Delhi District Court
Cbi vs Ram Prakash on 24 September, 2013
CBI vs Ram Prakash
IN THE COURT OF SH. GURVINDER PAL SINGH,
SPECIAL JUDGE (PC ACT) (CBI)6,
PATIALA HOUSE COURT, NEW DELHI
CC No. 45/12 (Old CC No. 21/12)
RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI
U/S 7, 13 (2) read with Section 13 (1)(d) of PC Act
CBI vs. Ram Prakash
Unique ID No.: 02403R0007502012
Central Bureau of Investigation
vs.
Ram Prakash S/o Late Barkhat Ram,
R/o 98, Friends Colony, Jalandhar, Punjab
Date of FIR : 11/08/2010
Date of filing of Chargesheet : 30/12/2011
Case received by transfer on : 17/07/2012
Arguments concluded on : 06/09/2013
Date of Judgment : 24/09/2013
Appearances
For prosecution : Sh Anil Tanwar, Ld. Public Prosecutor for CBI.
For accused : Sh Pawan Kumar, Ld. Counsel for Ram Prakash.
RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 1/83
CBI vs Ram Prakash
JUDGMENT
FACTS GERMANE TO REGISTRATION OF CASE AND CONCLUSION OF INVESTIGATION The instant case had been registered against accused Ram Prakash (herein after referred as A1) that while working as a public servant in the capacity of Commissioner, Customs, Central Excise and Service Tax, Hyderabad Commissionerate IV, A1 indulged in corrupt practices.
2. It was alleged that M/s Megha Engineering and Infrastructure Limited (herein referred to as MEIL) was a limited company incorporated under the Companies Act which provided turnkey solutions in major engineering disciplines and undertakes irrigation, water management, oil and gas, public and industrial infrastructure related projects. MEIL also has its own manufacturing facilities for manufacturing pipes and also executes various projects for the Irrigation Department of Government of Andhra Pradesh and for projects for ONGC Power Projects etc.
3. It was further alleged that during the further investigation it was revealed that a team of Anti Evasion Wing of the Central Excise and Service Tax, Hyderabad CommissionerateIV had raided the manufacturing unit premises of MEIL on 10/12/2008 after obtaining RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 2/83 CBI vs Ram Prakash approval from A1, the then Commissioner, Customs, Central Excise & Service Tax, Hyderabad Commissionerate IV, to check availing of excessive Cenvat Credit and non payment of service tax by MEIL. The team had seized a number of records of contracts pertaining to works executed by it and had observed that MEIL had not paid service tax on the services rendered by it relating to laying of pipe lines for drinking water and irrigation projects. It was also observed that the Company was taking full credit in execution of the Works Contracts resulting in accumulation of the Cenvat Credit in contravention of Cenvat Credit Rules, 2004 and was not paying due Service Tax. Verification of the service tax liability and payment schedules of MEIL, under Composite Works Contract, on the basis of valuation under Rule 11 of the Cenvat Credit Rules, 2004 was recommended by the Anti Evasion wing as the Company had claimed to have received payments from manufacturing of the pipes and commissioning of the same. Further seizure of the records was made by the officials of Anti Evasion Section after taking approval from Commissioner, Customs, Central Excise & Service Tax, Hyderabad Commissionerate IV i.e. A1 and case was registered by the Anti Evasion Wing against MEIL on 29/12/2008 for the service tax liability for Rs 200 Lakhs approximately.
4. It was further revealed that the Anti Evasion Wing had observed that MEIL manufactured M.S. Pipes, Valves etc., at seven manufacturing units located at (i) Gowdavalli, Medchal Mandal; (ii) RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 3/83 CBI vs Ram Prakash PhaseI, IDA, Jeedimetla; (iii)Timmapuram Village, Cuddapah district;
(iv) Vinayakapuram Village, Khyamman district; (v) Settivarlpalli Village, Cuddapah district; (vi) Vinayakapuram Village, Khammam District and (vii) Chunchupalli Village, Khammam District and executed works mainly in the fields of Irrigation and Command Area Development Department, Public Health Department, Rural Water Supply Project, APGENCO and ONGC, classified under Works Contract Service from 01/06/2007 which were liable to payment of service tax on the services rendered by it. However, MEIL contended that it was exempted from paying service tax on the works relating to the projects involving "Erection, Commissioning or Installation" of irrigation and laying of water pipe lines for the government projects like water treatment plant, water supply plants commissioned through a pipe line or by formation of a canal and that same were excluded from the taxable category of Works Contract services.
5. Subsequent to receipt of the above submissions from MEIL, A1 had written to the Commissionerates of Chennai, Bangalore and HyderabadII asking them about the practices adopted for collecting service tax.
6. It was further revealed that at this stage, A1 was transferred from Hyderabad Commissionerate IV and Sh P.N Rao, Commissioner, his successor issued a Show Cause Notice to MEIL vide O.R. No. RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 4/83 CBI vs Ram Prakash 129/2010Adjn.(Commr.)S. Tax dated 13/10/2010 demanding recovery of total amount of Service Tax, Education Cess and Higher Education Cess, total amounting to Rs. 2,17,06,68,766/.
7. It was further revealed that in addition to the above proceedings, the Audit Wing under the administrative control of A1 also conducted audit of books of accounts of MEIL for the period from February 2008 to March 2009 and had raised following observations against MEIL:
(i)Irregular availing of Cenvat Credit in respect of RTPP, Yerraguda and ONGC, Ahmedabad (Revenue implication of Rs 3,21,34,497/ (plus interest).
(ii)Nonpayment of Service Tax on Work Contract Service relating to supply of pipes by MEIL, under 18 work contract orders in one unit. Since MEIL had 7 units, the Service Tax liability would have exceeded Rs 50 Crores.
(iii) Nonpayment of 10% of amount in terms of Rule 6(3) of Cenvat Credit Rules, 2004, on additional consideration received due to price variation in respect of Telugu Ganga project, Lingala Canal, Kadapa (Revenue implication of Rs. 21,60,209/ plus interest).
RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 5/83 CBI vs Ram Prakash
8. It was further revealed that the aforesaid proceedings against MEIL had been initiated at the instance of A1 resulting in issuance of the Show Cause Notice to MEIL demanding recovery of the Service Tax and the Cenvat Credit irregularly availed by it.
9. It was further revealed that despite knowing well that the matters pertaining to realization of Service Tax and the central excise had been dealt with by him, A1 had demanded and accepted an illegal gratification of Rs 5 lakhs from Sh Prasad Rao, DGM (Finance) of MEIL during January/February 2009 by threatening him to seize the books of accounts and bank accounts of MEIL, if said bribe amount of Rs 5 lakhs was not paid by MEIL to him.
10. It was further revealed that A1 used to pressurize Sh Prakash Babu, the then Superintendent, Anti Evasion Section working under his control, to call the proprietors/representatives of private companies having work with the Central Excise Department and arrange his talk with the said private companies and directed him to collect the bribe money from said private parties and to give the same to him. In one of such instances, A1 had demanded an illegal gratification of Rs 5 lakhs from MEIL and had asked Sh Prakash Babu to collect the same from the representatives of MEIL. Accordingly, he had collected Rs 5 lakhs from Sh Prasad Rao, DGM (Accounts) of MEIL at Hyderabad during January/February, 2009 which were delivered by him to A1. A1 RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 6/83 CBI vs Ram Prakash had asked Sh Prakash Babu to deposit the same amounts in the bank accounts of his relatives and other persons at Jalandhar, Punjab out of the bribe money he collected from said private parties, which he used to deposit at various banks.
11. It was further revealed that Sh Prakash Babu had filled up a number of deposit slips/forms at PNB, Bank Street Branch, Abids, Hyderabad for transferring amounts given to him in cash by A1 amounting to Rs 5.96 lakhs into an account no. 392000010112018 in the name of Miss Shilpi Babbar at PNB, KMV College Branch, Jalandhar, Punjab who is daughter of sister of A1's wife during the period from January 2009 to June 2009.
12. It was further revealed that Sh Prakash Babu had filled up deposit slips in his hand in respect of Rs 2.26 lakhs transferred in the account of Miss Shilpi Babbar out of the total amount of Rs. 5.96 lakhs. Handwriting of Sh Prakash Babu on these deposit slips has been confirmed by handwriting experts of GEQD, Shimla.
13. Pardon under Section 306 Cr.P.C read with Section 5 (2) of Prevention of Corruption Act 1988 to Sh V. Prakash Babu, Superintendent, Customs and Central Excise was granted by my Ld. Predecessor Sh Sanjeev Jain, Special Judge (PC Act), CBI02, PHC, ND vide order dated 16/12/2011.
RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 7/83 CBI vs Ram Prakash
14. On completion of the investigation, chargesheet was filed by the investigating agency on 30/12/2011. Since A1, the public servant, had retired from government service, no sanction under Section 19 of Prevention of Corruption Act 1988 was taken for prosecution of A1. The cognizance of the case was taken by my Ld. Predecessor Ms. Swarana Kanta Sharma, Special Judge, CBI05, Patiala House Courts, New Delhi on 12/01/2012 and arraigned accused persons Ram Prakash (A1), N. Thirupati Rao (A2) and M. Prasad Rao (A3) were summoned. On appearance A1, A2 and A3 were enlarged on bail and copies were supplied to them. Vide order dated 03/03/2012 of my Ld. Predecessor, pardon was granted to N. Thirupati Rao (A2) and M. Prasad Rao (A3) after recording their statements on oath on moving of application under Section 306 Cr.P.C read with Section 5 (2) of Prevention of Corruption Act 1988 by Investigating Officer Inspector S.K Sharma.
15. Requirements under Section 207 Cr.P.C were complied with.
CHARGE
16. In terms of order of charge dated 16/05/2012 of my Ld. Predecessor, charge for offences under Sections [1] 7 of Prevention of Corruption Act 1988 and [2] 13 (2) read with Section 13 (1)(d) of Prevention of Corruption Act,1988 was framed on 16/05/2012 against A1 to which he pleaded not guilty and claimed trial.
RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 8/83 CBI vs Ram Prakash PROSECUTION EVIDENCE
17. To connect A1 with the offences charged, prosecution has examined in all 28 witnesses namely Sh V. Parkash Babu (PW1); Sh N. Thirupathi Rao (PW2); Sh M. Prasad Rao (PW3); Inspector B. Bala Chandra Sekhar (PW4); Sh T. Bhaskara Rao (PW5); Sh Dinesh Gupta (PW6); Sh K. Sirish Kumar (PW7); Sh. P. Uma Shankar (PW8); Sh Deepak R. Handa (PW9); Sh R.S Rana (PW10); Sh S. Ramana Rao (PW11); Sh T. Naga Mahesh (PW14); Sh K. Murli Krishna (PW15); Sh K. Venkateswara Rao (PW16); Sh Shrikant S. Patil (PW17); Sh T. Srinivasan (PW18); Sh Vijay Babbar (PW19); Sh S.C Shukla (PW20); Sh Amit Kaushik (PW21); Sh M. Sridhar Reddy (PW22); Sh Babulal Mukherjee (PW23); Sh P.S.V Subba Rao (PW24); Mrs. T. Malleswari (PW25); Sh R. Thimothy (PW26); Inspector S.K Sharma (PW27) and Sh Nirmal Swruap (PW28). Sh Susamal Das (PW12) and Sh T. Brahmananda Rao (PW13) on start of their examination in chief were dropped as prosecution witnesses by Ld. PP for CBI vide separate statements on 14/02/2013.
STATEMENT OF ACCUSED
18. Thereafter A1 was examined under Section 313 Cr.P.C. All incriminating material in evidence was put to the accused. A1 pleaded innocence and false implication. A1 further stated that it is false and fabricated case by the investigating agency after having failed to recover RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 9/83 CBI vs Ram Prakash any incriminating evidence in about searches of nine premises at different places including places of his relatives in pursuance to FIR in question. A1 also stated that the circumstances surrounding the recording of statement under Section 161 Cr.P.C of V. Prakash Babu point out that the statement was obtained under torture and threats in the night of 13/08/2010 when he was taken to CBI office after search of his residence. A1 stated that no incriminating evidence in relation to any matter was recovered from the residence of V. Prakash Babu; V. Prakash Babu was not examined in relation to the matters in the FIR; statement of V. Prakash Babu in which he falsely disclosed about nine different cases in which he admitted his role limited only to collection of amount at his (A1) instance was obtained under torture and threats of arrest. A1 also stated that no separate FIR was registered and no report to the competent court was made by the IO to falsely implicate him(A1); no permission under Section 6A of Delhi Special Police Establishment Act was taken at any stage; no preliminary inquiry was conducted to ascertain the facts and circumstances. A1 also stated that the statement of V. Prakash Babu under Section 161 Cr.P.C was relied and he was forwarded to the Metropolitan Magistrate for recording his statement as a witness whereas the facts disclosed by him in his statement under Section 161 Cr.P.C put him in a position of an accused. A1 also stated that V. Prakash Babu was made an approver by moving an application before the competent court on the basis of his statement under Section 164 Cr.P.C recorded as a witness under oath; the IO was not competent as per CVC RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 10/83 CBI vs Ram Prakash instructions to move any application for making a government officer as an approver for immunity from prosecution as such power was to be exercised by the CVO in discussion with the disciplinary authority on recommendation of the investigating agency on merits of the case; pardon was obtained illegally. A1 also stated that the two other approvers S. Thirupati Rao and M. Prasad Rao were also granted pardon on the basis of statement under Section 164 Cr.P.C given as a witness and the relevance or merit of the case was not taken as critarian to recommend their case for tender pardon. A1 also stated that he was never made aware that any investigation in this case was being conducted against him and he came to know of the case on filing of chargesheet. A1 also stated that in view of the above, the case was created out of fabricated evidence and on the basis of conflicting statements of approvers. A1 also stated that only three approvers who were under threat of arrest and withdrawal of pardon have falsely deposed against him; no other witness had deposed anything incriminating against him. A1 also stated that through out the investigation, there had been miscarriage of justice; the investigation had been delayed deliberately to avoid sanction under Section 19 from the sanctioning authority; the time limits prescribed in the CBI Manual were deliberately flouted.
DEFENCE EVIDENCE
19. A1 entered into his defence and examined Sh Om Parkash RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 11/83 CBI vs Ram Prakash Kumar as DW1; Sh T. Naga Mahesh as DW2; Sh Pratap Singh Nanda as DW3; Sh Tulsi Dass as DW4; Sh Jacob P.S as DW5; Sh Ashish Kumar as DW6 and Sh Nakul Singh Yadav as DW7.
20. DW1, Section Officer in Central Board of Excise and Customs (CBEC), Department of Revenue, North Block, New Delhi proved (1) copy of order dated 17/04/2002, Ex DW1/A in terms of which A1 was posted as Commissioner (Appeals), Jaipur on his promotion; (2) copy of order dated 24/12/2009, Ex DW1/B in terms of which A1 was promoted to be Grade of Chief Commissioner. DW1 also brought the Immovable Property Returns (IPR) file of A1. DW1 deposed that as per copy of the IPRs of A1 in respect of immovable property as on 01/01/2005; as on 01/01/2006 and as on 01/01/2010, a three sided shed on plot of size 35 Marlas, original cost Rs 98,000/ is stated to be in the name of wife of A1 (name of wife of A1 not mentioned there) and the annual income of the said property is stated to be Rs 60,000/ (to wife).
21. As per DW2, Inspector of Central Excise in office at Office of Commissioner of Customs and Central Excise, HyderabadIV, Commissionerate, Hyderabad, Andhra Pradesh, as per record (1) 373 total number of units were audited during the period of year 200708 in HyderabadIV Commissionerate; (2) 397 total number of units were audited during the period of year 200809 in HyderabadIV Commissionerate, in terms of the copies of documents annexed with RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 12/83 CBI vs Ram Prakash letter dated 06/08/2013 of Additional Commissioner Sh R.S Maheswari, all collectively Ex DW2/A (colly).
22. DW3, Officer in Punjab National Bank, Defence Colony Branch, Jalandhar, Punjab proved the copy of the statement of account no. 1549000100134219 of Sh. Avnish Verma, Ex DW3/A in PNB, Defence Colony, Jalandhar for the period from 01/01/2009 to 30/06/2009.
23. DW4, Superintendent in Office of the Commissioner of Central Excise, North Block, Department of Revenue, CX6 Section, Room No. 274, New Delhi proved copy of Circular no. 855/13/2007CX dated 11.09.2007 bearing F No. 224/37/2005CX6, Ex DW4/A of Ministry of Finance, Department of Revenue, Government of India containing modification of abstract of XT1 Diary with format of XT1 Diary.
24. DW5, Assistant in Central Vigilance Commission having office at Satarkta Bhawan, GPO Complex, INA, New Delhi brought on record and proved latest Vigilance Manual VolumeI of Central Vigilance Commission (CVC), 6th Edition2004, Ex. DW 5/A and stated it to be authentic.
25. DW6, Inspector in office of the Deputy/Assistant RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 13/83 CBI vs Ram Prakash Commissioner of Central Excise, Customs & Service Tax, Kurnool, Andhra Pradesh proved on record as Ex DW6/A (colly), the copies of leave applications of Sh. V. Prakash Babu (PW1), Superintendent of Central Excise during the period 13.08.2010 to 14.07.2011 and the sanctions on such applications.
26. As per DW7, Sub Inspector in CBI ACB Hyderabad, in the visitor register brought by him, maintained for regulating the entry of visitors i.e., witnesses, accused of the period from 21/05/2008 till date in the office of CBI ACB Hyderabad, there was no entry of any visitor i.e., witness/accused in the period from 13/08/2010 to 25/08/2010 as after 07/07/2010 there was no entry of any visitor before 08/12/2010.
ARGUMENTS
27. I have heard the arguments of Sh Anil Tanwar, Ld. Public Prosecutor for CBI; Sh Pawan Kumar, Ld. Defence Counsel for A1; A1 and have perused the record including the evidence led and given my thoughts to the rival contentions put forth.
28. Ld. PP for CBI had argued that the approver witnesses PW1, PW2 and PW3 have corroborated in material particulars the demand of bribe sum by A1; acceptance of bribe sum by A1 through PW1 from MEIL, part of which sum was deposited by PW1 under directions of A1 in the account of Shilpi Babbar, relative of A1 in the bank; even GEQD RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 14/83 CBI vs Ram Prakash opined the writings on the deposit slips of sums in the account of Shipli Babbar as aforesaid to be in the writings of A1. Also was argued that file Ex PW1/A (colly) (D1) reflected of accused having dealt with the service tax aspect of MEIL; while being posted as Commissioner in the Commissionerate Hyderabad, under the threat to seize the documents and attach the bank account of MEIL, such bribe was obtained by A1 through PW1 from MEIL and thus A1 abused his position as a public servant and it sufficed to raise presumption under section 20 of the Prevention of Corruption Act, 1988 accordingly. It was also argued that in the evidence on record there are no material contradictions going to the root of the matter and the minor contradictions crept in due to passage of time, lapse in memory of witnesses, etc., which cannot be made basis to discard the evidence of the approver witnesses and the prosecution has proved its case beyond reasonable doubt against A1 for the offences charged. Ld. PP for CBI has prayed for conviction of A1 for the offences charged. Ld. PP for CBI relied upon the following precedents:
