all cases or substantial cases in overseas projects, the agents are appointed invariably and they can be appointed at any stage i.e. before, during or after the submission of tender bids. On being confronted, the witness admitted that he had told CBI that agents are appointed before submitting tender bids. It was decided that there is no prohibition of CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 19 of 6 appointment of any Indian as agent for any overseas project. The witness admitted that signing of an agreement with M/s. Bhutan Mystical was approved by CMD on 04.09.2002. The witness admitted that agency commission of overseas branch can be upto 10%.
3.3 PW3 Sh. Ugen Norbu was a star witness. He deposed on oath that in 1997 he started business under the name and style of Ugen Trading House dealing in IT Communication, Tourism etc. The witness stated that in 2000, he made representation to M/s. Bhutan Telecom and Bhutan Telecom Authority regarding the Motorola Mobile Network but at that time M/s. Bhutan Telecom did not shown any interest. In 2002, Bhutan Telecom floated a tender for GSM Network in Bhutan. Sh. Ugen Norbu got in touch with EIL in this regard. Initially, EIL showed their interest however, later on, on account of commercial tenders conveyed that some other partner may be engaged to do the installation and EIL would be interested in supplying the equipments. EIL advised Ugen Norbu to tie up with TCIL for the execution part. Sh. Ugen Norbu contacted Sh. NN Verma of TCIL and also got in touch with A1. PW3 stated that he received a mail on 06.08.2002 from A1 that they would be visiting Bhutan. PW3 stated that A1 and Sh. NN Verma introduced A2 and A1 informed this witness that his company i.e. M/s. Ugen Trading House cannot be appointed as an agent directly and suggested that he should work with one CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 20 of 6 of TCIL's associate i. e. M/s Mark Tech India. A2 was introduced as the owner of said M/s Mark Tech India. The witness stated that A1 informed him that since TCIL cannot sign the agreement with him as an agent in Bhutan, he should sign the MoU with A2 Sanjay Bhalla, upon which Sh. Ugen Norbu signed the MoU dated 23.01.2003, Ex.PW3/A at the instance of A1. The witness further stated that he visited TCIL office on several occasions to meet A1 and Sh. NN Verma and also met CMD and Mr. Chander Shekhar, Director (Finance), TCIL for the reason that he had not received the payments from A2. The witness was told that the payment had already been released to his company and also showed him the receipts. The witness deposed that he was shocked to see that the payment was not made to his company but it was made in the name of M/s Bhutan Mystical Tours India at Lajpat Nagar, New Delhi and the receipts were also issued by such company. Sh. Ugen Norbu stated that said Sh. Chander Shekhar gave him two letters i.e. letter dated 29.08.2002, Ex.PW3/B on the letter head of M/s. BMTA purportedly signed by PW16 Sithar Tamang and letter dated 21.07.2002, Ex.PW3/C, for verification. The witness wrote letter dated 30.06.2004, Ex.PW3/D to said Mr. Chander Shekhar reiterating that M/s. BMTA is not his company. The witness further informed vide this letter that he met the Manager of M/s. BMTA Mr. Keunzang Wangdi who had no knowledge about this issue. Sh. Ugen Norbu also sent a old and new letterhead of M/s. BMTA to Mr. Chander CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 21 of 6 Shekhar. The witness stated that he made certain inquiries and found that M/s. BMTA was a registered company with Bhutan Tourism Authority and he contacted Sh. Sithar Tamang one of the staff of M/s. BMTA. Mr. Sithar Tamang denied to have signed letters dated 21.07.2002 and 29.08.2002. Sh. Ugen Norbu stated that he received the amount of Rs.28 lacs from A2 and had to receive the balance payment of approximately Rs.38 lacs. The witness also met First Secretary of Indian Embassy in Bhutan and made a complaint about this. PW3 proved the letter dated 06.07.2004 addressed to A2 demanding his balance payment. The witness also proved the letter dated 14.08.2002, Ex.PW3/F written to Group General Manager, TCIL. This document was not relied upon document and my Ld. Predecessor has made a specific remark that this will not be read in evidence unless and untill specific permission has been granted by the court in this regard. In the cross examination on behalf of A1, the witness stated that he had met A1, A2 and Sh. NN Verma several times in Bhutan prior to 31.08.2002 for appointment as an agent. The witness reiterated that he signed the MoU dated 23.01.2003, Ex.PW3/C at the instance of A1. The witness also reiterated that A1 had informed him that he cannot be appointed as an agent. In the cross examination on behalf of A2, the witness admitted that agent gets the commission only if the contract is awarded and not otherwise and an agent has to explore and develop his proper contracts for securing agencies and in this money is also required to be spent in order to CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 22 of 6 achieve desirable result. The witness reiterated that he came to know about the GSM Project in question in 2002 and he was pursuing the development in the matter. It came in the cross examination of this witness that he was appointed as agent by M/s Erricson (Sweden) @ 3% agency commission for the expansion of the project in question. It also came in the cross examination of this witness that Govt. of India requested Board of Directors of BTC in which one of his relative was on board, to get the contract awarded to TCIL and the board of directors /Govt. of Bhutan responded to the GOI that they can consider their request if the difference in the price bid of L1 and L2 is given to Govt of Bhutan in any shape either by grant or otherwise. The witness admitted that contract was given to TCIL only after GOI agreed to replenish the gap between L1 and L2. The witness denied the suggestion that he came into the picture only w.e.f. 23.01.2003 after MoU between his company and M/s. MTI was signed. The witness stated that he started communication with TCIL from July 2002 onwards after the introduction from Erricson Team. The witness admitted to have sent the letter dated 07.03.2003, Ex.PW3/DB to A2 regarding release of initial compensation @ 1%. The witness also admitted to have received a letter dated 04.10.2002 from A1 regarding the confirmation from the side of TCIL for payment of compensation to the extent of 1% of the cost of award for his marketing efforts. The witness stated that he replied the same and stated that commission was 2% as per CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 23 of 6 MoU dated 23.01.2003. The defence put a suggestion to PW3 that he had grudge against A2 as he i.e. PW3 was not paid the residue amount. This suggestion was specifically denied by the witness. The witness denied the suggestion that he was or is part and parcel of M/s BMTA and that was the reason that the payment due to BMTA was paid to him.
3.4 PW4 Sh. Sanjay Kumar joined TCIL in July 1997 as Executive Trainee and rose to the rank of Dy. Manager. His duty was to prepare technical bids for various projects. The witness was associated with GSM project of Bhutan Telecom since inception. PW4 stated that he alongwith A1 and Sh. NN Verma was associated with the said project and had visited Thimpu, Bhutan in connection with said project. PW4 stated that he had seen and met A2 in Bhutan. The witness stated that his role was limited to technical aspect and it was not related to him that who and how the agent is appointed. The witness proved the Financial Noting dated 26.09.2002 made by him on Ex.PW4/A in file Ex.PW13/B (D5). The breakup of loading and margins and agency commission is mentioned in the noting dated 27.08.2002 in file Ex.PW13/B. The witness stated that his role in financial bid is only the calculation based on the vendor quotes and the margins decided by the Board. Upon being permitted by the court, in answer to a leading question put by Ld. PP, the witness stated that he had met A2 in Bhutan but he never knew that he has been appointed as an CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 24 of 6 agent. In the cross examination on behalf of A1, the witness stated that he had no knowledge about the profitability of the project. In the cross examination on behalf of A2, the witness confirmed that TCIL was authorized to bid only on account of arrangements with the Ericsson. He stated that this project was partly funded by the Government. The witness admitted that in this project, the Ministry of External Affairs had given the grant. The witness also admitted that he met A2 in the negotiation meeting before the financial bid in the office of Bhutan Telecom. 3.5 PW5 Sh. Vinod Behari Mathur had joined TCIL in 1986 and retired from the post of GM (Foreign Project Finance) on 30.04.2005. The duties of PW5 were relating to vetting of foreign projects and payment to the concerned suppliers, agents, preparation of budgets and Management Information System. He stated that according to RBI guidelines, the agents in a competitive bidding projects can be appointed after the approval of RBI. He stated that there is no RBI guidelines that any Indian cannot be appointed agent in foreign projects. However, he stated that mostly foreign agents are appointed for looking after the interest of the TCIL overseas projects. In respect of the commission, the witness stated that agency commission is paid to agents depending on the contract conditions. The foreign commission is paid on the foreign portion of the payment received and Indian commission is paid on the Indian payment, if any received. CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 25 of 6 The witness proved the noting (N1) dated 07.03.2003 moved by A1, Ex.PW5/A in file Ex.PW15/J (D4) vide which permission was sought for release of payments and direct transfer in account No.52805035156 Standard Chartered Bank, South Extension Branch, New Delhi, India in favour of M/s. Bhutan Mystical. This was duly approved by Management. The witness proved the letter dated 18.03.2003 written by him to M/s. Bhutan Mystical as Ex.PW5/B regarding liability for the deduction of tax at source. The witness also proved the noting dated 18.08.2003 regarding release of further agency commission which was approved at the highest authorities. PW5 also proved the letter dated 21.04.2003 as Ex.PW5/D regarding dishonour of draft. No material cross examination was done on behalf of A1. In the cross examination on behalf of A2, the witness admitted to have received the letter dated 17.01.2004 from M/s. Bhutan Mystical addressed to CMD, TCIL as Ex.PW5/DA. The letter was regarding release of agency commission. The witness stated that he had duly replied this letter vide communication dated 09.02.2004, Ex.PW5/DB. The witness also proved the statement indicating the amount of bill released and the balance outstanding as Ex.PW5/DB1. PW5 also proved the noting dated Ex.PW5/DC moved by Sh. Ghanshyam Sharma, Dy. Manager, FPF dated 14.11.2003 on which A1 had made a note at portion Ex.PW5/DD.
CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 26 of 6 3.6 PW6 Sh. Sameer Sinha, Sr. Manager (Marketing), EIL was associated with GSM project of Bhutan Telecom. The witness stated that it was a close tender as only few parties had been invited and tender documents were provided to EIL. It being a small project and EIL not based and present in Bhutan and therefore, it was not feasible to execute the project. EIL requested M/s. Bhutan Telecom to permit them to associate one more party who could execute the work. EIL undertook that they would support such party provided the equipments to be provided were of Ericsson. TCIL being an old associate and interested party was joined in the project. Sh. Sameer Sinha stated that during the relevant period M/s Ugen Trading House (UTH) approached them for appointment of agents for local assistance. EIL advised UTH that they are not doing the project directly and that TCIL was doing it for them. The bid was submitted by TCIL to Bhutan Telecom. It came in his evidence that later on in 2004 or 2005, Ericsson directly dealt with Bhutan Telecom for expansion of network and M/s UTH was appointed agent by EIL at the rate of 3% commission of the cost of equipments. In the cross examination on behalf of A2 the witness identified the letter dated 02.07.2002, Ex.PW6/A addressed to Mr. Sangey Tenzing, Managing Director, M/s Bhutan Telecom, Thimphu, whereby the request was made that bid to be submitted through TCIL and Ericsson shall support TCIL during the expansion of project. A request was made to issue the tender CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 27 of 6 documents to TCIL and reference point was "A1". The witness also proved the letter dated 12.07.2002, Ex.PW6/DB of M/s. Bhutan Telecom whereby the request was accepted. The witness proved the letter dated 17.07.2002 Ex.PW6/DC addressed to A1 whereby M/s. Bhutan Telecom GSM tender documents were handed over to TCIL. TCIL vide their communication dated 16.08.2002, Ex.PW6/DD informed about the development in the project. The letter dated 28.08.2002 Ex.PW6/DE of EIL to M/s. Bhutan Telecom regarding the approval of GSM installation. The documents were submitted to the IO vide communication dated 06.05.2005 Ex.PW6/DF. In the cross examination, the witness admitted that after the completion of the work by TCIL regarding GSM in Bhutan, the expansion work of the same was taken over by M/s. Ericsson India Ltd. He also admitted that expansion work project was much less in the cost as compared to the main contract executed by TCIL.