1. Mohinder Lal Bagai vs The Delhi Administration, 1970 Cri.L.J 793 (DHC);
2. State vs Mehta Rasiklal Baldevdas, 1954 Cri.L.J 688 (Saurashtra);
3. Chaturdas Bhagwandas Patel vs The State of Gujarat, AIR 1976 SC 1497;
4. Dalpat Singh and Anr vs State of Rajasthan, MANU/SC/0045/1968 & AIR 1969 SC 17;
5. Kishan Narain vs State of Maharashtra, AIR 1973 SC 2751;
6. Assistant Commissioner, AssessmentII, Bangalore and others vs M/s Velliappa Textiles Ltd & Ors, AIR 2004 SC 86 and
7. Rabi Das and Ors vs State, 1976 Cri.L.J. 2004 (Orissa High Court).
RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 15/83 CBI vs Ram Prakash
29. Ld. Defence Counsel argued that evidence of one approver cannot be corroborated by another approver; there is no other independent evidence, oral or documentary to corroborate the version of any of the approvers; tainted evidence of approvers are embodied with material contradictions, severe infirmities and inherent improbabilities which go to the root of the matter to check and shake the basic version and core of the prosecution case; it is not proved by any evidence that money deposited by PW1 on directions of A1 in the account of Shilpi Babbar had any nexus with the alleged bribe sum obtained by PW1 on asking of A1 from MEIL; this is a case of unfair investigation where the premier investigating agency did not resort and comply with the mandate laid in The Code of Criminal Procedure, own CBI Manual as well as Vigilance Manual of Central Vigilance Commission; PW1 is alleged to have collected sums of bribe on directions of A1 from nine parties amongst which three parties were found to be not in existence and five other such parties did not support an iota of such allegation of PW1 against A1, which in itself was sufficient to infer untrustworthiness and lack of credibility of version of PW1 which remained uncorroborated from any independent and untainted source, direct or circumstantial; this is a case of malicious prosecution of accused on the part of the premier investigating agency; Ex DW6/A (colly) brought and proved on record by DW6 per se demonstrates of PW1 having attended investigation of CBI at Hyderabad from 13/08/2010 to 24/08/2010, not admitted by PW1 in deposition and categorically denied by IO PW27, depicting falsity in RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 16/83 CBI vs Ram Prakash their deposition; PW1 alleging of no XT1 Diary being maintained in the course of investigation conducted by them in the course of their duties while by version of DW4 on record falsity in testimony of PW1 on this count has been proved on record; the approvers PW1 and PW3, both tell different tales in respect of place and manner of delivery of the bribe sum of Rs 5 lakhs by PW3 to PW1 for A1, making their version per se unbelievable and untrustworthy; to synchronize with the version of PW2 and PW3, PW1 was not completely examined by the prosecution on his first appearance in court for deposition and after his part examinationin chief, adjournment was sought by prosecution on the premise of non receipt of the documents sent for forensic opinion and the report of the forensic expert; two cell phones seized as per PW1, were with held and neither these cell phones were produced nor their call detail records were filed with chargesheet, which called for taking adverse inference against prosecution; no permission of CVO/CVC/Head of Department of PW1 was obtained by investigating agency for making PW1 approver; the approvers had deposed under fear of Section 308 of Code of Criminal Procedure and their uncorroborated version on all counts merited rejection; books of account of MEIL were neither filed on record nor proved nor it was shown nor proved as to what was the source of the alleged bribe of Rs 5 lakhs or what was the manner of fudging of accounts, regarding which the Managing Director Krishna Reddy of MEIL could have spilled the beans but was dropped as a prosecution witness and not examined, which aspect called for for taking adverse RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 17/83 CBI vs Ram Prakash inference against prosecution; no attempt was made by investigating officer to collect any evidence corroborative to versions of the approvers. Ld. Counsel for A1 has prayed for acquittal of A1 for the offences charged stating that the prosecution has failed to prove its case against A1 beyond reasonable doubt.
30. Ld. Counsel for A1 has relied upon the following precedents:
1. Dr. R.R. Kishore vs C.B.I., MANU/DE/9433/2006;
2. H.M. Caire vs Union of India (UOI) and Ors., MANU/GH/0766/2006;
3. Madan Mohan Lal vs State of Punjab, MANU/SC/0144/1970;
4. P. Sirajuddin etc. vs State of Madras, etc., MANU/SC/0158/1970;
5. Bhiva Doulu Patil vs State of Maharashtra, MANU/SC/0141/1962;
6. Chonampara Chellappan & Ors. vs State of Kerala, MANU/SC/0094/ 1979;
7. Balwant Kaur vs Union Territory of Chandigarh, MANU/SC/0198/1987;
8. A.P Kuttan Panicker and Ors. vs State of Kerala, MANU/KE/0135/1962;
9. Bachcha Babu and Ors. vs Emperor, MANU/UP/0539/1934;
10. Niranjan Singh vs State of Punjab, MANU/SC/0871/1996;
11. Ashok Kumar Aggarwal vs Central Bureau of Investigation and Anr., MANU/DE/2302/2007;
12. Bangaru Laxman vs State (through CBI) and Anr., MANU/SC/1409/2011;
13. Sarwan Singh vs The State of Punjab, MANU/SC/0038/1957;
14. Dagdu and Ors. vs State of Maharashtra, MANU/SC/0086/1977;
15. Rampal Pithwa Rahidas and Ors. vs State of Maharashtra, MANU/SC/0979/1994;
16. Yamuna Singh and Others etc. vs State of Bihar, MANU/SC/0731/1996;
17. Narayan Chetanram Chaudhary & Anr. vs State of Maharashtra, MANU/SC/0547/2000;
18. P.V Narasimha Rao vs State through CBI, 97 (2002) DLT 452 DHC;
19. Naresh Kumar Alias Pappu vs State of H.P, MANU/HP/0267/2005;
20. State of U.P. vs Harendra & Ors., MANU/UP/1714/1996;
21. State of H.P vs Lal Chand Aggarwal and Ors., MANU/HP/0516/2011;
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22. State of Rajasthan and etc. vs Ram Niwas and Anr., MANU/RH/0237/2006;
23. Joga Gola vs State of Gujarat, MANU/SC/0136/1980;
24. Banwari Lal vs State of Himachal Pradesh, MANU/HP/0026/2003;
25. Pushpangadhan vs State of Kerala & Anr., MANU/KE/0610/2004;
26. Raghuni Singh @ Raghunandan Singh and Ors. vs The State of Bihar, MANU/BH/0013/2003;
27. State of Orissa vs Bishnu Charan Muduli, MANU/OR/0309/1985;
28. Haroon Haji Abdulla vs State of Maharashtra, MANU/SC/0060/1967;
29. Thummala Lovaraju vs The State of A.P, MANU/AP/0095/2009;
30. State of Punjab vs Sucha Singh and Ors., MANU/SC/0180/1973;
31. Paramjit Singh @ Bittoo vs State, MANU/DE/2020/2010;
32. Hari Charan Kurmi and Jogia Hajam vs State of Bihar, decided on 03/02/1964 by Apex Court;
33. State of Uttar Pradesh vs Singhara Singh & Ors., MANU/SC/0082/1963;
34. Rabindra Kumar Pal @ Dara Singh vs Republic of India, MANU/SC/0062/2011;
35. Sunil Kumar Sharma vs State (CBI), MANU/DE/7456/2007;
36. Suraj Mal vs State (Delhi Administration), MANU/SC/0268/1979;
37. C.M Girish Babu vs CBI, Cochin, MANU/SC/0274/2009;
38. T. Subramanian vs State of Tamil Nadu, MANU/SC/8010/2006;
39. Dalpat Singh and Anr. vs State of Rajasthan, MANU/SC/0045/1968;
40. Avadh Bihari Amrutlal vs State of Gujarat, MANU/GJ/0447/2000;
41. Union of India (UOI) thr. Inspector, CBI vs Purnandu Biswas, MANU/SC/1096/2005;
42. T.T Antony vs State of Kerala & Ors., MANU/SC/0365/2001;
APPRECIATION OF EVIDENCE
31. PW17 deposed that he worked as Additional Commissioner in Commissinerate IV Hyderabad from July 2008 till July 2012 and A1 was Commissioner in his office till around May/June 2009 from where A1 was transferred to the post of Commissioner Appeals, Hyderabad.
RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 19/83 CBI vs Ram Prakash As per PW17, hierarchy in CommissionerateIV Hyderabad in descending order from Commissioner level; Commissioner was the Head of the office and was assisted by the two Additional Commissioners; the Additional Commissioners were assisted by Deputy Commissioners; Deputy/Assistant Commissioners were assisted by Superintendents and Inspectors and then Ministerial Rank Officials; all sections of Commissionerates were headed by Section Head Superintendent; in turn all sections were distributed amongst the Assistant/Deputy Commissioners and the line up command vertically went up till the Commissioner.
32. PW17 further deposed that the audit of the Assesses of service tax was conducted by dual mechanism in CommissionerateIV; the external audit was conducted by CAG randomly as per their audit schedule; the internal audit was conducted by internal audit section schedule; the internal audit was conducted by internal audit section of CommissionerateIV Hyderabad. As per PW17, to carry out the audit there was a manual published by the Department of the Revenue which was called as Manual of EA2000; all the audit and other related activities were conducted in accordance with the Provisions of EA2000 manual; as per that manual, Audit plan was worked out and units (Assesses) were selected and for such selected units, the intimation was sent to all such units (assesses) in the form of AnnexureR well in advance informing the assesses to keep all their records available for RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 20/83 CBI vs Ram Prakash audit. As per PW17, on scheduled dates, the audit team visited the assesses premises for audit purposes and they scrutinized all their internal records of the assesses, prepared the work sheets and other supporting documents and draft audit report (DAR) was prepared by the concerned audit team. As per PW17, once in a month, Monthly Monitoring Committee (MMC) of HyderabadIV Commissionerate meets wherein all the draft audit reports were presented by the concerned audit team, discussed in detail; if then MMC approved the DAR then it becomes an Audit Report (AR), which was issued to all the concerned officers and offices for information and necessary action on the audit report; in the case when MMC did not approve the DAR, then MMC also gave the directions to carry out further scrutiny or examination of the law, notifications, rules etc. and accordingly such paras were deferred for carrying out such further working and to be submitted in the next meeting of the MMC and accordingly process went on. As per PW17, the units were selected as per the norms in EA2000 Manual; when the audit report was approved/finalized or as may be directed by MMC, if an audit objection required further investigation which required operations like search, seizure, summoning the witness or documents, records then all such paras were referred to the independent section of the Commissionerate called the Anti Evasion Section for carrying out those further investigation for which the concerned files were routed through vertical line of command and after Commissioner's approval it went to the Anti Evasion Section vertically downward in the relevant section for RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 21/83 CBI vs Ram Prakash further necessary action. As per PW17, Cenvat Credit was the abbreviated name of Central Value Added Tax where under unit or assessee got the credit of specified duties paid at the input and input services and used such credit for discharging his duty liabilities; the scheme of the Cenvat Credit was embodied in the Central Excise Act 1944 and the rules applicable.