3.7 PW7 Sh. Kulbhushan Batra, the then Executive Director (Finance & Commerce) TCIL deposed that at the relevant time he was Incharge of local projects in India and civil projects in India and abroad and commercial functions of the company such as agency agreements financial & commercial vetting part. He deposed that Country Incharge was responsible for proposing the agent if required, and such proposal used to be sent to the finance. The finance used to see whether the CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 28 of 6 proposal is as per the board approved limits for agency fee and within RBI guidelines. The finance also used to impress to seek comments of the Indian Embassy of the concerned company. He deposed that such agents should have good contracts in the country where the work was to be executed and normally a native of that country and should have logistics to support the contract. The witness further deposed that Country head could propose the name or names whom he wants to be appointed as agent and then short listing is done by management as per the approval of CMD. In regard to the commission percentage of such agent, the witness deposed that Board approved limit was 7.5% but it could be enhanced up to 12.5% as per RBI guidelines. The commission could further be enhanced subject to approval from RBI. PW7 stated that M/s Bhutan Mystical Tours and Adventures was agent for said job for Bhutan Telecom at 3% agency commission. On perusal of agreement dtd. 30/8/02, Ex.PW2/D, the witness stated that in the said agreement name of the person who had signed on behalf of M/s Bhutan Mystical was not given and stamp of M/s Bhutan Mystical was also missing. The agreement was also not signed in the presence of any independent witness. PW7 proved his noting dtd. 20.8.2002 as Ex.PW7/A in file Ex.PW15/H (D3) whereby he had advised to write to Embassy and seek the comments from Indian Embassy in Bhutan. The witness further stated that the file was again presented before him on 28.8.02 with the noting that no reply has been received from CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 29 of 6 Embassy. PW7 stated that on this, vide noting Ex.PW7/B, he authorised A1 to discuss the matter with Embassy and try to get a letter and if not feasible on the basis of discussion, decision may be taken to sign the agreement. The witness stated that M/s Bhutan Mystical suggested that it was a company of Bhutan. The witness further stated that normally an agent cannot appoint any subagent. He further deposed that no permission was sought from TCIL in this case, for appointing a subagent. PW7 stated that letter dtd. 29.8.2002 Ex.PW3/B was never brought to his knowledge. He deposed that had he learnt about the the fact that M/s Bhutan Mystical was based in India, he would have recorded such fact in the file and sought Chairman's view on the same. The witness also stated that the agreement with Marktech India and UTH Ex.PW3/A was also never in his knowledge nor it was with the permission of TCIL. He also stated that A1 also never sought any permission from TCIL for signing as a witness on such MOU. Sh. KD Bhatia, was shown the MOU executed on 15th May between proprietor M/s Bhutan Mystical Tours and Adventures and M/s Bhutan Mystical Ex.PW7/C) (in this MOU simply it has been mentioned that MOU is executed on 15th May. It does not even bear that in which year, it was executed and the same has also not been mentioned anywhere in the MOU). In the cross examination on behalf of A1, the witness proved the guidelines of RBI as Mark PW7/DL. The witness stated that CMD authorizes country manager to propose names of agents for CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 30 of 6 finalizing the same by CMD/Board for foreign project. The witness stated that if the TCIL official signs any document in his personal capacity then no permission is required. In regard to the guidelines for proposing the name of agent in foreign project by the country incharge, the witness stated that he does not remember whether the guidelines were there at the relevant time or not. In the cross examination on behalf of A2, the witness stated that it is only a practice that witness should sign the agreement and there is also requirement of affixation of stamp of the agent company while executing agency agreement. However, absence of stamp would not render the agreement invalid. The witness was shown the agreements Ex.PW7/DA, Ex.PW7/DB, Ex.PW7/DC, Ex.PW7/DD and Ex.PW7/DE to show that the seal of the company and name of the witnesses were missing. The witness was also cross examined regarding payments of the agency commission. The witness was also confronted with the communications Ex.PW7/DG, Ex.PW7/DH, Ex.PW7/DI, Ex.PW7/DJ and Ex.PW7/DK regarding the payment of agency commission. The witness admitted that the nationality of the agency was no bar for appointment as an agent and an Indian can also be appointed an agent in the overseas project. He also admitted that the project was executed well in time and TCIL did not suffer any financial loss on account of the payments made to M/s Bhutan Mystical towards agency commission.
CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 31 of 6 3.8 PW8 Sh. Sanjeev Kumar was posted in Foreign Project Finance as an accounts officer in TCIL at the relevant time. He deposed regarding the procedure for appointment of agent in foreign project. The witness stated that the procedure for appointment of agents in foreign projects is done normally by GM and above and such agent should be a local person who had local knowledge of laws and who can do liaison work with concerned Embassy. The witness stated that though there are no written guidelines, but the RBI guidelines for appointment of agents are followed. The witness stated that since he was only at the level of accountant therefore, he cannot describe RBI guidelines for appointment of agents. In regard to the agency commission, the witness stated that the rate of commission to be paid to the agents was normally 1.5 % to 7.5 % and it was the discretion of the management to decide the percentage. In regard to the payment of agency commission, the witness stated that first payment towards agency commission was made on 21.03.2003 on the recommendation of A1. The second payment was made on 18.08.2003 and the third payment was made on 31.10.2003. The witness stated that commission was calculated as per agency agreement dt. 30.8.2002 on pro rata basis based on recommendation of A1. The relevant notesheets were proved as Ex.PW8/A, Ex.PW5/C and Ex.PW5/B. The witness further stated that the demand draft after being prepared used to be received by him and he used to hand over the drafts to A1. However, the witness had CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 32 of 6 no knowledge that to whom A1 further used to hand over such drafts. In the cross examination on behalf of A2, the witness admitted that it was a matter of practice that in foreign contracts, agents were appointed invariably in all the projects and there is no bar in appointment of any Indian as agent in foreign contracts. However, he voluntarily stated that agents who were resident of that foreign country were preferred. In regard to the payment of commission, PW8 stated that if government releases the payment in US $, the payment is made in dollars to the party/agent and if it is in Indian rupee, then the payment is released to the agent in Indian rupee. The witness was cross examined regarding the delay in the release of payment. The witness stated that a sum to the tune of Rs. US $ 1,08,517.66 were released as agency commission.
3.9 PW9 Sh. SK Verma was Chief Vigilance Officer and Executive Director of TCIL in 2004. He conducted a preliminary enquiry based on a complaint received regarding irregularities in the appointment of TCIL agent in Bhutan for a project of Bhutan Telecom. He stated that based on the enquiry with the approval of disciplinary authority i. e. CMD and the first stage advise of Central Vigilance Commission, major penalty charge sheet was issued to A1. CVC also appointed an enquiry officer to conduct the enquiry against A1 on the charges listed in the charge sheet and all the charges were held to be proved and based on the CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 33 of 6 second stage advise of Central Vigilance Commission, penalty of removal from service was imposed upon A1. The witness proved letter dated 16.08.2004 addressed to First Secretary, Embassy of India in Bhutan as Ex.PW9/B inquiring whether a meeting was held on 30.8.02 between A1 and Dy. Chief Mission of Indian Embassy in Bhutan and whether statement made by A1 that the Embassy does not follow the practice of recommending private companies in Bhutan, is correct or not. A reminder to this letter, Ex.PW9/C was sent, in reply to which, First Secretary vide communication dated 05.11.2004, Ex.PW9/D informed that A1 had met Dy. Chief Mission and Dy. Chief Mission himself after checking locally had confirmed that Bhutan Mystical was a company registered with Association of Bhutan Tour Operators. It was also confirmed that the appointment of any agent in a commercial matter has to be decided by the TCIL themselves. The witness also proved letter dated 20.07.2004, Ex.PW9/E from Sh. Ravish Kumar, First Secretary to the effect that letter from A1 had not been received by the Embassy and therefore, no reply was sent. Alongwith this letter a company profile of M/s. Bhutan Mystical mentioned in the registration form of Association of Bhutan Tours Operators was enclosed. In the cross examination on behalf of A1, the witness stated that though the reply dated 05.11.2004, Ex.PW9/D was not convincing but he did not enter into further communication with the Embassy. It also came in the cross examination that during preliminary CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 34 of 6 enquiry A1 did not appear and send request claiming to be on medical leave.
3.10 PW10 Sh. SL Mukhi the then Principal Scientific Officer, deposed on oath that he had worked as a document expert in different capacities from January 1972 to 2005. The witness proved his report dated 09.09.05 as Ex.PW10/X. The expert confirmed the signature of A2 on MoU dated 25.01.2003, Ex.PW10/B / Ex.PW3/A and original agency agreement dated 30.08.2002 between TCIL and M/s. Bhutan Mystical, Ex.PW2/B. The expert also stated that purported signatures of PW16 Sh. Sithar Tamang at point Q1 on Ex.PW3/C, at point Q2 on Ex.PW3/B and at point Q3 on Ex.PW10/B show inherent signs of imitation such as drawn and hesitating line quality, pen stops, pen lifts, retouching and joining of parts etc. The authorship of such signatures cannot be affixed with any set of writings. The witness also confirmed the signature of A1 as witness on MoU dated 25.01.2003 between Mark Tech India and M/s. Ugen Trading House at point Q7 and on agency agreement between TCIL and M/s. Bhutan Mystical dated 30.08.2002. In the cross examination on behalf of A2, the witness admitted that CBI did not send him the specimen signatures and admitted signatures of PW16 Sh. Sithar Tamang. The expert also confirmed that he did not receive any such document containing the signatures of Sithar Tamang received through Letter Rogatory. CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 35 of 6 3.11 PW11 Sh. SS Mathur was posted at Indian Embassy, Thimpu, Bhutan from the period 2005 to 2008 and during this period, CBI officials inquired from him regarding visit of officials of TCIL and the visiting register maintained at Embassy. The witness deposed that he handed over the certified copies of the Visitor's Register maintained at the main gate and in the office of Dy. Chief Mission. The witness stated that as per the certified copy of the register (D19), Ex.PW11/A, A1 had visited Dy. Chief Mission on 30.08.2002. The witness also identified his signatures on all the sheets. In the cross examination on behalf of A1, the witness admitted that he was not posted in Embassy in the year 2002. He admitted that he had no personal knowledge and had deposed on the basis of entries shown in the certified copies of the register. In the cross examination, the witness stated that first two pages of D19, Ex.PW11/A pertains to the register in the office of DCM and remaining pages are part of the register maintained at the main gate where vehicle numbers are noted. A specific suggestion was put to the witness that in August 2002 PW13 had also visited alongwith A1 but the receptionist mentioned only name of A1. To this the witness replied that as per register, there is only one name but there is possibility of anyone else also accompanying such person.
CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 36 of 6 3.12 PW12 Sh. Vijay Tuteja was posted as secretary to A1 from the period 1998 to August 2002. In respect of procedure regarding the dak meant for A1, the witness stated that whatever dak used to be meant for A1 in his official capacity i. e. by his designation, it used to be opened and then used to be placed before him but the dak which used to be in his name only, used to be placed before him without opening. In respect of letter dated 21.07.2002, Ex.PW3/C, the witness stated that he had not seen that letter. The witness voluntarily stated that since it was by name only and therefore, he would have kept the same as it is in the chamber of A1. The witness stated that there was no system of entry or maintaining dak register in the office of GM/GGM. However, there might be some sort of register in central dispatch. The witness deposed that there is no mention of the letter Ex.PW3/A in the letter receipt register, Ex.PW12/A which is from the period 01.07.2002 to 27.08.2002. In the cross examination on behalf of A1, the witness stated that he could not tell whether letter Ex.PW3/C was received by Dak, by courier or by hand. 3.13 PW13 Sh. Narendra Narayan Verma retired as Group General Manager in October, 2008. During the period 1999 to 2004, he was posted as GM (S&WT), TCIL. Sh. NN Verma deposed that to the best of his knowledge, there were no written guidelines in TCIL for appointing agents for foreign projects and the main criteria for such appointment was CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 37 of 6 that agent should be familiar with the local environment and should be in a position to provide business to TCIL. The witness deposed that agency commission varies between 2 to 5 per cent of the total project value. The witness stated that A1 was his boss in TCIL and accompanied him to Bhutan in connection with Bhutan GSM turnkey tender. The witness stated that at the Airport, he met A2 and A2 also accompanied them to Bhutan and in Bhutan they met MD, Bhutan Telecom and went to Indian Embassy. The witness stated that he also met Sh. Tashi, Project Manager for Bhutan Telecom and Sh. Ugen Norbu. Sh. Ugen Norbu was introduced to them by one Mr. Vikas Kumar of EIL. EIL told them about the project of Bhutan Telecom and that it did not want to bid directly in that project and sought help of TCIL. Sh. Vikas of EIL also informed that Sh. Ugen was an influential person who could help TCIL in securing such project. The witness stated that in Bhutan they all i.e. witness, A1 and A2 stayed in the same . The witness also proved his tour programme, Ex.PW13/A. The witness was shown the file pertaining to the present case i.e. D5, Ex.PW13/B. The witness also proved the contract agreement between TCIL and Bhutan Telecom as Ex.PW13/C. PW13 stated that he saw MOU between Ugen Trading House and Mark Tech India, Ex. PW3/A for the first time when he visited CBI office. The witness stated that he did not have any personal knowledge in respect of MoU. In respect of letter dated 04.10.2002, Ex.PW13/D written by A2 to Sh. Ugen Norbu, the witness CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 38 of 6 stated that he had no knowledge of this letter. The witness was also not aware about the letter dated 04.10.2002 of A1 written to Sh. Ugen Norbu, Ex.PW13/E. Regarding role of witness in Bhutan Telecom project, the witness stated that he was the Project Director of said project. His visit to Bhutan was for supply, installation and commissioning of GSM system. He had also prepared the bid and total offer for the project and had gone to Bhutan for survey. In regard to the appointment of agent, initially the witness stated that he was not involved with the process of appointment of agent. In the cross examination on behalf of A1, the witness stated that on most of the occasions when A1 met Sh. Ugen Norbu he used to be present and he i.e. A1 never talked anything with Ugen Norbu relating to appointment of agent. The witness stated that this proved to be one of the very good project for TCIL as there was net profit of more than 10 per cent of contract value. The witness also voluntarily stated that this was also a very strategic project for TCIL as well as Government of India. He also stated that CMD is the final authority for appointment of agent. In the cross examination on behalf of A2 the witness stated that agent is appointed invariably in foreign projects and there is no bar of any Indian citizen to be appointed as an agent for a foreign project. . The witness agreed that the primary duty of such agent is to secure the contract by using his own influence. The witness could not say that whether it is the CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 39 of 6 sole prerogative of CMD as to who should be appointed as an agent. He stated that generally, the appointment of the agent is initiated by the country incharge and processed by other officers and then CMD may approve or disapprove it. PW13 admitted that he alongwith A1 and A2 had gone to Indian Embassy in Bhutan during his visit to Bhutan and met Sh. Vinod Kumar, Deputy Chief and Sh. Ravish Kumar, First Secretary and discussed the details of this project with them and also requested them to use their own influence in securing the contract. The witness voluntarily stated that TCIL was very keen in securing said contract. In the cross examination, the witness admitted that he had given copy of tender for planning, engineering, supply and installation and commission of GSM 900 based digital mobile network in Bhutan, Ex.PW13/DA to CBI. He also admitted that he had given the brief of TCIL's correspondence with MEA and proved the same as Ex. PW13/DB. The witness also proved the letter dated 27.11.2002, Ex.PW13/DC from AR Ghanshyam, MEA, New Delhi to A1 AK Sharma vide which it was informed that pursuant to the talks between Government of India and Royal Government of Bhutan the authorities in Bhutan are being asking to consider the bid of TCIL favourably. In the said letter, it was also urged that TCIL to closely monitor the development and to ensure that decision is taken in TCIL's favour. The Govt. also asked for the exact amount to be bridged for further action in the matter.
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The witness also stated that ultimately MEA obtained the Cabinet approval for funding and conveyed the same to TCIL vide letter dated 30.09.2003 and to such effect, there was contract between TCIL and MEA which was signed on 14.11.2003. The witness stated that negotiations /technical discussions which took place initially in the month of January 2003 in Thimphu, Bhutan were attended by him on behalf of Government of India/TCIL as well as some other officials and A2 Sanjay Bhalla. It also came in the cross examination of this witness that the difference between the bids of TCIL and Mitsui was of USD 3,67,859.33 and GOI agreed to fund the project to the extent USD 24,55,144.63. He also stated that the rate of agency commission at that time was 1.5 per cent to 7.5 per cent. 3.14 PW14 Sh. V. Parthasarthy had joined TCIL as Director in January 2002 and was Director (Projects) in TCIL. As a Director (Projects), he was incharge of execution and monitoring of all the projects of TCIL. The witness stated that in TCIL, the officers are nominated as Country Incharge for different countries for overseas tenders and such country incharge is required to visit the country concerned and makes its own assessments in consultation with the Indian embassy and proposes who can be suitable agent for such contract who could help TCIL in winning the contract as well as in its execution. The witness stated that this proposal is required to be put before Management and after due approval of CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 41 of 6 CMD, agents are appointed. The witness also deposed that RBI guidelines are also required to be followed. Though, the witness did not remember the minimum and maximum agency commission that could be approved in such cases. He stated that it was generally dependent upon the country and the tender conditions. The witness deposed that the agent in foreign projects arranges for all the logistics, arranging meeting with the clients, visa on residency formalities, helping in making presentation to the foreign administration. He also sated that the Country Incharge normally consults the embassy in choosing the agent to verify its credentials.
The witness proved the noting dated 16.08.2002, Ex.PW7/A of A1 regarding appointment of Bhutan Mystical as TCIL agent for GSM tender in Bhutan. The witness also proved the noting dated 04.09.2002, Ex.PW2/E of A1 regarding the signing of agency commission with Bhutan Mystical on 04.09.2002. The witness further deposed that he came to know through Finance Section of TCIL that the agent for Bhutan i.e. M/s Bhutan Mystical is actually an Indian entity and this fact came to light when Mr. Ugen came to TCIL from Bhutan regarding his commission. The witness further stated that A2 met him when he was posted in Chennai as MD, TTL on reference from then CMD, TCIL to help TTL in cable supply project of Nepal Telecom. The witness further deposed that when he came as Director (Projects) in TCIL in January 2002 onwards, he had seen A2 Sanjay Bhalla in TCIL office and A2 used to meet the other officials of CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 42 of 6 TCIL Management. In a specific answer to the question regarding irregularities committed in appointment of agent, the witness stated that no irregularities were initially noted when the agent was appointed but later on it came to light that M/s Bhutan Mystical is actually an Indian entity. In addition, it came to light that a sub contract agreement has also been entered into for claiming part of the commission between Indian entity and Mr. Ugen Norbu of Bhutan. PW14 stated that the subagency agreement , Ex.PW3/A was not placed on official file and it was given to TCIL by Sh. Ugen Norbu. The witness also proved the noting dated 07.03.2003 of A1 regarding release of payment to M/s. Bhutan Mystical as Ex.PW5/A (Ex.PW14/B (D4)). In the cross examination on behalf of A2, the witness stated that Sh. Ugen Norbu had never met him personally. The witness admitted that contract of TCIL was awarded only after intervention of MEA. The witness deposed that it was first overseas GSM project executed by TCIL. The witness also admitted that the contract was executed well in time and TCIL did not suffer any financial loss in this project. The attention of the witness was drawn to the noting dated 24.12.2003 of Mr. Ghanshyam Sharma, Ex.PW14/DB regarding release of agency commission as well another detailed noting dated 14.01.2004, Ex.PW5/DC vide which said Mr. Ghanshyam Sharma sought advise regarding payment of agency commission in Indian Rupee. The attention of the witness was also drawn to the noting made by A1, Ex.PW5/DD whereby A1 had noted CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 43 of 6 that in respect of amount due towards Bhutan Mystical, the payment be released on receipt of payment by TCIL. The witness admitted that payment to M/s. Bhutan Mystical was made after seeking the approval from RBI.
3.15 PW15 Sh. VM Mittal, Investigation Officer (IO) deposed on oath that on 08.11.2004 he was entrusted investigation of case no. RC ACI 2004 A0005, after transfer from Ms. Tanuja Srivastava the then SP/CBI ACUI. The FIR was proved as Ex.PW15/A. The witness stated that he conducted searches on 09.11.2004 at the residential premises of A1 and proved the search list Ex.PW15/B. On the same day, search was conducted at the official premises of A2 and search list was proved as Ex.PW15/C. IO stated that during investigation he collected documents from vigilance department from time to time vide letters Ex.PW9/A, Mark PW15/A, Mark PW15/B and Mark PW15/C. The documents from Indian Embassy at Bhutan were collected vide letter Mark PW15/F. The documents from Standard Chartered Bank were collected vide letters Mark PW15/D and Mark PW15/E. The documents in respect of response of Letter Rogatory sent to Bhutan were also seized vide memo Mark PW15/G. IO collected specimen signatures and specimen handwriting of A2 Ex.PW10/A1 to A25 and Ex.PW15/D1 to D15 and Ex.PW15/E1 to E4. The specimen signatures and specimen handwriting of A1, Ex.PW10/C1 to C14 were also obtained CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 44 of 6 and sent for expert opinion. IO stated that during the course of investigation, letter rogatory for investigation in Bhutan was issued by the court and was sent to competent authority, Bhutan through proper channel for execution of letter rotagory. IO stated that he received the file Ex.PW15/F (D24) through proper channel which contained details of investigation conducted in Bhutan pursuant to letter rogatory alongwith statements and documents. IO proved the various files on record as Ex.PW15/H, Ex.PW15/J, Ex.PW15/K and Ex.PW15/L. The file seized during the search proceedings were proved as Ex.PW15/M (D7) and Ex.PW15/N (D27). IO further deposed that Mark Tech India was the proprietorship firm of A2 Sanjay Bhalla at B130, Lajpat Nagar, New Delhi. However, in the Agency agreement dtd. 30/8/02, Ex.PW2/B, signed by accused persons, address of M/s Bhutan Mystical was mentioned as PO Box 887, Thimbu, Bhutan. The investigation revealed that the actual address of M/s Bhutan Mystical was B130, Lajpat Nagar, New Delhi. It was also found that Bhutan Mystical was formed specially for entering into the aforesaid agreement with TCIL and the said concern had no other activity. IO also stated that during his investigation, nothing came on record to show that said M/s Bhutan Mystical, B130, Lajpat Nagar, New Delhi had performed any work pursuant to the said agency agreement dtd. 30/8/02 except that, that A2 had visited Bhutan in connection with this project and further pursued the matter with MEA, New Delhi office. CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 45 of 6
In the file Ex.PW15/J (D4), M/s Bhutan Mystical represented their registered office B130, Lajpat NagarI, New Delhi and Project Office, PO Box No. 231, Thimpu, Bhutan. The investigation further revealed that there was no said Bhutan Mystical either at PO Box No.231, Thimpu, Bhutan or at PO Box No.887, Thimpu, Bhutan. IO stated that PO Box No.887 was the address of the genuine firm M/s. Bhutan Mystical Tours & Adventures of PW16 Sh. Sithar Tamang. IO also collected documents from Ericsson concerning to the present project. It came in the cross examination of IO that the total bid of TCIL including both the components i.e. Equipments & Services and AMC was USD 83,77,145.32 and that of M/s. Mitsui was USD 73,07,639/(Equipment and Services USD 65,97,40+AMC USD 7,09,699). Since the bid of TCIL was higher than that of Mitsui, TCIL requested Ministry of External Affairs to finance a certain components i.e. AMC components of the project by way of grant. IO stated that Govt. of India funded the project with interest free loan keeping in view the strategic location of Bhutan. He also stated that the difference between the two bids i.e. L1 and L2 was USD 10,69,506 but Govt. of India sanctioned the fund to Govt. of Bhutan in the sum of USD 24,55,114.63. IO was cross examined at length regarding the factum of intervention of Ministry of External Affairs and the quantum of funding to bridge the gap between L1 and L2. IO admitted that in investigation it was revealed that there was no bar for appointment of Indian firm as an agent. CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 46 of 6 IO admitted that Sh. SK Tandon the then CMD had approved the appointment of Bhutan Mystical, Thimpu, Bhutan as an agent. IO further stated that in his notings, A1 AK Sharma did not bring anywhere to the notice of Senior officers that M/s. Bhutan Mystical, Thimpu was owned by A2 and rather it was mentioned that it was a Bhutanese company with good local connections. However, during execution of the said project, at the time of making payments, it came to the notice that M/s. Bhutan Mysticals was an Indian Company owned by A2. IO admitted that he had not cited Sh. SK Tandon the then CMD as a witness though he had examined him and recorded his statement. IO further admitted that the payment of commission to the agent was payable by the TCIL only on the award of the contract to TCIL otherwise not. IO was not able to say that whether an amount of US $ 82,479.34 is still outstanding to be paid by TCIL to M/s. Bhutan Mystical or to A2. Though IO admitted that there were some negotiations technical/financial between the officers of TCIL and Bhutan Mysticals, however he was not able to tell the exact dates and the fact that whether A2 Sanjay Bhalla also participated on behalf of TCIL in the negotiations. IO was confronted with the information regarding telephone number and place where the same was installed on the document Ex.PW15/D5 in file Ex.PW15/F (D24). IO stated that in normal course, the fax message should contain the details of the phone number, timing etc., from which and to whom, it has been faxed. However, there are CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 47 of 6 chances that the same may be edited.
In respect to the question whether IO had tried to find out whether M/s. Bhutan Mystical exist there at Post Box No.887, Thimpu Bhutan, IO stated that he had not conducted any investigation independently in the case at Bhutan. IO stated that he had merely visited the Bhutan to assist the investigating agency of Royal Kingdom of Bhutan in execution of the Letter Rogatory. IO was confronted with the letters dated 26.02.2003, Ex.PW15/DC in file D4 written by M/s. Bhutan Mystical to A1 regarding agency commission. (This letter is on the letter head of BMTA). In respect to the letter dated 21.01.2004 by A2 to Director, Finance, TCIL informing the fact that since the GSM project is complete, the office at Bhutan may be closed and therefore, all correspondences may be held at their Delhi office i.e. B130, Lajpat Nagar, New Delhi. IO stated that information provided in this letter is factually incorrect as no office of M/s Bhutan Mystical ever existed at the given address at Thimpu, Bhutan. Rather, the contract was awarded to Indian firm i.e. M/s. Bhutan Mystical situated at Lajpat Nagar, New Delhi. IO also stated that pursuant to the letters Ex.PW15/DE and Ex.PW15/DF, from Bhutan Mysticals to A1, the agency commission was released after approval of competent authority. IO admitted that he has not sent the signatures of Sh. Tsehwang Dorji to CFSL for comparison with his purported signatures on Ex.PW7/C. IO specifically stated that it did not CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 48 of 6 come in his investigation through Letter Rogatory that Sithar Tamang used to change his signatures usually. The suggestion was denied that Sithar Tamang had been changing his signatures and in Letter Rogatory also he had given two different signatures at two different points. In the cross examination on behalf of A1, IO admitted that there was some dispute between TCIL and Bhutan Mystical regarding payment of agency commission.
3.16 PW16 Sh. Sithar Tamang deposed on oath that in 2002, he was working for M/s. Bhutan Mystical Tours and Adventure (BMTA), PO Box No.887, Jojo's Building, Thimpu, Bhutan, as Manger. Sh. Tshwang Dorji was the proprietor of this firm. The firm was in the business of Tours and was registered with the Deptt. Of Tourism under license issued by Ministry of Trade and Industry, Bhutan. He stated that his firm had never entered into any tour and adventure business nor the firm had done any other business. The witness specifically stated that BMTA had never entered into any deal or business of Telecommunication in Bhutan, India or any other places. He further deposed that as far as he remember in 2001 or 2002, two Indian persons came to him and one of them was A1 Ashok Sharma who told that in connection with some telecommunication system in Bhutan their persons from Delhi will visit Thimpu and other places if they win the tenders of telecommunication in Bhutan. The inquiry was also CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 49 of 6 made regarding transportation for carrying their persons from Paro to Thimpu and other places as well as rates of Mini Bus, Cars and Coaster Buses. They insisted that rates be quoted on firm's letterhead. The witness quoted the rates on firm's letterhead and affixed the seal and handed over the same to accused persons. Witness stated that he did not recall the faces of those persons who had come to him on account of the fact that it is an incident of around 1012 years back. However, the witness stated that when he came to the court, A2 Sanjay Bhalla met him outside the court and introduced him as Sanjay Bhalla. He was able to identify accused Sanjay Bhalla only because he introduced himself as Sanjay Bhalla. The witness stated that A2 Sanjay Bhalla had come to him alongwith Ashok Sharma. The witness further deposed that accused persons invited him for Tea after meeting him at the first time. Sh. Sithar Tamang went to their hotel room and had a cup of tea. The witness also deposed that M/s. BMTA had only one office and it had no other branch in Bhutan or outside nor it had any other partner or Franchise anywhere in Bhutan or outside. The witness specifically stated that he himself or his firm M/s. BMTA had never tieup with TCIL, Delhi (India). PW16 further specifically deposed that letter No.BM/TCIL/2002/001 dated 21.07.2002, Ex.PW3/C and letter No.BM/TCIL/2002/002 dated 29.08.2002, Ex.PW3/B had never been written by him to A1, Group General Manager, TCIL, New Delhi in connection with Sales Consultancy for TCIL. He further stated that CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 50 of 6 purported signatures in the name of Sh. Sithar Tamang at point Q1 are not his signatures. However, the name of his firm has been used on both these letterheads. The witness stated that he cannot say who had put these signatures however, the same are forged.