33. As per PW17, he handled the internal audit of MEIL processed through office file, copy Ex PW17/A (colly) (D4) which contained audit report from page 248 to 251; the liability of MEIL was mentioned in aforesaid audit report and it was referred to Anti Evasion Section for further investigation. As per PW17, a draft show cause notice, copy bearing year 2010 without date and month, on pages 269 to 282 of Ex. PW17/A (colly) (D4) was kept in the file for reference purpose and was originated through headquarter Anti Evasion Section file no. 82/2008.
34. PW4 deposed that while working as Inspector of Central Excise in anti evasion wing of HyderabadIV Commissionerate in tenure of A1 between 200809 when A1 was posted as Commissioner, he (PW4) had dealt with the file Ex. PW1/A (colly) (D3) and prepared the notes which were at page no. NFI to NFIV at points X4 to X6, Y & Z ; Assistant Commissioner of Audit and Range Officer gave a note with regard to some discrepancies in the work contract of MEIL; signature of RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 22/83 CBI vs Ram Prakash A1 were at point A1 (on date 11/05/2009) and A2 (on date 12/05/2009) on pages V & VI of Ex. PW1/A (colly).
35. PW5, Manager in Punjab National Bank deposed that he had worked in bank street branch of PNB, Hyderabad from May 2009 till August 2012 and he had handed over documents detailed in seizure memo Ex. PW5/A (D10) dated 24/08/2010 to IO of CBI. PW5 also deposed that Credit Slips Ex PW5/C1 to Ex PW5/C8 (D12 to D14, D 17 to D21) were of his bank and bearing stamp of his Bank Street Branch of PNB, Hyderabad and initials of Smt N.C Wani, Officer of said branch. As per PW5, Credit Deposit Slips Ex. PW5/C9 and PW5/C 10 ( D15 and D16) were of his bank bearing bank stamp and initial of Smt N.C. Wani, Officer of the bank branch. As per PW5, vide these deposit slips the cash was deposited in the bank branch and was accepted by the Cashier of the bank branch of PW5 against receipts and stamps along with date. In his statement under Section 313 Cr.P.C, A1 admitted of said documents stating them to be matter of record.
36. PW6, the then Manager of KVM College Branch PNB at Jalandhar proved the statement of account, Ex PW6/B (part of D11) of account number 3920000101102018 in the name of Shilpi Babbar in his aforesaid bank branch for the period from 05/12/06 to 14/08/10 accompanied by certificate under the Bankers Book of Evidence Act which he had submitted to IO of CBI with forwarding letter Ex PW6/A RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 23/83 CBI vs Ram Prakash (part of D11) dated 14/08/10. PW6 also deposed that statement of account Ex. PW 6/B reflected some cash transferred from the PNB, Bank Street Branch, Hyderabad; these cash transfers had been highlighted; most of the transactions in the said account were from January 2009 onwards.
37. PW7 deposed that he was the Branch Manager of SBI, Chirag Ali Lane at Hyderabad from October 2010 to October 2011 and document, Ex. PW7/A (D23/II), the certified statement of account no. 30053049644 of A1 for the period 01/05/2007 to 21/08/2010 was given by his (PW7) predecessor Sh. D. Sriniwas, the then Branch Manager to IO of CBI.
38. PW8 deposed that while posted as Superintendent in Audit Section, CommissionerateIV of Central Excise and Service Tax at Hyderabad from July 2008 to 2009, he (PW8) along with his colleague Sh. R. Sai Surya Prasad, the then Superintendent, Central Excise, conducted audit of MEIL formally known as Megha Engineering Enterprises; during the said conduct of audit, A1 was the Commissioner of CommessionerateIV and he (PW8) had also dealt with the file Ex. PW17/A (colly) (D4) which also contains the audit report no. 31/2009 2010. PW8 also deposed that Ex PW17/A (colly) (D4) inter alia contained the writings of Mr. R. Sai Surya Prasad, the then Superintendent in notings Ex. PW8/A and Ex PW8/B. As per PW8, RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 24/83 CBI vs Ram Prakash noting at pageIV of D4 Ex. PW17/A (colly) bears the signature of Sh M.R. Reddy, the then Inspector GradeI; page79 of said Ex. PW17/A (colly) bears the signature of Sh. P.S.B. Reddy. PW8 deposed that pages nos. 183,184 and 185 of Ex. PW17/A (colly) (D4) were prepared by him (PW8). In his statement under Section 313 Cr.P.C A1 submitted that the aforesaid audit was conducted in last week of May 2009 and the aforesaid file Ex PW17/A (D4) was never put up before him at any stage either prior to audit or after audit and he as well had not presided over the MMC relating to this audit while the audit of the unit was part of the schedule of audit of large number of other units as per frequency and norms prescribed under the Audit Manual.
39. PW11 deposed that when he was posted as Superintendent, Central Excise at CommissionerateIV Hyderabad during June 2008 till June 2010, A1 was also there as Commissioner during his (PW11) tenure for one year and during the said period, PW11 was posted in Anti Evasion Section of aforesaid Commissionerate. As per PW11, the Anti Evasion Wing gathers intelligence against Assessees, who evaded tax and registered cases against them; the Anti Evasion also undertake investigation on the information provided by other wings regarding non payment or evasion of taxes. PW11 also deposed that the service tax was required to be paid on monthly basis and the service tax returns were required to be filed once in half year; Service Tax Assessee was audited by the audit wing; the irregularities or audit objections were RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 25/83 CBI vs Ram Prakash prepared monthly and the same used to be put in monthly monitoring committee meeting under the chairmanship of A1 i.e. Commissioner; if the audit objection was approved, then it would become audit report and the same was referred to the concerned group looking after the service tax matters for taking further action depending upon the objections. As per PW22 and PW17 Monthly Monitoring Committee (MMC) was headed by Commissioner and the Members of it were Additional Commissioner, Assistant Commissioner and Superintendents (Range) and Superintendents (Audit) and other officers of headquarter; depending upon the amounts involved, the show cause notices use to be issued by different authorities like Assistant Commissioner, Deputy Commissioner, Joint Commissioner, Additional Commissioner and Commissioner. PW 11 and PW22 deposed that the competent authority to issue show cause notice for service tax upto Rs. 5 lakhs was Assistant/Deputy Commissioner; the competent authority to issue show cause notice for service tax above Rs. 5 lakhs upto Rs 50 lakhs was Joint/Additional Commissioner; the competent authority to issue show cause notice for service tax above Rs 50 lakhs was Commissioner; who were also the adjudicating authority in respect of aforesaid service tax. PW22 further deposed that either Additional Commissioner or Commissioner was the competent authority to order raid on the premises of Assessee and the Central Excise Department follows the Central Excise Act 1944 and rule made there under. As per PW11, 30 days time was given to the Assessee to file reply before the adjudicating authority aforesaid; after receiving RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 26/83 CBI vs Ram Prakash the reply, adjudicating authority passed the order after giving the assessee personal hearing; such order was appealable. PW11 also deposed that Anti Evasion Wing officers used to visit the premises of the assesses, collected records, even conducted raids, effecting seizures of the offending goods, if any; seized records were then scrutinized to verify the information or intelligence received against Assesses; on detection of evasion of duty matter, AE2 was issued registering a case; on completion of the investigation the Anti Evasion Wing will arrive at the figure of the duty evaded; thereafter, aforesaid show cause notices by different adjudicating authorities used to be issued.
40. PW11 also deposed that in NovemberDecember, 2008, evasion of service tax by MEIL was suspected; accordingly to verify the duty evasion aspect, a visit was proposed by PW4 vide noting dated 10/12/2008 at point X6 of Ex. PW1/A (colly) (D3) and it was put up before PW11; after receiving of aforesaid noting, he (PW11) informed his superior and with their approval, he (PW11) along with team headed by Deputy Commissioner Shri Mani visited the factory and office premises of MEIL from where certain documents were recovered which were scrutinized and it was found that Assessees were undertaking the work of laying of long distance pipe line which attract service tax and the Assessee i.e., MEIL did not pay the service tax on said activity; the contract of laying long distance pipe lines was given by Government of Andhra Pradesh to said assessee; during the said raid, the said contract RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 27/83 CBI vs Ram Prakash was going on. As per PW11, PW1 had put up a note, which was at page V in Ex. PW1/A (colly) (D3) to A1 and also bears signatures of A1 (on date 11/05/2009) at point A1 on page V and page VI (on date 12/05/2009) at point A2 and signature of PW1 at point B (on date 12/05/2009); after the note dated 12/05/2009, file, copy Ex PW1/A (colly) (D3) was also put up and the notes dated 16/07/2009, 24/08/2009, 09/09/2009, 14/09/2009, 08/01/2010 and 19/01/2010 bear signatures of PW11 at point C1 to C6 respectively which were from page VII to IX in note sheet part.
41. PW11 further deposed that during the proceeding against MEIL with regard to service tax, he (PW11) examined and recorded the statements of PW3 and MD Sh. P.V. Krishna Reddy of aforesaid company on 11/09/2009 and 19/01/2010 respectively which were Ex. PW1/AZ2 and page 123, 124 respectively of Ex. PW1/A (colly).
42. PW15, the then Superintendent in Commissionerate-IV Hyderabad deposed that he delivered the letter, copy Ex PW15/A dated 21/01/2011 inter alia along with the file, copy Ex PW15/B (colly) (D9) to CBI official and Ex PW15/B (colly) pertained to the audit conducted by Customs and Central Excise in respect of MEIL for the period 2006 to 2008.
43. PW16, the then Superintendent in Audit Section of RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 28/83 CBI vs Ram Prakash HyderabadIV for Commissionerate deposed that he along with another Superintendent Babu Lal Mukherjee and Inspector M. Sriniwas conducted audit of M/s Megha Engineering Enterprises located at Jeedimetla, Hyderabad; the audit report was at page 146 and 147 of Ex. PW16/A (colly). As per PW16, Ex PW16/A (colly) pertained to the aforesaid audit besides containing audit report, the follow up actions for the realization of any dues and also includes the approval in the Monthly Monitoring Conference (MMC). In his statement under Section 313 Cr.P.C, A1 stated that he had not seen the file, copy Ex PW16/A (colly) at any stage, either prior to audit or after audit. As per PW16, while he submitted the verification report in respect of aforesaid audit, A1 was the Commissioner at CommissionerateIV Hyderabad. As per A1, the verification report submitted by PW16 was not put up before him (A1).