The witness stated that MoU dated 15.05.2002, Ex.PW7/C was never executed between M/s. BMTA and the witness also stated that he had not signed these MoU. PW16 stated that only he used to sign all the documents for M/s. BMTA. He was not able to say that who had signed as proprietor of M/s. Bhutan Mystical, B130, Lajpat Nagar - IV, New Delhi. The witness specifically stated that they have no firm with the name of M/s. Bhutan Mystical at the said address. In respect of MoU dated 23.01.2003, Ex.PW3/A, the witness stated that this was never executed by his firm M/s. Bhutan Mystical Tour and Adventure and he had no knowledge about the same. The witness knew Sh. Ugen Norbu, proprietor of M/s. Ugen Trading House, Thimpu. In respect of letter dated 18.03.2003 from TCIL to M/s. BMTA, Ex.PW5/B, the witness stated that this letter was never received by them whereas, it carries the correct postal address of M/s. BMTA. The witness stated that their firm never used to be known as M/s. Bhutan Mystical. (This letter sent to postal address of M/s. BMTA fortifies the case of the prosecution that an impression was given in TCIL that the firm of Bhutan has been appointed as an agent).
In respect of letter dated 01.07.2004 on the letterhead of M/s. CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 51 of 6 BMTA to Mr. Chandershekhar AK, Director Finance, TCIL, New Delhi by Sh. Tshwang Dorji and Sh. Sithar Tamang, the witness stated that this letter was never written by him though it bears his signatures at point A. The witness identified the signatures of Sh. Tshwang Dorji. However, he was not able to say that whether the signatures on this letter were of Tshwang Dorji or not. The witness stated that the signatures at point A were not put by him and the accused persons might have scaned his signatures from the signatures on the documents which he had given to the accused persons during his first meeting. The witness stated that no such letter was written by him or his firm to Mr. Chandershekhar AK, Director Finance, TCIL, New Delhi. He further stated that somewhere in the year 2003 or 2004, he was called by Mr. Ugen Narbu in his office and when he reached there, Mr. Dorji was already sitting there. Mr. Narbu asked him whether he had any business connection with accused persons and he had allowed them to use the letterheads of M/s. Bhutan Mystical Tours and Adventures, to which the witness denied. The witness vaguely remembered that he and Mr. Dorji signed a communication denying to have sent any earlier communication to anybody on behalf of M/s. BMTA. The witness did not recall to have receive any further letter dated 14.07.2004.
In the cross examination on behalf of A2, the witness stated that Sh. Tshwang Dorji is his brotherinlaw and he joined the firm in year 2000 and worked there till December, 2002. The witness stated that CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 52 of 6 besides Sh. Tshwang Dorji, two other persons also used to work in the said office. The witness stated that there was a fax machine installed in his office which was under his lock and key. However, the witness did not recall the fax number. The witness did not know if A2 had came into contact with Mr. Tshwang Dorji. A specific question was put to the witness that he is in the habit of frequently changing the pattern of his signature to which the witness replied "May be". However, he voluntarily stated that his signature remained same for the last 1012 years. It came in the cross examination that during investigation the specimen signatures of this witness was taken by the IO. The witness was confronted on certain points with his earlier testimony recorded during investigation. The witness identified the photograph of former King of Bhutan, Ex.PW16/DA and stated that A2 is appearing in the said photograph by the side of King of Bhutan. In respect of MoU, Ex.PW7/C which contains the name of the firm at point A and fax number at point B, the witness voluntarily stated that this document seems to be forged as the documents can be typed and the name of the firm and fax number on the top so as to give impression that this has been received by fax. He also stated that in Ex.PW7/C the way numeral "0" is seen also shows that its a forged document because in fax always the zero would appear in a different manner. The witness denied the suggestion that Ex.PW7/C is a genuine document sent by fax from BMTA, Bhutan to Bhutan Mystical, New Delhi. The witness denied the CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 53 of 6 suggestion that he voluntarily made improvement in his statement before the court to implicate the accused persons. The witness also denied the suggestion that M/s. Bhutan Mystical, B130, Lajpat Nagar, New Delhi was a sister concern of M/s. BMTA, Bhutan. He also denied the suggestion that signatures at Q1 and Q2 appearing on Ex.PW3/B and Ex.PW7/C are his genuine signatures.
STATEMENT OF ACCUSED PERSONS 4.0 In his statement u/S.313 Cr.P.C., A1 Ashok Kumar Sharma stated that the decision to have an agent or not to appoint as an agent is vested with CMD, TCIL. A1 stated that he alongwith his colleague NN Verma (PW13) were asked to visit Bhutan with A2 to facilitate tender preparation and also to finalize the agent. A1 admitted that though there are no written guidelines, however the agents in foreign projects should be a local person who had knowledge of local law and could do liaison work with the concerned Embassy. Accused admitted that he informed PW3 Sh. Ugen Norbu by mail that he would be visiting Bhutan and in Bhutan and he introduced A2 to PW3. Accused denied that he informed PW3 that his company M/s. Ugen Trading House cannot be appointed directly as agent as TCIL is a Govt. concern. A1 stated that he met PW3 Sh. Ugen Norbu in presence of PW13 and never met / discussed in private. Accused stated that he signed the MoU between M/s. Mark Tech India and M/s. Ugen Trading CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 54 of 6 House in his personal capacity. The accused admitted that he had not brought this MoU to the knowledge of TCIL as TCIL was stranger to said firms involved in MoU. A1 stated that it was represented to TCIL that M/s. Bhutan Mystical, sister concern of M/s. BMTA was active in many fields including Telecom and were in a position to win the business for TCIL. Accused denied to have met PW16 at Bhutan and also denied any meeting with him regarding the transportation. A1 stated that he did not know if letter No.BM/TCIL/2002/001 dated 21.07.2002, Ex.PW3/C and letter No.BM/TCIL/2002/002 dated 29.08.2002, Ex.PW3/B were never written by PW16 to him. The accused showed his ignorance to many of the incriminating evidence. Accused stated that he did not know that Mark Tech India was a proprietorship firm of A1. Accused further stated that all the payments were released by TCIL in accordance with the approved terms and conditions of TCIL and after approval of CMD, TCIL. Accused stated that he was falsely implicated and the departmental inquiry conducted against him is also under challenge before the Hon'ble High Court in WP(C) No.15947/2006 as regular matter. A1 stated that PW3 Sh. Ugen Norbu and PW16 Sh. Sithar Tamang are in league and had a grudge against A2 Sanjay Bhalla relating to money. Accused stated that in fact a monetary dispute is being settled by Ugen Norbu in collaboration with then CMD, TCIL, through this case. A1 stated that he is innocent and has been implicated falsely.
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A1 stated that he joined TCIL in June 1996 as a General Manager on deputation from Deptt. of Telecom. During his tenure of 78 years, he had handled several prestigious international projects successfully like, RASCOM, Nationwide Billing for Switzerland, Botswana, VSAT Consultancy Etc. The accused stated that all through his career he has been an outstanding officer with excellent CR's. Regarding Bhutan GSM Project, A1 stated that TCIL Management came to know in late 2001 that a tender is going to be announced shortly. Immediately, TCIL deputed a team to Bhutan to register its interest to take up this project. TCIL senior management came to know that Bhutan Telecom had shortlisted three companies to bid for the tender and TCIL was not one of them. During June 2002, A1 was introduced by then CMD, TCIL to A2 Sanjay Bhalla, and was informed that A2 Sanjay Bhalla has excellent contacts in Bhutan and will help TCIL in getting listed as a bidder for GSM tender and then winning it. After sometime, Bhutan Telecom vide its letter dated 12.07.2002, wrote to TCIL accepting TCIL as a bidder for the tender provided Ericson make GSM equipment was proposed in its solution. On receipt of this communication, CMD, TCIL asked A1 and PW13 NN Verma to visit Bhutan with A2 Sanjay Bhalla for making tender preparation and also for finalizing the agent. Accused stated that during the visit, A2 Sanjay Bhalla introduced Bhutan Mystical, a sister concern of BMTA, whose proprietor was Tshwang Dorji (Business Associate of CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 56 of 6 Sanjay Bhalla in Bhutan) for appointment of agent for TCIL for Bhutan. Subsequently, A1 received a formal request from Bhutan Mystical for appointment of agent for Bhutan GSM Project. A1 stated that CMD, TCIL approved the appointment of agent. He further stated that the effectiveness of the agent can be assessed from one aspect alone that even though TCIL bid was not lowest, still Bhutan Telecom invited TCIL for financial and technical negotiation in January 2003. However, Mr. Ugen Norbu who was associated with Ericson (one time competitor to TCIL) started lobbying against him with new CMD, TCIL who joined in October 2002. A1 further stated that when the project got successfully completed in November / December 2003, even the new CMD started supporting PW3 Sh. Ugen Norbu and in July 2004 told A1 to get certain letters written by A2 Sanjay Bhalla to CMD, TCIL be withdrawn failing which false case will be framed against him. Accused stated that he was transferred on 02.07.2004 from Headquarters and the departmental disciplinary proceedings and this CBI inquiry was instituted on motivated grounds. A1 stated that he had never done anything wrong and have acted in the best interest of TCIL. TCIL had made substantial profits from this project and got international goodwill establishing itself for the first time as a GSM Network installer. 4.1 A2 Sanjay Bhalla in his statement u/S.313 Cr.P.C. stated that on account of his efforts Ericcson intimated Bhutan Telecom that they CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 57 of 6 were not interested and the same may get done by TCIL. A2 stated that he was introduced to Ugen Norbu through Sh. T. Dorji proprietor of Bhutan Mystical Tour and Adventures. A2 also stated that A1 signed an MoU dated 23.01.2003 in his personal capacity. A2 reiterated that M/s. BMTA entered into an MoU with M/s. Bhutan Mystical. Accused stated that Sh. T. Dorji proprietor of BMTA was known to him and he required Mr. Dorji's help and Mr. Dorji deputed Sh. Sithar Tamang for providing necessary help. A2 stated that Bhutan Mystical entered into an MoU with M/s. BMTA and therefore, Bhutan Mystical was having postal address at # 887, Thimpu, Bhutan and was also having address at B130, Lajpat Nagar. Accused stated that Mr. T. Dorji, Proprietor of M/s. BMTA signed the MOU dated 15.05.2002, Ex.PW7/C. The contract could be awarded to TCIL due to efforts made by him by deploying his own resources in Bhutan and India. The MoU dated 23.01.2003, Ex.PW2/C was executed between Mark Tech India and Ugen Trading House for Tax planning purposes. The witnesses being official of TCIL and CBI and were tutored to deposed in consonance with the case of the prosecution. He also stated that the investigation is not conducted fairly and he has been implicated falsely at the instance of senior officials of TCIL including CMD. A fair investigation has not been conducted to ascertain truth. Accused stated that during the period from 199195, he was working with TCIL joint Venture namely TCIL BELL SOUTH LTD and won best employee, " Ace Award". CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 58 of 6 Later, he had worked with TCIL for their several projects including Nepal Telecom Project and others. During the period of his assistance with Nepal Telecom Project, Top management of TCIL including the then CMD, requested him to secure Bhutan Telecom Project also, since, TCIL were technically not shortlisted for GSM Project of Bhutan Telecom by Bhutan Telecom Corporation. However, he used his resources with GOI, Private sector and Bhutan as he already knew Bhutan king and other senior officials in Bhutan Government. Accused stated that after that he visited Bhutan on several occasions with officials of TCIL and organized their meeting with senior officials of BTC and Bhutan government and only thereafter, TCIL appointed his company as an agent for GSM project of Bhutan. He stated that after submission of Tender, bid was opened and TCIL was L2. Accused used his resources in GOI and Bhutan, and perused the matter with MEA and DOT, for speeding up for all necessary aid to let TCIL win the contract and work on the Project. After successful completion and execution of Project and on receipts of payment by TCIL from Bhutan Telecom, accused started raising demands through various letters addressed to CMD, TCIL for release of his Agency commission as per the terms and conditions of Agency Agreement with TCIL. However, his payments were deliberately withheld by CMD, TCIL without any explanation and instead this false case was registered against him with the help of PW3 Ugen Norbu and Sh. T. Dorji. Accused stated that during his CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 59 of 6 visit to Bhutan, on invitation of Bhutan King to Indian Council for International Cooperation, he met Sh. Tshwang Dorji of M/s. BMTA on one of the dinner hosted by Royal Government of Bhutan and exchanged their visiting cards. In the year 2002, while working on this project, he contacted Mr. Tsehwang Dorji and they both agreed to work for mutual interest and for the same, he entered into MoU dtd. 15.05.02 with Mr. T. Dorji of M/s BMTA to provide various services in Bhutan in lieu of certain remunerations. Accused stated that after entering into MoU, he visited Bhutan, and Mr. T. Dorji introduced Mr. Ugen Norbu who informed that his elder brother is on the Board of Bhutan Telecom. Accused stated that during the process of appointment of his firm as an agent and thereafter, all his correspondences with M/s BMTA were being channelized directly by and through Mr. T. Dorji of M/s BMTA. Accused further stated that Mr. Dorji also informed him that Mr. Ugen Norbu can help him in GSM project since his brother is the member of Board of Directors in Bhutan Telecom Corporation. On analyzing his usefulness, he decided to seek his assistance with respect to Bhutan related work @ 1% of Total cost of award, on successful Award of contract out of total 3% and entered into an MoU with his firm. A2 stated that he entrusted PW3 Ugen Norbu to provide all necessary support including logistical and Administrative support and making all necessary arrangements for officials of TCIL visiting Bhutan to ensure smooth and successful of GSM Project of Bhutan CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 60 of 6 Telecom. Initially he agreed for 1% of total contract value but lateron, he continuously insisted upon 2% of the total contract under the influence and support of new CMD, TCIL. Accused stated that whatever, he did during the successful execution of the Project and thereafter, was in the best interest of the project and TCIL. Accused stated that he has not done anything wrong nor did he enter into any criminal conspiracy to either cheat or provide any losses to exchequer. Accused stated that in fact, TCIL made substantial profits and became eligible to bid any GSM project in the world. Accused stated that he has been falsely implicated in this case. 5.0 The defence examined one defence witness. DW1 Sh. Rakesh Kumar who was posted as Sr. DDR(SU), Department of Telecom, New Delhi. The witness proved the letter Ex.DW1/A written by him to Mrs. Meera Shankar, Joint Secretary, MEA, South Block, New Delhi regarding the present project. In the letter it was requested to MEA to provide necessary aids to TCIL to win the contract and to work on the project. The defence witness also proved another letter dated 17.09.2002 written by PW14 Sh. V. Parthasarthy, Director (Projects), TCIL to Mrs. Meera Shankar, Joint Secretary as Ex.DW1/B. In this letter again a request was made to Ministry of External Affairs to bridgeup the gap between L1 and L2 by providing interest free loan by Govt. of India in view of the strategic location of Bhutan.
CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 61 of 6 ARGUMENTS 6.0 Sh. Naveen Giri, Ld. PP for CBI submitted that prosecution has successfully proved its case against the accused persons beyond reasonable doubt. Ld. PP submitted that it has come on the record that A1 Ashok Kumar Sharma represented to TCIL that a Bhutanese company is being appointed as an agent whereas, an Indian Company owned by A2 Sanjay Bhalla was appointed as an agent. It has been submitted that the evidence of prosecution witnesses clearly indicate that A1 was in league with A2 since inception and he was predetermined to appoint A2 as an agent in this contract. It has further been argued that the claim of PW3 Sh. Ugen Norbu was rejected arbitrarily only to cause wrongful gain to A2. If PW3 or his company M/s. Ugen Trading House had been appointed as an agent, it would have saved public exchequer. Ld. PP submitted that prosecution witnesses have made consistent and corroborative statement on oath. The malafide intention or conspiracy between accused persons has also been established by the prosecution witnesses.
6.1 Sh. B.P. Singh, Ld. Counsel for A1 Ashok Kumar Sharma submitted that A1 has primarily been charged that he gave wrong information that M/s. Bhutan Mystical was a locally registered company in Bhutan and recommended its name for appointment as agent. A1 has also CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 62 of 6 been charged for the conspiracy with A2 and for abusing his official position by appointing M/s. Bhutan Mystical as an agent which was a bogus and fictitious firm. A1 also extended undeserving benefit to M/s. Bhutan Mystical. Ld. Counsel for A1 submitted that it has come in the testimony of PW2 AK Duggal that for appointment of agent in TCIL in foreign project, there are no codified rules. It has been submitted that it has also come in the testimony of PW5 Vinod Behari Mathur and PW13 NN Verma that an Indian National may be appointed as an agent in foreign projects and no bar exists regarding appointment of such agent. The attention has been invited to the testimony of PW7 Kulbhushan Batra who deposed that permissible agency commission is upto 12% whereas, in the present instance, the agency commission is fixed @3%. Ld. Counsel submitted that it has also come in the testimony of PW13 NN Verma that CMD is the final authority for the appointment of agent. It has also come in the testimony of PW7 that CMD only authorizes the country manager to propose names of agents but finalization of appointment is made by Board or CMD. Ld. Counsel submitted that CMD who was the final authority is not even a witness in the present case. Ld. Counsel further submitted that A2 was not a stranger to TCIL and had been associated with TCIL in the past also. Sh. BP Singh, Ld. Counsel submitted that the dismissal order of A1 is under challenge before the Hon'ble High Court in WP(C) 15947 of 2006. Ld. Counsel submitted that the allegation of the prosecution that A1 CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 63 of 6 concealed the information with regard to Bhutan Mystical has fallen to the ground as it has come in the testimony of the prosecution witnesses that A1 had held a meeting with Sh. Vinod Kumar, Deputy Chief of Indian Embassy Bhutan and it was duly confirmed by the Indian Embassy, Bhutan that Bhutan Mystical was locally registered in Bhutan. Reliance was placed upon letter Ex.PW9/D. In the said letter addressed to Chief Vigilance Officer Sh. SK Verma (PW9) the Indian Embassy confirmed that M/s. Bhutan Mystical was locally registered. Ld. Counsel submitted that in view of the fact that a thorough inquiry was made from Indian Embassy, there is no reasonable ground to believe that there is any conspiracy between accused persons and any information was concealed from the concerned corners. Ld. Counsel submitted that the discussion with Indian Embassy was duly noted in file Ex.PW7/A. It has further been submitted that PW9, Chief Vigilance Officer did not pose any further query after receiving the Embassy's letter dated 05.11.2004 i.e. Ex.PW9/D. In regard to the wrongful loss, Ld. Counsel submitted that against the permissible limit of 12% only 3% agency commission was given to A2. Ld. Counsel submitted that the role of the agents starts right from securing the tender, assistance during bid submission, tender evaluations, negotiations and timely release of principal's payment till project is closed. In regard to the agreement between Mark Tech India and Ugen Trading House, Ex.PW7/C, it was submitted that this was an CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 64 of 6 agreement between two strange entities. Ld. Counsel further submitted that Ugen Trading House was not considered as an agent because at that time he was representing Ericsson i.e. TCIL's competitor and was assisting them in bid preparations. Reliance was placed on the testimony of PW6 Sameer Sinha from EIL. Ld. Counsel submitted that the decision to not to appoint M/s. Ugen Trading House as an agent was highly prudent, commercial and administrative decision of TCIL management. Ld. Counsel submitted that finance department made payment to Bhutan Mystical as per terms and conditions of agency agreement and departmental norms therefore, A1 had no role in causing any loss to TCIL. Reference was made to the communication dated 04.12.2003 from TCIL to Regional Director, RBI, Ex.PW7/DG. PW14 Mr. V. Parthasarathy has also deposed that payment to M/s. Bhutan Mystical was made after seeking approval from RBI. Ld. Counsel pointed out that even now the full payment of agency commission has not been made to A2 and therefore, there is no question of any loss.
Ld. Counsel submitted that it came in the testimony of PW13 that the project proved to be profitable to TCIL and the issue raised after change of CMD and successful completion of the project with commendable profit. The testimony of PW14 referred to wherein he had stated that the contract was executed well in time and TCIL did not suffer any financial loss. Sh. BP Singh, Ld. Counsel submitted that in fact the role of country head/GGM (TS) is limited to the following heads : CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 65 of 6
i) To explore opportunities in the area earmarked to him.
ii) To workout feasibility of capturing said opportunity by way of winning tender and projects.
iii) Successful implementation of the contract awarded.
Ld. Counsel submitted that PW3 Sh. Ugen Norbu was an interested witness and he had grudge against the accused persons on account of the fact that he had some payments due from A2. It has further been submitted that PW3 wanted himself to be appointed as an agent in the present project. It has been submitted that prosecution did not even examine Mr. T. Dorji owner of M/s. BMTA for the reasons best known to them. It has also been submitted that infact PW3 had started lobbying against A1 after the change of CMD. Ld. Counsel submitted that A1 had always acted in the best result of TCIL. TCIL has made substantial profit from this project and also gained international goodwill establishing itself for the first time as a GSM network installer. Ld. Counsel submitted that there is no evidence on the record regarding conspiracy between the accused persons and the prosecution has miserably failed to prove its case against the accused persons.
6.2 Sh. SK Saxena, Ld. Counsel for A2 Sanjay Bhalla made a detailed oral arguments and also placed on record brief synopsis of written CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 66 of 6 arguments. Sh. Saxena, Ld. Counsel divided his arguments into following heads :
i) Was there any necessity for the appointment of an agent ?
ii) Whether there was any illegality or irregularity in the appointment of the agent in the present case ?
iii) What work was done by the agent and how it is to be judged ?
Whether the contract could have won without agent ?
iv) Any Loss to exchequer/TCIL or peculiar gain to the Agent by appointment of agent ?
v) Payments (two components, prorata basis, no contract no payment) Was there any necessity for the appointment of an agent ?
Sh. SK Saxena, Ld. Counsel submitted that it has come in the testimony of prosecution witnesses that generally in all the contracts agents are appointed for foreign projects. Reference was made to the testimony of PW2 AK Duggal wherein he stated that as per practice agents are appointed for foreign projects and agents can be appointed at any stage i.e. before, during or after the submission of bid. Reference was also made to testimony of PW4 Sanjay Kumar wherein he had admitted that TCIL had been appointing agents for the foreign projects invariably. Ld. Counsel also invited the attention of this court to the testimony of PW13 NN Verma and PW8 Sanjeev Kumar who had also stated that in foreign projects agents are CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 67 of 6 being appointed invariably. Ld. Counsel submitted that PW6 Sameer Sinha from EIL also deposed that Ericsson directly dealt with Bhutan Telecom for expansion of network and M/s. UTH was appointed agent by EIL @ 3% commission of the cost of equipments. Sh. Saxena, Ld. Counsel submitted that this expansion work project was much less in the cost as compared to the main contract executed by TCIL. It was submitted that this shows the requirement of agent in such projects.
Whether there was any illegality or irregularity in the appointment of the agent in the present case ?
Sh. SK Saxena, Ld. Counsel submitted that the prosecution has not been able to bring any evidence on record to show that there was any illegality or irregularity in the appointment of agent. Ld. Counsel referred to the testimony of PW2 Sh. AK Duggal, PW7 Sh. Kulbhushan Batra, PW3 Sh. Ugen Norbu, PW13 Sh. NN Verma and PW15 Sh. VM Mittal.
PW2 in his testimony deposed that there were no codified rules for appointment of agents and Board of Directors and Chairman who are management can appoint agent. The witness also stated that there is no prohibition of appointment of an Indian agent for any overseas project. PW2 in his testimony had also proved the notes made by A1 regarding appointment of an agent and also proved that notes were duly approved by the CMD. PW7 also in his testimony deposed that nationality of an agent is CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 68 of 6 no bar for his appointment as an agent and an Indian can also be appointed as agent in the overseas project. Ld. Counsel submitted that PW13 also confirmed that there were no written guidelines in TCIL for appointing agents in foreign projects. The witness deposed that main criteria for such appointment is that agent should be familiar with local environment and should be in a position to provide business to TCIL. This witness also deposed that no wrong took place while appointing agent though he improved his statement by saying that he was not involved in the process of appointment of agent. PW13 had also deposed that there is no bar of any Indian Citizen to be appointed as an agent for a foreign project. It came in his testimony that generally the appointment of the agent is initiated by the country Incharge and processed by other officers and then CMD may approve or disapprove it. Ld. Counsel also referred to the testimony of PW3 Sh. Ugen Norbu who had deposed that agents gets commission only if the contract is awarded. This witness had also deposed that money is also required to be spend in order to achieve desirable result. Agents has to explore and develop his proper contacts for securing agencies. Ld. Counsel submitted that PW3 affirm that the work done by agent does not come to the notice of general public. It was further submitted that the plea of the prosecution that PW3 had offered to work @ 2% commission and this offer was made to A1 is not correct as the communication dated 14.08.2002, Ex.PW3/F on which the prosecution has relied is not CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 69 of 6 addressed to A1 by name and in this communication PW3 only informed his followup with Bhutan Telecommunication Corporation regarding this project and a further assurance was given that with technical expertise of TCIL and his relations with BTC, the success can be achieved. Ld. Counsel submitted that there is not even a whisper to infer that PW3 Ugen Norbu or his firm M/s. Ugen Trading House had offered their services as an agent @ 2%. Ld. Counsel submitted that even in the cross examination of PW15 Sh. VM Mittal (IO) he denied the suggestion that proper procedure and due process was not adopted in the process of appointment of agents.
What work was done by the agent and how it is to be judged ? Whether the contract could have won without agent ?
Sh. SK Saxena, Ld. Counsel submitted that an argument has been raised by the prosecution that there was no need of appointment of an agent and the work job could have been executed without any agent being such appointed and therefore, there is a loss by making the payment to A2 Sanjay Bhalla. It has been submitted that this argument is totally wrong. Ld. Counsel submitted that initially TCIL was not even allowed to bid and this was the consistent effort of A2 that TCIL was made front bidder and subsequently also in all the negotiations A2 played a major role. In this regard, the testimony of PW3 Sh. Ugen Norbu, PW4 Sanjay Kumar, PW13 NN Verma and PW15 Sh. VM Mital was referred. PW3 Ugen Norbu in his CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 70 of 6 cross examination admitted that agent gets commission only after the contract is awarded. He also admitted that money is also required to be spend in order to achieve desirable result. An agent has to explore and develop his proper contacts for securing agencies and such work done by the agent does not come to the notice of general public. PW4 Sanjay Kumar also deposed that he had gone to Bhutan in connection with this project before the final bid and he met A2 Sanjay Bhalla in such meeting at the office of Bhutan Telecom. PW13 Sh. NN Verma also deposed on oath that this was a very strategic project for TCIL as well as Govt. of India and it proved to be a very good project as TCIL got a net profit of more than 10% of the contract value. The witness admitted that as an agent the primarily duty of an agent is to secure the contract by using his own influence. Ld. Counsel further referred to PW13 wherein he deposed about pursuing the matter with the MEA for bridging up the gap between L1 & L2. He stated that MEA obtained the cabinet approval for the funding and conveyed the same to TCIL vide letter dated 30.09.2003. It also came in his testimony that negotiations / technical discussions which took place initially in the month of January 2003 in Thimpu, Bhutan were attended by this witness on behalf of GOI/TCIL as well as by some other officials and A2. The testimony of PW15 Sh. VM Mittal (IO) was also referred to wherein he stated that it came in his investigation that A2 Sanjay Bhalla had visited Bhutan in connection with this project and further pursued the CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 71 of 6 matter with MEA, New Delhi office. Ld. Counsel submitted that work of any agent in such project is not of tangible kind and consists of intangibles like persuasion, negotiations and lobbying for the client at different forums, formal and informal ones. It was submitted that award of the contract is the only parameter to assess the efforts of an agent.