44. PW18, the then Superintendent of Central Excise in Audit Section of CommissionerateIV Hyderabad deposed that he had done the audit of MEIL as per the programme schedule approved by Audit Section headquarter in the month of February 2008 for the period July 2006 to February 2008; the audit report of Dr. M. Devaraju, the then Assistant Commissioner which was based on report of PW18 and others was at page 1 to 3 of Ex. PW18/A (colly) (D7), which was the copy of file of audit in respect of MEIL. PW18 further deposed that he identified irregular availment of Cenvat Credit of about Rs. 20 lakhs pertaining to the unit of MEIL and on pointing out of the same, the assessee reversed RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 29/83 CBI vs Ram Prakash the Cenvat Credit by making corresponding debit entry with applicable interest. As per PW18, MEIL was doing the work contract service i.e. laying of pipe from year 2007 till the conduct of audit but it was not paying any service tax for the same under the impression that the firm is exempted for government works and project; this contention of assessee was not accepted by audit officials as there was no specific exemption for payment of service tax for laying of pipes done by assessee for ONGC and other government department.
45. PW19 deposed that he as well as his daughter Ms. Shilpi Babbar were having accounts bearing nos. 3920009300010164 and 3920000101102018 respectively in KMV College Branch of PNB at Jalandhar. As per PW19, A1 was the relative i.e. husband of sister of wife of PW19. As per PW19, neither he nor his daughter had taken any loan from A1. As per PW19, his (PW19) wife had taken sum of Rs 5 lakhs or Rs 6 lakhs in installments from her sister Ms. Rajni Verma, wife of A1 in period between year 2007 to 2009 and wife of PW19 had taken said sums for repayment of loan taken by PW19. As per PW19, he (PW19) took loans from his employer bank on different dates and repaid the aforesaid sum of Rs. 5 lakhs or 6 lakhs and the said sums were given by his (PW19) wife Smt. Poonam Babbar to her sister i.e. Ms. Rajni Verma, wife of A1. As per PW19, he (PW19) had taken loan from his employer bank for personal requirements; in October 2011 the final payment of installment was given as aforesaid.
RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 30/83 CBI vs Ram Prakash
46. PW20, Deputy SP, ACIII, CBI deposed that on instruction, he visited Hyderabad and conducted search at the residential premises of PW1 on the strength of search warrants. PW20 also examined PW1 to PW3 respectively and A1 in the course of investigation during his stay at Hyderabad.
47. PW21, Assistant (Administration) in MEIL deposed that he was posted in Delhi office of said concern and used to receive instructions from head office also including the instructions in July 2009 or few days before from PW3 for a room to be booked in the name of A1 in Sheraton Hotel, Saket and also for providing a cab to A1.
48. PW22, Additional Commissioner, HyderabadIV Commissionerate deposed that in the course of his duties in said Commissionerate, he had dealt with file, copy Ex. PW1/A (D3) and it bears his (PW22) signature at note sheet pages V, VI,VII,VIII,X at point D1 and signature of A1 were at note sheet pages V and VI of aforesaid documents at point A1 (on date 11/05/2009) and A2 (on date 12/05/2009).
49. PW23, the then Superintendent, Selective Audit Section of Central Excise and Customs in HyderabadIV Commissionerate deposed that audit on M/s Megha Enterprises, the manufacturer of valves was RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 31/83 CBI vs Ram Prakash conducted on 18/05/2007, 21/05/2007 to 23/05/2007 and concerning papers i.e. verification papers after conducting of audit were pages 138 to 143 in Ex. PW16/A (colly) (D6); the audit of the M/s Megha Engineering was conducted on the basis of balance sheets of financial years 200405 and 200506.
50. PW25, the then Metropolitan Magistrate-III, Hyderabad deposed that she had recorded the statements Exts. PW1/B, PW2/A and PW3/A respectively on 21/08/2010 of witnesses PW1, PW2 and PW3 respectively under Section 164 of Code of Criminal Procedure which were sent to Special Judge, Patiala House Court, New Delhi vide letter Ex. PW25/A dated 27/08/2010.
RELEVANT LAW
51. The essential ingredients of Section 7 of Prevention of Corruption Act, 1988 are that (i) the person who accepts gratification should be a public servant; (ii) he should have accepted the gratification for himself or for any other person and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person.
52. The essential ingredients of Section 13 (1) (d) of the RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 32/83 CBI vs Ram Prakash Prevention of Corruption Act, 1988 are (i) the person should be a public servant; (ii) he should have used corrupt or illegal means or otherwise abused his position as such public servant and (iii) he should have obtained valuable thing(s) or pecuniary advantage for himself or for any other person without any public interest.
53. In Section 13(1) (d) of the Prevention of Corruption Act, 1988, the word used is 'obtained'. The Apex Court in the case of C.K. Damodaran Nair v Govt. of India [(1997) 9 SCC 477] had the occasion to consider the word 'obtained' used in Section 5 of PC Act, 1947, which is now Section 13(1)(d) of the Act of 1988. It was held in para 12 thus:
"12. The position will, however, be different so far as an offence under Section 5 (1)(d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused `obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Section 5(1)(a) and (b) and not under Section 5(1)(c), (d) or (e) of the Act. `Obtain' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1) (d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be,established by proof of either `acceptance' or `obtainment'"
54. The case of the prosecution hinges on the testimonies of the three approvers i.e., PW1, PW2 and PW3 while there is no other ocular RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 33/83 CBI vs Ram Prakash version of demand or acceptance of bribe from any official of MEIL on part of A1 either himself or through any other person, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person.
55. Section 133 of Indian Evidence Act reads as under:
"133. Accomplice.An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice."
56. Section 114 of Indian Evidence Act and its illustration (b) read as under:
"114. Court may presume existence of certain facts.The Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume ..................
(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;
.................."
57. Conjoint analysis of the precedents relied by the defence as well by prosecution including of Rabi Das (Supra), elicited above culls out the law laid, which even otherwise is by catena of decisions of Apex RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 34/83 CBI vs Ram Prakash Court that evidentiary value of evidence of the approver(s) is as follows.
(A) The combined effect of Sections 133 and 114 (b) of the Evidence Act is that (a) an accomplice is competent to give evidence; (b) though the conviction of an accused on the sole testimony of an accomplice cannot be held to be illegal, yet the Courts, as a matter of practice, will not accept the evidence of such a witness without corroboration of his evidence in material particulars qua each of the accused.
(B) Every witness who is competent to give evidence is not necessarily a reliable witness. Since an approver is alleged to be an accomplice in the commission of the crime itself or 'privy' to the offence, the appreciation of his evidence must satisfy a double test:
(a) His evidence must show that he is a reliable witness. This does not refer to his antecedents, but to the character of the evidence given by him, that is to say, whether it is inherently incredible discrepant or self contradicting, apart from any question of what the other witnesses say. If his evidence fails to satisfy this test, there is an end of the matter, resulting in the rejection of his evidence. But if it passes this test of inherent credibility and consistency, it must still pass the test of corroboration.
The reliability of the approver's evidence against a particular RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 35/83 CBI vs Ram Prakash accused may be shaken if the approver's account against another accused is wholly discrepant.
Nor does it mean that before reliance can be placed upon the evidence of an approver, it must appear that he is a penitent witness. The section itself shows that the motivating factor for an approver to turn is the hope of pardon and not any noble sentiment like contrition at the evil in which he has participated. Whether the evidence of the approver will be accepted or not will have to be determined by applying the usual tests, such as the probability of the truth of what he has deposed, to the circumstances in which he has come to give evidence, whether he has made a full and complete disclosure, whether his evidence is merely selfexculpatory and so on. The Court has, in addition, to ascertain whether his evidence has been corroborated in material particulars.
The reliability test, does not mean that the evidence of the approver has to be considered in watertight compartments, it must be considered as a whole, along with the other evidence led by way of corroboration.
(b) after the approver's evidence passes the test of reliability, which is a test common to all witnesses, it must pass the test RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 36/83 CBI vs Ram Prakash of corroboration, which is special to the approver's evidence because it is 'tainted' evidence, coming from an accomplice to the crime. The nature of corroboration required will no doubt vary according to circumstances, but it means that the approverwitness's account must be corroborated by the evidence of the other witnesses or circumstantial evidence, on the following points:
(i) It must confirm, in some material particulars that the offence had been committed.
(ii) It must also be confirmed that the accused committed the offence. This means that it is not enough that a piece of evidence tends to confirm the truth of a part testimony of the approver; it must confirm that part of the testimony which suggests that the crime was committed by the accused.
For instance, if the approver says that the accused and he stole the sheep and he put the skins in a certain place, the discovery of the skins in that place would not corroborate the evidence of the approver as against the accused. But if the skins were found in the house of the accused, this would corroborate, because it would tend to confirm the statement that accused had some hand in the theft.
(iii) Such corroboration may come from circumstantial evidence.
(iv) The circumstantial evidence need not be to the effect RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 37/83 CBI vs Ram Prakash that the accused committed the crime, but would suffice if it shows that the accused was connected with the crime, e.g., in the case of offences committed in secret, where direct evidence may not be available.
(v) The conduct of the accused himself, as against whom corroboration is required, may constitute circumstantial corroboration of the approver's evidence.
(vi) When the evidence of an approver is sought to be corroborated by the evidence of other witnesses such witnesses must be independent of sources which are likely to be tainted, so that the evidence of one approver cannot be corroborated by the evidence of another accomplice.
(vii) But a previous statement of the approver himself may afford corroboration of his testimony under the present section, if it satisfies the conditions laid down in s.157, Evidence Act.
(viii) The nature of extent of corroborations required would vary according to the circumstance in which the offence was committed and other relevant circumstances. It may even be dispensed with where there are special circumstances. Where, however, corroborative evidence is produced, it has also to be weighed, with other evidence, even though it is legally admissible.
RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 38/83 CBI vs Ram Prakash (C) Where the approver's evidence is corroborated by the other evidence, on material points, conviction may be based on the sole testimony of the approver.
58. The core question that needs to be seen is as to whether there is sufficient legal evidence on record for the prosecution to prove its case beyond reasonable doubt against A1 for the offences under Section 7 and/or Section 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
59. On 11/09/2012, PW1, Approver was first examined in chief at length, but partly and his further examination was deferred on the request of Ld. Public Prosecutor for CBI who submitted that CFSL report with documents deposited in CFSL for expert opinion in December 2011 was yet to be received. Then PW1, Superintendent in Hyderabad CommissionerateIV from 2006 to June 2010 deposed that his tenure in Anti Evasion Section there was from August 2006 to May/June 2009 and he had worked for about two years under A1, the then Commissioner Central Excise Hyderabad in aforesaid Commissionerate, who was there from 2007 to May/June 2009.
60. PW1 deposed on 11/09/2012 that while he was working as Superintendent Anti Evasion/PRO for Hyderabad IV Commissionerate, under control of A1, A1 used to abuse him (PW1) in his chamber RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 39/83 CBI vs Ram Prakash without any reason and also caused him lot of humiliation, shouted upon him and threatened to transfer him from the place and also used to pressurize him to call the parties with whom the investigations of Central Excise Department were pending. PW1 also deposed that due to the pressure of A1, he (PW1) used to call the parties to the office, which parties used to go inside chamber of A1 and he (PW1) was directed to remain outside; when the party used to come out from the chamber of A 1, A1 used to tell him (PW1) that party will give amount to him (PW1) which amount he (PW1) used to collect at the instance of A1 and the amount of money so collected was given by him (PW1) to A1 either immediately or in the same evening. PW1 also deposed that A1 used to give part amount from the amounts so collected from the parties to him (PW1) to deposit the same in different banks in different accounts of persons including Manish Verma and his friends, Shilpi Babbar, Neha Babbar, Dhanraj or Dheeraj, Vimla Devi / Kamla Devi, employees of hotel of A1 in Jalandhar, one receptionist namely Kaur and friend's of son of sister of A1's wife. PW1 also deposed that A1 used to give him (PW1) the slip mentioning therein the name of account holder, account number where the money, so collected, he (PW1) had to deposit; this slip was used to be returned back by him (PW1) to A1 after depositing of such money; the said receipts used to be destroyed by A1 in his (PW1) presence. PW1 also deposed that under the instruction of A1, he (PW1) had collected sums of money from various parties including Rs. 1 lakh from Sarvottam Ispat; Rs. 2 lakhs from Jayraj Ispat; Rs. 50,000/ from RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 40/83 CBI vs Ram Prakash Pragathi Polymers; Rs. 50,000/ from Jacotia Plastics; Rs. 60,000/ from Venkat Reddy; Rs. 5 lakhs from Megha Engineering; Rs. 1 lakh from Virchow Labs; Rs. 1 lakh from Sripathi/Sathpathi Chemicals/ Laboratories. All these aforesaid facts were admittedly not told by PW1 to the association of Superintendents in his office/Hyderabad in which he was the member since begining nor he brought these facts into the notice of any office bearer of the said association nor he had complained about it to the Chief Commissioner or the Board of his such alleged maltreatment by A1 or A1 having forced him (PW1) to indulge into such corrupt practices. As per PW1, Rs. 2 lakhs were collected by A1 from Ravi Foods. PW1 further deposed that A1 also gave Rs. 2 lakhs to him (PW1) in the year 2009 or 2010 for construction of house of S. Lakshmi, Contingent Employee of ADG Audit and out of said sum he (PW1) used to pay the mason charges etc., while entire aforesaid sum of Rs 2 lakhs was spent for construction of said house of said S. Lakshmi. PW1 deposed that he also used to take A1 for dinner regularly i.e. 23 times in a week to various hotels in Banjara Hills, Bashir Bagh and Punja Gutta etc. In his examination in chief, Investigating Officer PW27, the then Inspector and now Dy. SP CBI S.K Sharma did not elicit much about the investigation in respect of eight concerns excepting Megha Engineering from whom PW1 alleged to have obtained bribe on the asking of A1. In the course of his cross examination, PW27 elicited initially that he recorded statements of one representative each of said eight concerns excepting Megha Engineering and records of said RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 41/83 CBI vs Ram Prakash concerns were also requisioned from office of Chief Commissioner, Custom and Central Excise, HyderabadIV. Further PW27 elicited in his cross examination that eight concerns excepting Megha Engineering did not cooperate in the investigation and did not disclose the demand and acceptance of bribe amount by/for A1. Also PW27 elicited in his cross examination that officials of M/s Sarvotam Ispat, Jayraj Ispat, M/s Pragathi Polymers, M/s Jakhotia Plastics, M/s Ravi Food Private Ltd did not support about any payment of bribe to/for A1 despite enquiries made from them by PW27 on 25/01/2011. Despite that, neither premises of M/s Sarvotam Ispat, Jayraj Ispat, M/s Pragathi Polymers, M/s Jakhotia Plastics, M/s Ravi Food Private Ltd were raided by PW27 nor any search or seizure was conducted there from to unearth any evidence towards the allegation of PW1 qua payment of bribe by said concerns to PW1 for A
1. From these five concerns no incriminating evidence against A1 could be gathered nor any of their owners/employees were arrested nor any police remand of theirs were sought nor any action was taken against any of the owners/employees of these five concerns. In the course of his cross examination, PW27 further elicited that the identity of Venkat Reddy, Virchow Labs and Sripathi/Sathpathi Chemicals/Laboratories could not be established during the course of investigation nor these could be located while from the office of A1, PW27 could not find any assessee of such name or any higher officer of any assessee namely i.e., Venkat Reddy, Virchow Labs and Sripathi/Sathpathi Chemicals/Laboratories. Entire testimony of Investigating Officer PW27 is shorn of any details RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 42/83 CBI vs Ram Prakash qua investigation conducted in respect of any construction of said house of said S. Lakshmi, Contingent Employee of ADG Audit or any sum spent on such construction by PW1 out of any alleged sum paid by A1 to PW1. Even PW27 did not whisper of any investigation conducted or inquiries made from any employee/owner of any hotel/restaurant where PW1 allegedly took A1 for meals.
61. After examination of approver PW2 on 12/09/2012 and approver PW3 on 13/09/2012 and 14/09/2012, when PW1 was further examined on 19/11/2012 and that day after PW1 identified his writings in deposit slips Ex PW5/C1 to Ex PW5/C10 and stated of having given his specimen writings Ex PW1/C (colly) to IO, thereafter PW1 deposed that in January 2009, he (PW1) visited the office premises of MEIL at Balanagar, Hyderabad on the directions of A1 to meet Prasad Rao to communicate the directions given by A1, which directions were that A1 had asked for bribe amount of Rs. 5 lakhs to not to seize the records and bank accounts of MEIL. PW1 in his examination on 11/09/2012 stated of having called the parties to his office, which parties used to go inside chamber of A1 and he (PW1) was directed to remain outside; when the party used to come out from the chamber of A1, A1 used to tell him (PW1) that party will give amount to him (PW1) which amount he (PW1) used to collect at the instance of A1 and the amount of money so collected was given by him (PW1) to A1 either immediately or in the same evening. On 11/09/2012, PW1 did not even whisper of having gone RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 43/83 CBI vs Ram Prakash to the office of MEIL in December 2008 or January 2009 at any moment of time to convey any demand of A1 of sum of Rs 5 lakhs of bribe to not to seize the records and bank accounts of MEIL. Even PW1 was confronted with his previous statements under Section 161 Cr.P.C Ex PW1/DA, Ex PW1/DB, Ex PW1/DC and his statement under Section 164 Cr.P.C Ex PW1/B given in Hyderabad on 21/08/2010 before PW 25 Ld. MM where he did not mention these aforesaid facts and was confronted and contradicted with his said statements. In his entire examination in chief, PW1 did not say specifically how the said bribe sum of Rs 5 lakhs was obtained by him from any official of MEIL. Per se, on 19/11/2012 PW1 narrated of his such visit to office premises of MEIL and convey of demand of A1 of sum of Rs 5 lakhs of bribe to not to seize the records and bank accounts of MEIL, so as to synchronize his testimony with the testimonies of approvers PW2 and PW3 to fine tune it to escape the ordeal of the Damocles' sword of Section 308 of Code of Criminal Procedure looming large on his head so as to confine to the prosecution case and come up with a cribbed and cabined testimony and it cannot be termed as a simple omission on the part of PW1 for failing on 11/09/2012 to narrate the entire incident of his visit in January 2009 to office of MEIL, which facts also find no mention in the previous statements Ex PW1/DA, Ex PW1/DB, Ex PW1/DC and Ex PW1/B of PW1.
62. As per PW1, the matter of MEIL was pending before A1, RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 44/83 CBI vs Ram Prakash then Commissioner. In his cross examination, PW1 stated that he had also told so to IO of CBI in his statements as well as to the Ld. MM in his statement under Section 164 Cr.P.C but PW1 did not say so in his previous statements Ex PW1/DA, Ex PW1/DB, Ex PW1/DC and Ex PW1/B and was confronted and contradicted with said statements on this count as well.
63. As per PW1, Service Tax Returns were filed every six months and the returns were to be scrutinized by the concerned Incharge Superintendent and if any discrepancies were found it were to be brought to the notice of the concerned party through Assistant Commissioner by way of issuing Show Cause Notice as per the monetary limit for the purpose of adjudication; then notice was to be issued which was to be adjudicated for confirming the demand after taking into account the reply filed. As per PW1, in anti evasion work, the documents of the parties were to be scrutinized at random and if any lapses were found out then further records were to be called and then the case for the offence was registered; after the investigation, show cause notice was to be issued for the purpose of adjudication as per the monetary limits prescribed. PW1 further deposed that the Anti Evasion Wing of Central Excise visited the premises of MEIL.