Sh. SK Saxena, Ld. Counsel submitted that the work done by A2 can be assessed on the following grounds :
i) The tender was a limited one and TCIL was not invited to participate initially ;
ii) TCIL was L2 but selected due to the efforts of A2 ;
iii) MEA grant is not given to TCIL in all projects. It is to be earned through specific and special efforts ;
iv) the services of official of Bhutan Telecom were enlisted for negotiations through Sh. Ugen Norbu to whom payments were made out of the commission of A2 ;
v) If the requirement of agency was not there why even in the subsequent expansion phase of the project M/s. UTH was appointed as an agent and that also @ 3%.
Any Loss to exchequer/TCIL or peculiar gain to the Agent by appointment of agent ?
Sh. Saxena, Ld. Counsel submitted that CBI has taken a wrong plea that there were any loss to exchequer /TCIL or to Govt. of India CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 72 of 6 and corresponding any peculiar gain to the accused persons. In this regard, the testimony of PW7 Kulbhushan Batra, PW13 Sh. NN Verma, PW14 Sh. V. Parthasarthy, PW2 AK Duggal and PW3 Sh. Ugen Norbu were referred to. PW7 in his testimony admitted that the project was executed well in time and as such TCIL did not suffer any financial loss on account of the payment made to Bhutan Mystical towards the agency commission. Similarly, PW13 deposed that this proved to be one of very good project for TCIL as there was a net profit of more than 10% of the contract value. PW14 also admitted that the contract was well in time and TCIL did not suffer any financial loss in this project. This witness also stated that 3% agency commission was reasonable. PW2 deposed that part of the agency commission was to be made on receipt of payment by TCIL in terms of the conditions of the contract, Ex.PW2/B. PW3 also admitted that agent gets commission only if the contract is awarded and not otherwise. PW3 Sh. Ugen Norbu had also stated that an agent has also to make expenses for winning the contract. Ld. Counsel submitted that there is no question of any wrongful loss to TCIL or Govt. of India as the agent gets the commission only if the contract is awarded and payment is received. In such like cases, if the contract is awarded, an agent who had already spent some money would not get anything and would have to suffer losses. Payments (two components, prorata basis, no contract no payment) CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 73 of 6 Sh. SK Saxena, Ld. Counsel submitted that in the present contract, there were two components. One was to be paid by Royal Govt. of Bhutan in USD and another component was to be paid by this country by way of grant. It was also submitted that it has appeared in the testimony of PW2 that as per terms and condition of agency agreement, Ex.PW2/B, the agency commission was to be released on prorata basis depending upon the receipt of payment by TCIL. Ld. Counsel submitted that total value of the contract in this case was 78,85,170.67 USD on which @ 3% commission of the agent was 2,36,555.12 USD. But agent i.e. A2 received only 1,54,408.47 USD and a sum of 82,146.65 USD have not even till date received by the agent. Out of 1,54,408.47 USD A2 had paid 82,296.33 USD to PW3 Sh. Ugen Norbu and therefore, A2 is left only with 72,112.14 USD. Sh. Saxena, Ld. Counsel argued emphatically that there is not even an iota of evidence to infer the conspiracy between the accused persons. Even A1 and A2 did not know each other prior to this project and therefore, there is no question of conspiracy between the two. Ld. Counsel submitted that there is no material on record to establish that agency was procured by any fraud or deceitful means. Ld. Counsel submitted that as per prosecution, following three documents are forged :
a) MoU dated 15.05.2002, Ex.PW7/C executed between A2 Sanjay Bhalla and Sh. T. Dorji ;
b) letter dated 21.07.2002 addressed to A1 under the signature of PW16 CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 74 of 6 Sh. Sithar Tamang, Ex.PW3/C ;
c) letter dated 29.08.2002, Ex.PW3/B addressed to A1 purported to have been signed by PW16.
MoU dated 15.05.2002, Ex.PW7/C executed between A2 and Sh. T. Dorji Ld. Counsel submitted that MoU dated 15.05.2002, Ex.PW7/C was sent by fax from Bhutan through fax No.325468 installed at the office of M/s. BMTA. It was stated that PW16 has admitted in his testimony that fax machine was used to be under his lock and key. Ld. Counsel submitted that therefore, fax copy of MoU dated 15.05.2002 could have only emanated from the office of BMTA and therefore, it cannot be termed as a forged document by A2. It was further submitted that it also contains the signature of Sh. T. Dorji apart from A2 and it is not the case of the prosecution that signatures of said Sh. Dorji have been forged. The prosecution has not even cited the said Sh. Dorji as a witness. PW16 also did not state that the signature did not belong to Sh. Dorji. The specimen signature of Sh. Dorji were never obtained by CBI nor any opinion of handwriting expert exist regarding the signature of Sh. T. Dorji on said MoU. It has further been submitted that on the contrary as per evidence on record it is a genuine document as the fax copy of the MoU was recovered from the office premises of A2 as reflected in search memo Ex.PW15/C. CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 75 of 6 In the search visiting card of Sh. T. Dorji was also recovered. Ld. Counsel submitted that had it been a forged document, A2 could not have kept the fax copy of it for more than 2 years in his office.
Letter dated 21.07.2002 addressed to A1 under the signature of PW16 Sh. Sithar Tamang, Ex.PW3/C ; and Letter dated 29.08.2002, Ex.PW3/B addressed to A1 purported to have been signed by PW16 Sh. SK Saxena, Ld. Counsel submitted that the case of the prosecution is that both of these letters Ex.PW3/C and Ex.PW3/B are forged whereas they have miserably failed to prove the same. It has been submitted that perusal of testimony of PW16 would indicate that he is not truthful or reliable witness. Sh. Sithar Tamang (PW16) had been changing specimen signatures and two sets of different specimen signatures were obtained from him through letter rogatory. In the cross examination, witness admitted that he may be changing his pattern of his signatures frequently. Ld. Counsel submitted that PW16 never took a plea that these letters were not signed by him.
In regard to the handwriting expert report, Ld. Counsel submitted that the authorship of signature of Q1, Q2 and Q3 cannot be established by any sent of handwritings. Furthermore, the expert opinion report clearly shows that A2 is not the author of the questioned signatures CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 76 of 6 and therefore, no case u/S.468 IPC can be attributed .
Ld. Counsel submitted that the prosecution has also not been able to bring any evidence regarding usage of these documents. Therefore, S.471 IPC is also not attracted. Ld. Counsel submitted that CBI has not conducted the investigation properly and fairly. The material witness i.e. AK Chandershekhar the then Director (Finance), Sh. SK Tandon and Sh. GD Gaiha the then CMD of TCIL and the witnesses from MEA were not examined. CBI conducted the investigation in a callous and unprofessional manner only in order to shield the real culprits. Ld. Counsel submitted that if any loss has been caused that is on account of MEA having given grant instead of loan. TCIL persuaded A2 to increase the commission of Sh. Ugen Norbu from 1% to 2%. The payments of A2 were withheld on account of which he had to write two letters dated 28.06.2004 and 03.07.2004, Ex.DX1 and Ex.DX2 to Sh. GD Gaiha the then Chairman and Managing Director mentioning some malpractices in TCIL and further threatened to expose such corrupt officers. It has been submitted that on account of these two letters , a false case was foisted against A2 Sanjay Bhalla. Ld. Counsel submitted that there is no evidence of abuse of official position against A1. Ld. Counsel further submitted that there is no cogent and creditworthy evidence and therefore, accused persons are entitled to be acquitted.
Sh. SK Saxena, Ld. Counsel for accused submitted that in CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 77 of 6 order to attribute section 10 of Indian Evidence Act, which is an exception to the general rule as it permits the statement made by one conspirator to be admissible as against another conspirator. The first condition is that there should be "reasonable ground to believe" that the conspirators have conspired together. It has been submitted that this condition would be satisfied only if there is some prima facie evidence to show that there was some criminal conspiracy. Reliance was placed on State of Tamil Nadu through Superintendent of Police Vs. Nalini and others, 1999 Cril.L.J. 3124. Ld. Counsel submitted that in the present case, there is no "reasonable ground to believe" that there was any conspiracy between the accused persons.
Ld. Counsel has also relied upon LK Advani & Ors. Vs. Central Bureau of Investigation, 1997 JCC 294 . It was submitted by the defence that in LK Advani's case (supra) it was held that the prosecution must proved the factum of the conspiracy by evidence other than the disputed evidence. Ld. Counsel submitted that the prosecution has not led any independent evidence other than the disputed evidence and therefore, has miserably failed to prove the conspiracy between the accused persons.
Ld. Defence Counsel has also relied upon C. Chenga Reddy and Ors. Vs. State of AP, 1996 SCC (Cri) 1205, wherein it was inter alia held 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 CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 78 of 6 fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. In this case it was further inter alia held that the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In C. Chenga Reddy's case (supra) reliance was placed upon Abdulla Mohd. Pagarkar Vs. State (Union Territory of Goa, Daman & Diu), 1980 SCC (Cri.) 546, in which it was inter alia held that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedure, without conclusively establishing beyond a reasonable doubt, the guilt of the officials and contractors concerned may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused.
Ld. Counsel has also relied upon Alpana Das Vs. CBI, 2006 (90) DRJ 441. In this case it was also held that in order to attribute section 13(1)(d) of POC Act, 1988 there has to be deriving of some valuable thing or pecuniary advantage by the public servant either for himself or for someone else. Ld. Counsel submitted that in the present case, there is no evidence as to the deriving of any pecuniary advantage by the public servant i.e. A1 for himself or for coaccused i.e. A2. It was submitted that it is a settled proposition of criminal jurisprudence that suspicion, however grave, cannot be held sufficient. It was submitted that in the case based on circumstantial evidence the prosecution must fully establish its case CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 79 of 6 beyond reasonable doubt and the facts and circumstances so establish should not only be consistent with the guilt of the accused but they must be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. Reliance was placed upon State of UP Vs. Sukhbasi and Ors., 1985 SCC (Cri.) 387.
Sh. SK Saxena, Ld. Counsel submitted that the documents Ex.PW3/B and Ex.PW3/C cannot fall within the definition of "forged documents" as there is no evidence as to the fact that either of the accused persons signed the same. Reliance was placed upon Public Prosecutor Vs. PC Raju and Ors., 1968 Cri.L.J. 1878 (Vol. 74, CN 888). Ld. Counsel submitted that the prosecution has miserably failed to prove the offence u/S.13(1)(d) POC Act. In the present case, there is no evidence as to abuse of position. Reliance was placed upon SP Bhatnagar and Anr. Vs. The State of Maharashtra, AIR 1979 SC 826, in which it was inter alia held as under :
"Following the decision in M. Narayanan Nambiar v. State of Kerala (supra), it was held by this Court in Major S. K. Kale v. State of Maharashtra (supra) that the abuse of a position in order to come within the mischief of the section must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It was further held in this case that it is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person. It would, therefore, be necessary to find out in this case as to whether the accused abused their position and acted dishonestly or with a corrupt or oblique motive in having the contract in question entrusted to A4. As the courts below have rested their judgments on a constellation of CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 80 of 6 circumstances, it would be well to bear in mind the fundamental rule relating to the proof of guilt based on circumstantial evidence which has been settled by a long line of decisions of this Court. The rule is to the effect that in cases depending on circumstantial evidence, there is always the danger that conjecture or suspicion may take the place of legal proof.
In such cases the mind is apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely it is, considering such matters to cover reach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
22. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypotheisis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable grounds for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. (See Hanumant Govind Nargundkar v. State of M.P.,(1) Palvinder Kaur v. State of Punjab(2) and Charan Singh v. State of U.P.(3)." 7.0 I have considered the submissions and perused the record carefully.
CONCLUSION 7.1 In State of Tamil Nadu Vs. Nalini's case (supra), it was inter alia held that provisions as contained in Section 10 of IEA is a departure from the rule of hearsay evidence. Under Section 10 of IEA statement of CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 81 of 6 conspirator is admissible against coconspirator on the premise that this relationship exists. Prosecution, no doubt, has to produce independent evidence as to the existence of the conspiracy for Section 10 to operate but it need not prove the same beyond a reasonable doubt. It was further held that criminal conspiracy is a partnership in agreement and there is in each conspiracy a joint or mutual agency for the execution of a common object which is an offence or an actionable wrong. The effect of section 10 is that everything said, written or done by any of the conspirators in execution of or in reference to their common intention is deemed to have been said, done or written by each of them. It is a settled proposition that a conspirator is not, however, responsible for acts done by a conspirator after the termination of the conspiracy as aforesaid. In the landmark case referred herein above, State of Tamil Nadu Vs. Nalini (Supra), some of the broad principles governing the law of conspiracy were summarized, which are reproduced herein and same are as follows :
"1. Under Section 120A IPC offence of criminal conspiracy is committed when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. When it is legal act by illegal means overt act is necessary. Offence of criminal conspiracy is exception to the general law where intent alone does not constitute crime. It is intention to commit crime and joining hands with persons having the same intention. Not only the intention but there has to be agreement to carry out the object of the intention, which is an offence. The question for consideration in a case is did all the accused had the intention and did they agree that the crime be committed. It would not be enough for the offence of conspiracy when some of the accused merely entertained a wish, howsoever, horrendous it may be, that offence be committed.CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 82 of 6
2. Acts subsequent to the achieving of object of conspiracy may tend to prove that a particular accused was party to the conspiracy. Once the object of conspiracy has been achieved, any subsequent act, which may be unlawful, would not make the accused a part of the conspiracy like giving shelter to an absconder.
3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a conspiracy by direct evidence. Usually, both the existence of the conspiracy and its objects have to be inferred from the circumstances and the conduct of the accused.
4. Conspirators may, for example, be enrolled in a chain A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrolls. There may be a kind of umbrellaspoke enrollment, where a single person at the centre doing the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell whether the conspiracy in a particular case falls into which category. It may, however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse role to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role.
5. When two or more persons agree to commit a crime of conspiracy, then regardless of making or considering any plans for its commission, and despite the fact that no step is taken by any such person to carry out their common purpose, a crime is committed by each and every one who joins in the agreement. There has thus to be two conspirators and there may be more than that. To prove the charge of conspiracy it is not necessary that intended crime was committed or not. If committed it may further help prosecution to prove the charge of conspiracy.
6. It is not necessary that all conspirators should agree to the common purpose at the same time. They may join with other conspirators at any time before the consummation of the intended objective, and all are equally responsible. What part each conspirator is to play may not be known to everyone or the fact as to when a conspirator joined the conspiracy and when he left.CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 83 of 6
7. A charge of conspiracy may prejudice the accused because it is forced them into a joint trial and the court may consider the entire mass of evidence against every accused. Prosecution has to produce evidence not only to show that each of the accused has knowledge of object of conspiracy but also of the agreement. In the charge of conspiracy court has to guard itself against the danger of unfairness to the accused. Introduction of evidence against some may result in the conviction of all, which is to be avoided. By means of evidence in conspiracy, which is otherwise inadmissible in the trial of any other substantive offence prosecution tries to implicate the accused not only in the conspiracy itself but also in the substantive crime of the alleged conspirators. There is always difficulty in tracing the precise contribution of each member of the conspiracy but then there has to be cogent and convincing evidence against each one of the accused charged with the offence of conspiracy. As observed by Judge Learned Hand that "this distinction is important today when many prosecutors seek to sweep within the dragnet of conspiracy all those who have been associated in any degree whatever with the main offenders".
8. As stated above it is the unlawful agreement and not its accomplishment, which is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy is complete even though there is no agreement as to the means by which the purpose is to be accomplished. It is the unlawful agreement, which is the gravaman of the crime of conspiracy. The unlawful agreement which amounts to a conspiracy need not be formal or express, but may be inherent in and inferred from the circumstances, especially declarations, acts, and conduct of the conspirators. The agreement need not be entered into by all the parties to it at the same time, but may be reached by successive actions evidencing their joining of the conspiracy.
9. It has been said that a criminal conspiracy is a partnership in crime, and that there is in each conspiracy a joint or mutual agency for the prosecution of a common plan. Thus, if two or more persons enter into a conspiracy, any act done by any of them pursuant to the agreement is, in contemplation of law, the act of each of them and they are jointly responsible therefor. This means that everything said, written or done by any of the conspirators in execution or furtherance of the common purpose is deemed to have been said, done, or written by each of them. And this joint responsibility extends not only to what is done by any of the CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 84 of 6 conspirators pursuant to the original agreement but also to collateral acts incident to and growing out of the original purpose. A conspirator is not responsible, however, for acts done by a coconspirator after termination of the conspiracy. The joinder of a conspiracy by a new member does not create a new conspiracy nor does it change the status of the other conspirators, and the mere fact that conspirators individually or in groups perform different tasks to a common end does not split up a conspiracy into several different conspiracies.
10. A man may join a conspiracy by word or by deed. However, criminal responsibility for a conspiracy requires more than a merely passive attitude towards an existing conspiracy. One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime." 8.0 Shorn of the details, the case of the CBI is that the accused persons entered into a conspiracy and the accused persons cheated TCIL by getting M/s. Bhutan Mystical, owned by A2 appointed, as an agent misrepresented it to be a Bhutanese Company and in order to achieve this object forged the documents dated 21.07.2002, Ex.PW3/C and 29.08.2002, Ex.PW3/B. The accused persons also used these forged documents in pursuance of the said criminal conspiracy and in this process A1 being a public servant abused his official position. Thus, the court is required to adjudicate the following points :
i) Whether A1 and A2 entered into a criminal conspiracy to cheat Indian Govt. and to cheat TCIL.
ii) Whether A1 being a public servant misused or abused his official CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 85 of 6 position.
iii) Whether A1 illegally or dishonestly appointed A2 in order to cause wrongful loss to TCIL.
iv) Whether identity of M/s. Bhutan Mystical was deliberately concealed in the agency agreement and M/s. Bhutan Mystical was appointed agent in order to usurp 3% agency commission.
v) Whether the MoU dated 15.05.2002 (alleged to be between M/s.
Bhutan Mystical and M/s. BMTA), letter dated 21.07.2002, Ex.PW3/C (allegedly written by PW16 of M/s. BMTA) and letter dated 29.08.2002 on the letterhead of M/s. BMTA, Ex.PW3/B, are forged documents.
vi) Whether these forged documents were used as genuine knowing fully well that these were forged documents.
(i) Whether A1 and A2 entered into a criminal conspiracy to cheat Indian Govt. and to cheat TCIL 8.1 If we peruse the evidence of the prosecution witnesses we would reach inevitable conclusion that A1 and A2 were pursuing the conspiracy since inception. It has come in the evidence of PW3 Ugen Norbu that he received a mail on 06.08.2002 from A1 that they would be visiting Bhutan and during this visit A1 introduced A2 and also informed PW3 that his firm M/s. Ugen Trading House cannot be appointed as an CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 86 of 6 agent directly and suggested that he should work with one of TCIL's associate i. e. M/s Mark Tech India. It is pertinent to mention here that M/s. Mark Tech India is again owned by A2 and he was introduced to be so. It also came in the evidence of PW3 that at the instance of A1 he signed MoU with A2 Sanjay Bhalla i.e. Ex.PW3/A. This categorical evidence of PW3 shows the criminal conspiracy between A1 and A2 in order to ensure that the benefit of agency had to be extended to A2. It has also come in the evidence that this conspiracy could be discovered only when PW3 started contacting TCIL officials directly in respect of the payment of commission. It has also come on the record that M/s. Ugen Trading House of PW3 Ugen Norbu was very much in the filed of telecommunication and he was actively in touch with M/s. Ericsson whereas, M/s. Bhutan Mystical owned by A2 has not been able to bring any evidence to this effect on the record. The fact that PW3 Ugen Norbu and his firm M/s. Ugen Trading House was in touch with EIL has also been proved by deposition of PW6 Sameer Sinha. It has also come in the testimony of prosecution witnesses that though there were no codified rules and no specific ban for appointing an Indian to be agent but it was always desirable that a native of that country where the project was to be executed, was preferable in order to support the contract. In the present case, if we peruse the noting dated 16.08.2002, Ex.PW7/A, it would reveal that A1 gave an impression that M/s. Bhutan Mystical was a Bhutanese CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 87 of 6 Company. The fact that A1 signed the MoU between M/s. Mark Tech India owned by A2 and M/s. Ugen Trading House, Ex.PW3/A as a witness, shows the conspiracy between A1 and A2. PW8 Sh. Sanjeev Kumar has also deposed that such agent should be a local person who had local knowledge of law and who could do liaison work for the concerned embassy. In the cross examination also, this witness also stated that the agents who were nationals of that country were preferred. The conspiracy between A1 and A2 is also proved by the fact that A1 in his official noting represented that he had sent a letter to the Indian Embassy confirming about the credentials of M/s. Bhutan Mystical whereas, PW9 proved the letter dated 20.07.2004, Ex.PW9/A from Sh. Raveesh Kumar, First Secretary to the fact that such letter from A1 had not been received by Embassy. It has also come in the testimony of PW13 Sh. NN Verma that when he went alongwith A1 to Bhutan, A2 was also accompanying and he met them at the Airport and they all stayed in the same hotel. This visit was apparently even before the M/s. Bhutan Mystical was proposed to be appointed as an agent. The defence has taken a plea that the power of appointing an agent was with CMD and therefore, A1 cannot be held liable for entering into conspiracy with A2. However, we cannot loose sight of the fact that A1 was the country head and he was the nodal agency to recommend about the appointment of an agent. The noting on the record also proves it beyond reasonable doubt that entire discretion to appoint CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 88 of 6 agent was vested with A1. The record also proves that the accused persons in pursuance of the conspiracy represented M/s Bhutan Mystical, a Bhutanese company, whereas it was not so. A1 also did not send the letter to Embassy but made a noting on record that he had sent such letter. It has repeatedly been held by the superior courts that conspiracy is always hatched in secrecy and executed in dark. It is very difficult to get the direct evidence in the conspiracy. In the present case, I consider that there is enough evidence on record regarding the conspiracy between A1 and A2. Hence, I hold guilty A1 and A2 for the offence of conspiracy.
(ii) Whether A1 being a public servant misused or abused his official position 8.2 It is not disputed that A1 was a public servant. The charge against A1 is that he misused / abused his official position.
Section 13(1)(d) of POC Act, 1988 reads as under :
"13. Criminal misconduct by a public servant: (1) A public servant is said to commit the offence of criminal misconduct,
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or
(iii) while holding office as a public servant, obtains for any person any valuable thing or CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 89 of 6 pecuniary advantage without any public interest ."
The necessary ingredients of Section 13(1)(d) are as follows :
1) accused was a public servant;
2) accused used corrupt or illegal means or otherwise abused his position; and,
3) accused obtained for himself or for any other person any valuable thing or pecuniary advantage without any public interest.
The record would spell out that specific subclause i.e. (i), (ii) and (iii) were not mentioned in the charge framed against the accused persons. I consider that it is not a fatal irregularity and has not caused any prejudice to the accused as all the particulars regarding charge were given.
In Runu Ghosh Vs. CBI, Crl. A. No.482/2002 decided on 21.12.2011, Hon'ble High court of Delhi while interpreting S.13(1)(d)(iii) inter alia held that a new offence (or subspecies, of the existing offence) has been carved out, in Section 13 (1) (d) (iii) which criminalizes, as "criminal misconduct" the act of a public servant, holding office, which results in someone else (any person) benefiting by getting a valuable thing or pecuniary advantage, without any public interest. It was further held that there is no doubt that Parliament created this new offence of criminal misconduct, where abuse of office, or use of corrupt or illegal means by a public officer, is inessential to prove the crime. What the prosecution has CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 90 of 6 to establish, in accordance with law, is that the public officer, obtained for someone else not necessarily by abusing his office, or using corrupt or illegal means pecuniary advantage or a valuable thing without public interest.
Section 13(1)(d)(iii) POC Act was interpreted by the Hon'ble High Court of Delhi on the point that whether mensrea is required or not. It was inter alia held that :
"70. There is no doubt that Section 13 (1) (d) (iii) differs from other parts of the Act, not only in structure, but also in substance. The use of terms such as "habitually accepts" "agrees to accept" "attempts"
"consideration" which he knows to be inadequate "dishonestly or fraudulently misappropriates." (property "entrusted" to him or "allows any other person so to do") "corrupt or illegal" "abusing his position"
are clear pointers to Parliamentary intention that mens rea is essential to be proved in relation to the offences provided for under Section 13 (1) (a) to (d) (i) and (ii). Section 13 (1) (d) (iii) contains no such words, which point to criminal intent. There is substance in the Appellants‟ arguments that the Supreme Court had previously interpreted Section 5 (1) (d) so as to mean the existence of criminal motive (dishonest intent). This was stated in Narayanan Nambyar's case (supra) as follows:
"The gist of the offence under this clause is, that a public officer abusing his position as a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage. "Abuse" means misuse i.e. using his position for something for which it is not intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word "otherwise" has wide connotation and if no limitation is placed on it, the words "corrupt", "illegal" and "otherwise"
mentioned in the clause become surplus age, for on that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say something savouring of dishonest act on his part.... CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 91 of 6 Similarly, the other cases cited, i.e. S.P. Bhatnagar ("whether the accused abused their position and acted dishonestly or with a corrupt or oblique motive") Abdulla Mohammed (supra); A. Wati Ao; C.K. Damodaran Nair; M. Mohiuddin and R. Balakrishna Pillai (supra) support this view. In the last decision, it was held that the offence requires intention, and the offence comprehended an element of mental state would be necessary to do a conscious act to get the required result of pecuniary advantage or to obtain any valuable thing, even if it is for someone else.
71. The question is, whether this setting compels the court to hold that mens rea is, like the other provisions, a necessary prerequisite or pre condition which the prosecution has to establish, from the conduct of a public servant. It would also be relevant here to mention that Section 13 (1) (e) appears to be in line with Section 13 (1) (d) (iii) in as much as there is no pointer to criminal intent. That provision declares that a public servant in possession of pecuniary resources or property which he cannot satisfactorily account, or which are disproportionate to his known sources of income is guilty of criminal misconduct. Here, the sources of income may or may not be connected with the public servant‟s duties; the emphasis is on inability to satisfactorily account, or that the wealth or assets held are disproportionate to the servant‟s known sources of income."
It was specifically held that in Runu Ghosh's case (supra) that the absence of any words or terms in Section 13(1)(d)(iii) cannot drive the court to hold that proof of criminal intention is a sine qua non for conviction of an accused. It was specifically concluded that mensrea is inessential to convict an accused for the offence u/S.13(1)(d)(iii). The natural corollary of this would be that if the prosecution has proved that the public servant "obtains" by his act, pecuniary advantage or valuable thing, to another, without public interest it would be sufficient to attribute S.13(1)(d)(iii).
CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 92 of 6
Public servant acts as a trustee and holds the property for the public and therefore, is duty bound to act fairly and reasonably. The mandate of the constitution is that every holder of a public office is ultimately accountable to the people and therefore, all powers vested in the public servant are bound to be exercised for public good and in public interest. Such duty is to be exercised in larger public and social interest and adhering to the statutory provisions and fact situation of the case. It has been repeatedly held that the public servants cannot play fast and loose with the powers vested in them, thus, any decision taken in an arbitrary manner contradicts the principle of legitimate expectation. In Runu Ghosh's case (supra) it was inter alia held as under :
"75. It would be profitable to emphasize that public servants are an entirely different class, and the level of trust reposed in them by the society is reflected in the high standards of behaviour and rectitude expected of them, both in the discharge of their duties, and otherwise."