64. PW14, the then Inspector of Central Excise in CommissionerateIV Hyderabad handed over documents including the RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 45/83 CBI vs Ram Prakash file, copy Ex. PW1/A (colly) (D3) of MEIL, which were seized vide seizure memo Ex PW27/B (D2) dated 01/09/2010 to CBI. PW1 further deposed that during the course of his duty, he had seen the file, copy Ex. PW1/A (colly) (D3) which was maintained in his office in Hyderabad. As per PW1, the note dated 10/12/2008 in Ex. PW1/A (colly) running from page NF I to III (from point X4 to X5) was put up to Superintendent wherein the signature of Inspector Bala Chander Shekhar was at point X3. From Ex PW1/A (colly), PW1 identified the notings of various officers i.e., the then Inspector Bal Chander Shekhar at pages NF3 and NF4; signature of Superintendent Rama Rao. PW1 further deposed that note encircled Z at page NF4 of Ex. PW1/A (colly) was put up before him (PW1) on 02/03/2009 by Inspector Bal Chander Shekhar. As per PW1, the signatures of A1 were at point A1 i.e., of date 11/05/2009 and at point A2 i.e., of 12/05/2009 at pages NFV and VI of Ex. PW1/A (colly). Signatures of A1 at aforesaid point A1 were in respect of the note signed by Superintendent and Additional Commissioner on 08/05/2009 having been put before him with the proposal for them to ascertain the practice of classification followed in Service Tax Commissionerates of Chennai and Bangalore and also from HyderabadII Commissionerate, since the issue raised by the assessees that the rendered services by them did not attract the service tax, was debatable and requiring to be studied in detail in comparison with the practices adopted by other dedicated Service Tax Commissionerate. In the course of the final arguments, it was admitted by the Ld. PP for CBI RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 46/83 CBI vs Ram Prakash that before 11/05/2009 there are no notings of A1 nor any signatures of A1 in the notesheets of Ex PW1/A (colly) (D3) or in any other documents on record to reflect and prove of the file of investigation in respect of Service Tax Evasion by MEIL having been put before A1 before 11/05/2009.
65. PW1 further deposed that he had filled the deposit slips (1) Ex PW5/C1 (D12), dated 02/06/2009 of Rs. 25,000/; (2) Ex PW5/C2 (D13), dated 18/03/2009 of Rs. 25,000/; (3) Ex PW5/C3 (D14), dated 25/03/2009 of Rs. 25,000/; (4) Ex PW5/C9 (D15) dated 11/05/2009 of Rs. 20,000/; (5) Ex PW5/C10 (D16), dated 19/05/2009 of Rs. 20,000/; (6) Ex PW5/C4 (D17), dated 02/01/2009 of Rs. 20,000/; (7) Ex PW5/C5 (D18), dated 10/01/2009 of Rs. 20,000/ ; (8) Ex PW5/C6 (D
19), dated 15/01/2009 of Rs. 21,000/; (9) Ex PW5/C7 (D20), dated 21/05/2009 of Rs. 20,000/ ; (10) Ex PW5/C8 (D21), dated 28/05/2009 of Rs. 30,000/; all deposit slips pertaining to account no. 3920000101102018 in PNB, Bank Street, CMO, Hyderabad; in his (PW1) own handwriting on the asking of his Commissioner i.e., A1 in the account of Shilpi Babbar, relative of A1. PW1 also deposed that A1 had told him (PW1) to go to the bank and deposit the aforesaid amounts and had given him (PW1) such sums of money to deposit them in the said bank. As per PW1, A1 used to give part amount from the amounts so collected from the parties to him (PW1) to deposit the same in different banks in different accounts of persons including Shilpi Babbar, RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 47/83 CBI vs Ram Prakash relative of A1. There is no whisper in the testimony of PW1 that any of the sums specified in the deposit slips Ex PW5/C1 to Ex PW5/C10 were part of the bribe sum of Rs 5 lakhs alleged to have been obtained by PW1 from any official of MEIL.
66. PW1 deposed that the specimen writings and signatures Ex PW1/C (colly) i.e., S44 to S102 (in the presence of PW26, Senior Technical Assistant (Drawing) in Indian Bureau of Mines) and S119 to S150 (in the presence of PW28, Assistant Engineer in DDA) were taken by IO PW27. PW9, Senior Scientific Officer, GradeI, CFSL, New Delhi, the Forensic Expert proved his report Ex PW9/A opining that the handwriting evidence points to the writer of the specimen writings S44 to S102 and S119 to S150, collectively Ex PW1/C (colly) attributed to PW1 being the person responsible for the questioned writings inter alia Q5 in Ex PW 5/C4 (D17); Q6 in Ex PW 5/C6 (D19); Q7 in Ex PW5/C1 (D12); Q8 in Ex PW 5/C7 (D20); Q9 in Ex PW 5/C3 (D
14); Q10 in Ex PW 5/C2 (D13); Q11 in Ex PW 5/C8 (D21); Q14 in Ex PW 5/C5 (D18).
67. PW10, Assistant GEQD, Shimla, the forensic expert had proved his report dated 12/12/2011, Ex PW10/A and opined that the questioned writings Q12 in Ex PW5/C10 (D16); Q13 in Ex PW5/C9 (D15) and specimen writings S52 to S102, which PW1 deposed to be belonging to him, part of Ex PW1/C (colly) had been written by one and RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 48/83 CBI vs Ram Prakash the same person.
68. A1 in the course of his statement under Section 313 Cr.P.C stated that he never asked PW1 to collect any money from any party and had never received any such money nor given any such money to PW1 as alleged by him but had given some money on some occasions to PW1 for deposit in the account of Shilpi Babbar at the request of his wife as she wanted to help her sister and her family which was in severe financial crisis due to various reasons and A1 and his wife had sufficient savings out of his salary, income of his wife from rent duly declared in his IPR for over 20 years, cash given to her by his elder son Avneesh Verma, settled in UK since 2000 who visited India every year once or twice and at the time of leaving India, he (son of A1) had given cash to wife of A1 out of love and affection; wife of A1 also had sufficient cash from the account of her elder son settled in UK and having NRI Account and a Saving Account operated by her on his behalf. A1 also stated in his statement that he had given the aforesaid sums of money to PW1, which were deposited by PW1 as aforesaid in the stated account of Shilpi Babbar. Probability to aforesaid defence of A1 is lent by Ex DW3/A i.e., copy of the statement of account no. 1549000100134219 of his son Avneesh Verma in PNB, Defence Colony, Jalandhar for the period from 01/01/2009 to 30/06/2009 and from the deposition of DW1 and DW3 in defence evidence, elicited previously; besides which even in the prosecution evidence led the statement of bank account of accused RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 49/83 CBI vs Ram Prakash Ex PW7/A is on record embodying withdrawals of various sums of money in the periods in question.
69. PW2 N. Thirupathi Rao deposed that he was working with MEIL as CFO from November 2007 to May 2009 and later as Director Finance. As per PW2, his company was mainly executing Engineering Procurement Construction Projects mostly of Government. As per PW2, in December 2008, anti evasion squad of Central Excise came to the office of his aforesaid company at S2, TIE, Balanagar, Hyderabad to verify its record and which were produced before them; after verification, the squad took away some documents; thereafter, aforesaid team/squad visited factory of aforesaid company at Gowdavally and also verified documents from there; the company officials had produced all the requisite information before the members of the said squad. As per PW 2, during the aforesaid visits, official of aforesaid squad insisted and pressurized that company officials including him for payment of service tax despite the fact that most of the projects undertaken by aforesaid company were service tax exempted projects. PW2 further deposed that after the said visit, Megha Engineering paid an amount of Rs. 20 lakhs in month of December 2008 and Rs. 20 lakhs in month of February 2009 under protest to Central Excise Department; the copies of cheques dated 28/12/2008 and 20/02/2009 in favour of Chief Accounts Officer, Central Excise HyderabadIV, Commissionerate in respect of aforesaid amount which were given to Central Excise Department under protest and are RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 50/83 CBI vs Ram Prakash part of file Ex. PW1/A (colly). PW3 M. Prasad Rao, another approver in the course of his cross examination candidly admit that in no documents/correspondence of their company with Excise Department i.e., including those which are part of file Ex PW1/A (colly), there was any mention of such deposits of payments by cheques aforesaid to be under protest. No documents/correspondence of MEIL with the department of A1 and PW1 i.e., including those which are part of file Ex PW1/A (colly) find any mention of such deposits of payments by cheques aforesaid to be under protest. Accordingly, on this count, falsity in the testimony of PW2 is writ large on the face of record.
70. As per PW2, Prakash Babu (PW1) the Superintendent of Central Excise Department came to the Balanagar office of his Company in the month of January 2009 and threatened to his (PW2) colleague namely M. Prasad Rao (PW3), DGM who looked after Central Excise and Service Tax matter. PW2 further deposed that his colleague PW3, conveyed him the message of demand of Rs. 5 lakhs from A1 through Prakash Babu (PW1) and out of compulsion, he (PW2) paid Rs. 5 lakhs cash to PW3 to be given to A1 for not putting any pressure and not seizing the bank accounts; at the time of giving of aforesaid amount, the case of MEIL was pending investigation with Central Excise Department, Hyderabad. As per PW2, the letters dated 11/12/2008, 18/12/2008, 02/01/2009 with annexed table, 20/02/2009 and 04/05/2009 under the signature of PW3, were part of file D3 Ex. PW1/A (colly) and RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 51/83 CBI vs Ram Prakash were sent by aforesaid MEIL to Central Excise Department, Hyderabad. PW2 also deposed that he gave statement under section 164 Cr.P.C., Ex. PW2/A before Ld. Magistrate, Hyderabad on 21/08/2010 with his free will, voluntarily without any pressure. In his cross examination PW2 admitted that he never met A1 before. It is also the version of PW2 that when PW1 had come to the office of PW2 in the month of January 2009, as aforesaid, he had no conversation with PW1 nor he had heard the conversation between PW1 and PW3. Accordingly, for PW2 the conversation which took place between PW1 and PW3 on the visit of PW1 in the office of PW2 in the month of January 2009 as aforesaid was a hearsay evidence, so is inadmissible being hit by Section 60 of the Indian Evidence Act.
71. PW3 deposed that as DGM Accounts in MEIL he was looking after the Central Excise and Service Tax matter of the said company which was in the field of manufacturing MS Pipes as well as executing government project which were exempted from service tax. PW3 stated that on 11/12/2008 anti evasion squad of Service Tax Department of Central Excise visited the Balanagar office of the aforesaid company and verified records there as well as took away some records, after which they demanded service tax amount which was initially protested on the ground that project of the aforesaid company were exempted from service tax but thereafter those officials pressurized the officials of aforesaid company several times for payment of service RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 52/83 CBI vs Ram Prakash tax and information agreements.