In LIC of India Vs. Consumer Education & Research Centre, (1995) 5 SCC 482, it was inter alia held as under :
"Public authorities or those whose acts bear insignia of public element, action to public duty or obligation are enjoined to act in a manner i.e. fair, just and equitable, after taking objectively all the relevant options into consideration and in a manner that is reasonable, relevant and germane to effectuate the purpose for public good and in general public interest and it must not take any irrelevant or irrational factors into consideration or appear arbitrary in its decision."CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 93 of 6
In the present case, A1 Ashok Kumar Sharma acted in a manner which certainly was not expected of him. The manner in which he was traveling to Bhutan alongwith A2 Sanjay Bhalla even before the submission of the bid and then introduced M/s. Bhutan Mystical as a Bhutanses firm whereas, it had nothing to do with M/s. BMTA, exhibits his total indifferent and criminal attitude towards the obligation casted upon him. This action of A1 owed an accountability of the act done or duties performed by him by virtue of the public office held by him. It has repeatedly been held that the persons at the high position must perform public duties with the sense of performance, direction and under rules. The act and conduct of A1 by virtue of which A2 obtained pecuniary advantage without public interest certainly brings him within the purview of S.13(1)
(d) of POC Act. The act and conduct of A2 displays complete and manifest disregard with the public interest with the corresponding result of A2 obtaining pecuniary advantage or valuable thing. Therefore, A1 is liable to fastened with responsibility for "criminal misconduct" u/S.13(1)(d)(iii) of POC Act, 1988.
In Runu Ghosh's case (supra)
it was inter alia held that "this
offence under Section 13 (1) (d) (iii) advisedly does not require proof of intent, or mens rea, because what Parliament intended was to punish public servants for acts which were without public interest. This kind of offence is similar to those intended to deal with other social evils, such as CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 94 of 6 food and drug adulteration, (offences under Prevention of Food Adulteration Act, Section 13 (1), Drugs and Cosmetics Act:; Section 7 (1) Essential Commodities Act, 1955, Section 25, Arms Act, 1959), possession of explosives, air and water pollution, etc."
Therefore, in view of the above discussions, A1 Ashok Kumar Sharma abused his position as a public servant and caused pecuniary gain / advantage for himself and for others.
(iii) Whether A1 illegally or dishonestly appointed A2 in order to cause wrongful loss to TCIL.
8.3 A1 and A2 after having entered into conspiracy ensured that M/s. Bhutan Mystical is appointed as an agent. It has come in the evidence of PW16 Sh. Sithar Tamang that the accused persons had visited him and made inquiries regarding the transportation from Paro to Thimpu and other places. Accused persons also inquired about rates of Mini Bus, Cars and Coaster Buses. Accused persons insisted that rates be quoted on firm's letterhead. PW16 Sh. Sithar Tamang who was Manager of M/s. BMTA deposed that accused persons also invited him to their hotel and offered him a cup of tea. It has also come in the testimony of PW16 that he had not signed the letters dated 21.07.2002 and 29.08.2002 i.e., Ex.PW3/C and Ex.PW3/B. He also denied to have executed the agreement dated 15.05.2002, Ex.PW7/C. In the noting dated 16.08.2002, which was the first CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 95 of 6 noting regarding the appointment of agent, A1 represented that M/s. Bhutan Mystical is a company locally registered in Bhutan whereas lateron, A2 admitted that it was a sole proprietorship firm. The accused persons also failed to prove that it was registered in Bhutan. Sec. 106 Indian Evidence Act casts burden upon the accused to prove the facts which is in their knowledge and possession. The accused persons miserably failed to prove such facts on record in the present case. Thus, A1 misrepresented that M/s. Bhutan Mystical is a Bhutanese Company and the true and complete identity of M/s. Bhutan Mystical was not revealed / disclosed. A1 also did not bring it on record that PW3 Sh. Ugen Norbu who was in the field, had contacted him and offered his services. It has also come in the testimony of prosecution witnesses as discussed herein above that a person of the country where the job is to be executed was always preferable. It has come in the testimony of PW7 Sh. Kulbhushan Batra, the then Executive Director that had he learnt about the fact that M/s. Bhutan Mystical is based in India he would have recorded such fact in the file and sought Chariman's view on the same. There is nothing on record to suggest that M/s. Bhutan Mystical in any manner supported TCIL in getting the contract. The defence has relied heavily upon the photograph of A2 with King of Bhutan. I consider that this is too flimsy. Ld. Counsel has also emphasized alot on the achievements in the said contract but there is not even an iota of evidence that any of such achievement can be CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 96 of 6 attributed to A2. It has come in the evidence of PW8 Sh. SK Verma that a letter dated 05.11.2004 of First Secretary, Ex.PW9/D was issued wherein it was confirmed that M/s. Bhutan Mystical was a company registered with the Association of Bhutan Tour Operators. I consider that accused persons acted in very smart way and they were successful in circumventing the entire procedure. Infact they tampered and manipulated the entire process in a manner that first they found out a firm in the name of M/s. BMTA and then coined a firm in the name of Bhutan Mystical which was almost similar in name and misused / exploited this similarity. It seems that Indian Embassy also in their letter Ex.PW9/D only referred to M/s. BMTA. Since in the same letter it has been mentioned that this was registered with the association of Bhutan Tour Operators. I have also checked on internet and found that M/s. BMTA is totally concerned with tours and travels and has nothing to do with the telecommunications. It would be very illogical that a firm of tours and travels would represent to be appointed as an agent in such a big telecommunication project. Even if we presume for the sake of arguments that A1 wanted to appoint M/s. BMTA as an agent then again it would have been misconduct and abusing of official position by A1 because M/s. BMTA was only a tour and travel company. Hence, I consider that A1 illegally or dishonestly appointed A2 in order to cause wrongful loss to TCIL.
CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 97 of 6
(iv) Whether identity of M/s. Bhutan Mystical was deliberately concealed in the agency agreement and M/s. Bhutan Mystical was appointed agent in order to usurp 3% agency commission. 8.4 Having been concluded that A1 and A2 were in conspiracy and A1 appointed M/s. Bhutan Mystical illegally and dishonestly, there is no hesitation in reaching to the conclusion that identity of M/s. Bhutan Mystical was deliberately concealed. It has come in the evidence of PW14 Sh. V. Parathasarthi that the fact that M/s. Bhutan Mystical was an Indian entity came to his knowledge only when PW3 came to TCIL from Bhutan regarding his commission. The perusal of the record would also indicate that accused persons in conspiracy between themselves were able to conceal the identity of M/s. Bhutan Mystical from TCIL. The record would also show that sometime letters were being sent on the letterhead of M/s. Bhutan Mystical and sometime on the letterhead of M/s. BMTA. PW16 Sh. Sithar Tamang has specifically stated in his testimony that his firm had never entered into any telecommunication business nor the firm has done any other business except tour and travel. He has also stated that they have no firm by the name of M/s. Bhutan Mystical.
(v) Whether the MoU dated 15.05.2002 (alleged to be between M/s.
Bhutan Mystical and M/s. BMTA), letter dated 21.07.2002, Ex.PW3/C (allegedly written by PW16 of M/s. BMTA) and letter dated 29.08.2002 on the letterhead of M/s. BMTA, Ex.PW3/B, CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 98 of 6 are forged documents ;
AND Whether these forged documents were used as genuine knowing fully well that these were forged documents.
8.5 The prosecution has alleged that all the three documents i.e., MoU executed between M/s. Bhutan Mystical and M/s. BMTA, Ex.PW7/C as well as letter dated 21.07.2002, Ex.PW3/C and letter dated 29.08.2002, Ex.PW3/B, are forged documents. In respect of this the prosecution has examined PW16 Sh. Sithar Tamang who has specifically stated on oath that letter No.BM/TCIL/2002/001 dated 21.07.2002, Ex.PW3/C and letter No.BM/TCIL/2002/002 dated 29.08.2002, Ex.PW3/B had never been written by him to A1, Group General Manager, TCIL, in connection with Sales Consultancy for TCIL. PW16 specifically deposed on oath that purported signatures in the name of Sh. Sithar Tamang are not his signatures. The witness stated that he cannot say who had put these signatures however, the same are forged. Similarly, the witness stated that the MoU dated 15.05.2002. Ex.PW7/C was never executed with M/s. BMTA. The witness also deposed on oath that he has not signed this MoU. The defence has submitted that prosecution has miserably failed to prove that these were forged documents in view of the fact that CBI did not take the specimen signatures of PW16 Sh. Sithar Tamang nor the same were sent to CFSL for expert opinion. It has been submitted that PW16 had continuously been changing his signatures and he has also admitted the CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 99 of 6 same in the cross examination. It was submitted that PW16 has made a false statement that M/s. Bhutan Mystical at B130, Lajpat Nagar - I, New Delhi is not a sister concern of M/s. BMTA. The case of the defence is that PW16 had made a false statement and infact he had signed the letters Ex.PW3/C, Ex.PW3/B and MoU, Ex.PW7/C. I consider that the plea of the defence does not hold any force. PW16 Sh. Sithar Tamang is a Bhutanese National. He came all the way from Bhutan to depose before this court. PW16 has specifically stated on oath that he had not signed MoU dated 15.05.2002, Ex.PW7/C and letters dated 21.07.2002 and 29.08.2002, Ex.PW3/C and Ex.PW3/B, respectively. There is no reason for a Bhutanese National to come and depose falsely against the accused persons. Such a witness cannot have any ill will or motive against the accused persons. It is correct that IO could have been taken specimen signatures or admitted signatures of this witness or get it examined from CFSL. However, it is a settled proposition that for the defect in the investigation, the benefit cannot be given to the accused persons. It is also necessary to mention here that the investigation in this case was to be conducted across the borders of this country. In such an event, there would have been many logistical and procedural impediments for the IO. It is a settled proposition that the prosecution is required to prove its case beyond reasonable doubt and not beyond every doubt. The court itself has also compared the signatures of PW16 Sh. Sithar Tamang on the various documents like Ex.PW16/DB, CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 100 of 6 Ex.PW16/DC and Ex.PW16/A and have found that these are totally different from the signatures on letters Ex.PW3/C, Ex.PW3/B and MoU dated 15.05.2002, Ex.PW7/C. Even otherwise, the tone and tenor of these documents also indicate that these are not genuine documents. Letter dated 21.07.2002 which was purportedly written by M/s. BMTA regarding sale consultancy, on the face of it, is not believable. The firm M/s. BMTA which is a travel company has no reason in offering its services for GSM Network project. Letter dated 29.08.2002 whereby M/s. BMTA are shedding their responsibility was not brought on record by A2. Similarly, MoU dated 15th May, Ex.PW7/C even does not indicate that in which year it was executed but simply says that MoU was executed on 15th May. The defence has heavily relied upon the fax number bearing on the same. However, merely on the basis of the fact that fax number 9752325468 belongs to M/s. BMTA will not make this document genuine. If the signatory of the documents themselves are denying the signatures, the documents cannot be said to be genuine. However, the prosecution has failed to prove that who had put the signatures on these documents.
The term "forgery" has been defined u/S.463 IPC, which reads as under :
"463. Forgery. Whoever makes any false document or part of a document with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 101 of 6 forgery."
Section 464 IPC defines "making a false documents".
Combined reading of S.463 and S.464 would make it clear that a person who makes a false document commits forgery. It is a settled proposition that a false document or part of a document is not the writing of any number of words which in themselves are innocent. The affixing of the seal or signature of some person to the document or part of a document knowing that the seal or signature is not his and that he gave no authority to affix it would make it sinister. In other words, the falsity consists in the document or part of a document being signed or sealed with the name or seal of a person who did not in fact sign or seal it.
In the present case, PW16 denied to have signed or executed the above referred documents. The benefit of these documents were derived by the accused persons. It is an admitted case that Ex.PW7/C was recovered from the possession of A2 and Ex.PW3/C and Ex.PW3/B were recovered from the official record. Letter dated 21.07.2002, Ex.PW3/C was referred to by A1 in his noting dated 16.08.2002. However, there is no direct evidence of forgery of these documents but the circumstances would indicate that it were only the accused persons who used these documents. In view of the testimony of PW16 Sh. Sithar Tamang the above referred documents i.e. Ex.PW3/B, Ex.PW3/C and Ex.PW7/C are the false documents. I consider that there is enough material on record to conclude CBI Vs. Ashok Kumar Sharma & Anr. CC No.07/13 Page 102 of 6 that Ex.PW3/B, Ex.PW3/C and Ex.PW7/C are forged documents and A1 and A2 used these forged documents .
9.0 In view of the discussions made herein above, this Court is of the considered view that A1 Ashok Kumar Sharma and A2 Sanjay Bhalla entered into a criminal conspiracy in order to cheat TCIL, Govt. of India, and A1 Ashok Kumar Sharma abused his official position and used the forged documents. Therefore, A1 Ashok Kumar Sharma and A2 Sanjay Bhalla, both are convicted for the offence u/S 120B IPC r/w Sec. 13(2) r/w 13(1)(d) POC Act, 1988, Sec. 420 IPC and Sec. 471 IPC. Further, A1 Ashok Kumar Sharma is also convicted for the substantive offence u/S 120B IPC, sec. 13(1)(d) r/w 13(2) of the POC Act and Sec. 420 IPC and Sec. 471 IPC. Accused Sanjay Bhalla is also convicted for the substantive offence u/S 120B IPC, Sec. 420 IPC and Sec. 471 IPC.
Announced in open Court on (Dinesh Kumar Sharma)
Date: 12.09.2014 Spl. Judge (PC Act) : CBI01
Saket Courts : New Delhi.
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