72. PW3 further deposed that he along with PW1 had met A1 in Excise Department at Possnet Bhawan, Koti, Hyderabad on 18/12/2008 when post dated cheque of Rs. 20 lakhs dated 28/12/2008 towards the payment of service tax was submitted to A1, which cheque was given by A1 to PW1, with instructions to PW1 to give acknowledgment; thereafter, A1 said to PW3 that, "you go to Prakash Babu, what Prakash Babu says, you do it". In the course of his cross examination, PW3 was confronted and contradicted with Ex PW3/DA, his previous statement under Section 161 Cr.P.C wherein his aforesaid version did not find any mention there. Thereafter PW3 candidly admitted that he did not tell these facts in his statement under Section 164 Cr.P.C, Ex PW3/A to Ld. Metropolitan Magistrate in Hyderabad. PW3 also had deposed in his examination in chief that after one or two days of the handing over of aforesaid cheque, he received call from PW 1 for deposit of service tax and information. In his cross examination, PW3 admitted of having not told the said fact in his statement under Section 164 Cr.P.C Ex PW3/A to Ld. Metropolitan Magistrate in Hyderabad.
73. PW3 also stated in his examination in chief that in the month of January 2009 PW1 came to the office of PW3 and demanded the payment of service tax; then PW1 told PW3 that A1 had demanded RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 53/83 CBI vs Ram Prakash an amount of Rs. 5 lakhs for bribe and he (PW1) has instruction from A 1 to seize the records and attach the bank accounts if he (PW3) does not pay the amount of Rs. 5 lakhs. PW3 further stated that he informed his Director Finance namely PW2. In his cross examination, PW3 asserted that he had told the aforesaid fact in his statement under Section 161 Cr.P.C to IO but was confronted with Ex PW3/DA, the statement under Section 161 Cr.P.C and contradicted where it was not so recorded and even in statement under Section 164 Cr.P.C Ex PW3/A the said facts were not so stated in such words and there was no mention of PW1 having come in the office of PW3 in the month of January 2009 but after stating that in February 2009 Rs 20 lakhs as service tax was paid under protest, the officials of Service Tax Department went on to pressurize to pay service tax and verify the record and for providing information after which it was stated that PW1 pressurized PW3 to pay Rs 5 lakhs as demanded by A1 and on failure to pay said sum, PW1 threatened to seize the books of accounts and bank accounts of the company. Entire tenor in Ex PW3/A, per se is of such demand by PW1 followed by aforesaid threat to have taken place after the month of February 2009 when Rs 20 lakhs service tax was paid under protest by the company of PW3.
74. PW3 also deposed in his examination in chief that PW2 gave Rs. 5 lakhs cash in an envelope to PW3 which he (PW3) took to the Central Excise office and gave the said envelope containing Rs. 5 RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 54/83 CBI vs Ram Prakash lakhs to PW1 for handing over to A1 as bribe money. In his statement Ex PW3/DA under Section 161 Cr.P.C given to IO, PW3 had stated at portion C to B that the aforesaid bribe sum of Rs 5 lakhs was paid by PW3 to PW1 outside the office premises. As per PW3, "outside the office premises" meant outside the office premises of Central Excise. As per PW3, his office was at a distance of about 10 kilometers from the office of accused and it took 3040 minutes normally to reach there. PW3 admitted in the cross examination that in his statement Ex PW3/A, under Section 164 Cr.P.C given to Ld. Metropolitan Magistrate in Hyderabad, he did not state the place where he (PW3) had handed over the said bribe sum of Rs 5 lakhs to PW1 or that he had taken the money to the office of accused. Per contra, in his cross examination, PW1 stated on 19/11/2012 that PW3 had given him the said bribe sum of Rs 5 lakhs on the road near Andhra Bank, situated at Balanagar, Hyderabad which place was less than half a kilometer distance from office of MEIL i.e., office of PW3; at that time only PW1 and PW3 were there; PW1 had gone there on a motorcycle of someone else, who was not from his office; PW3 came there on foot and it was PW3 who had told PW1 on the same day to come at the said place near Andhra Bank post lunch session. Adverting to Ex PW1/B, statement under section 164 Cr.P.C given by PW1, it was revealed that it finds mention inter alia of PW1 having collected Rs 5 lakhs from MEIL at Balanagar, given by one person namely Prasad. Per se, PW1 had no other option but to depose in terms of his such elicited version in Ex PW1/B qua place of receipt of alleged bribe sum of Rs 5 RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 55/83 CBI vs Ram Prakash lakhs. PW3 deposed that he had gone alone on bike to the office of accused where the stated bribe sum of Rs 5 lakhs was paid to PW1 and it took 3040 minutes for him to reach there from his office which was at a distance of 10 kilometers from the office of the accused. PW1 had also elicited that the distance between Andhra Bank, Balanagar, Hyderabad and their office was about 15 kilometers. The tenor of deposition of PW1 in his examination in chief remained althrough that in their office after the parties met A1, A1 directed PW1 to collect money from such parties, the money had been collected and upon which after the parties left, such collected money was given by PW1 to A1 immediately or in the same evening. PW1 did not made a whisper in his examination in chief of having gone to office of MEIL in December 2008 and even of the fact of when and where he had collected the bribe money or what he had done of the bribe money so received by him. It is proved on record that the approvers PW1 and PW3 are telling different tales in material contradictions with each other regarding the place of payment of the stated bribe sum of Rs 5 lakhs by PW3 to PW1 for A1 and the manner of payment of bribe. Accordingly, there is a shift in the scene of crime of the acceptance of the bribe sum, as is borne out from the versions of PW1 and PW3. The Apex Court in the case of Sucha Singh (Supra) had upheld the acquittal accorded by the High Court based inter alia upon shifting of scene of occurrence, construed as an infirmity in the prosecution case. In the case of Thummala Lovaraju (Supra) it had been held that in case of shifting of scene of offence, the prosecution RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 56/83 CBI vs Ram Prakash case has to be thrown out, the same being highly doubtful. In the instant case, in his entire testimony, PW1 did not whisper of having handed over the bribe sum of Rs 5 lakhs subsequent to its receipt from PW3 to A1 at any moment of time nor did he say that any of the sums deposited vide deposit slips Ex PW5/C1 to Ex PW5/C10 in the account of Ms. Shilpi Babbar at PNB, Bank Street, CMO, Hyderabad were in any way connected or were part of the aforesaid bribe sum of Rs 5 lakhs received by him from PW3. It is own version of PW1 that A1 on different moments of time, on different days in different months had so handed him (PW1) the sums of money mentioned in deposit slips Ex PW5/C1 to Ex PW5/C10 in the period of five months ranging from 02/01/2009 to 02/06/2009. The prosecution has failed to prove any nexus between the sums of money mentioned in deposit slips Ex PW5/C1 to Ex PW5/C10 so deposited in the bank in the period of five months ranging from 02/01/2009 to 02/06/2009 with the alleged bribe sum of Rs 5 lakhs alleged to have been given by PW3 to PW1 for A1.
75. PW3 had also deposed that after payment of the aforesaid bribe sums of Rs 5 lakhs to PW1 for A1, thereafter none from Central Excise pressurized the company of PW3 for information and record etc. PW3 also deposed that in the month of February 2009, company of PW3 paid amount of Rs. 20 lakhs by cheque to Service Tax Department for payment of service tax under protest. PW3 testified that MEIL had arranged an accommodation in Delhi for stay of A1 through Amit RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 57/83 CBI vs Ram Prakash Kaushik (PW21), Executive Accountant of the company of PW3 but did not elaborate as to when it was so done or on whose instructions and as to where such arrangements were made. Such assertion of PW3 is vague and devoid of material particulars. As per PW3, the file Ex. PW1/A (colly) (D3) pertaining to company of PW3 maintained with Service Tax Department, Hyderabad was having a copy of cheque dated 28/12/2008, Ex. PW1/AY along with copy of letter dated 18/12/2008, Ex. PW1/AX; the said letter along with aforesaid cheque of MEIL was given to Central Excise Department for amount of Rs. 20 lakhs in favour of Chief Account Officer, HyderabadIV Commissionerate office towards the payment of service tax under protest. PW3 also stated that the file Ex. PW1/A (colly) (D3) was having another copy of cheque dated 20/02/2009, Ex. PW1/AZ1 along with copy of letter dated 20/02/2009, Ex. PW1/AZ which were given to Central Excise Department for amount of Rs. 20 lakhs in favour of Chief Account Officer, HyderabadIV Commissionerate office towards the payment of service tax under protest. As per PW3, the file Ex. PW1/A (colly) (D
3) also contained the statements of PW3 which were of dates 11/09/2009, Ex. PW1/AZ2 and 31/08/2009, Ex. PW1/AZ3 and there were also copies of letters dated 04/05/2009, 02/01/2009 and 11/12/2008, Ex. PW 1/AZ4 to AZ6 respectively. PW3 candidly admitted in his cross examination that in no documents/correspondence of MEIL with Excise department, i.e., including documents in file Ex PW1/A (colly), there was any mention of any of deposits under protest by MEIL.
RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 58/83 CBI vs Ram Prakash
76. Manual2005 of Central Bureau of Investigation finds mention of Motto as, "Industry, Impartiality and Integrity" and the vision based on said Motto so as the CBI to focus inter alia on, "Combating corruption in public life, curb economic and violent crimes through meticulous investigation and prosecution" as well as, "Strive for excellence and professionalism in all spheres of functioning so that the organization rises to high levels of endeavour and achievement." Of course, officers of CBI, the premier investigating agency, at the outset cannot be said to be untrustworthy but when in a serious case of alleged corruption by a senior bureaucrat is being investigated, suspicion is laid over the senior bureaucrat of alleged corruption by allegedly demanding and accepting bribe through a subordinate, what is expected by a Court from the officers of investigating agency is firstly to proceed as per the procedure established, law laid, thereupon to conduct meticulous preliminary inquiry, inquiry and investigation, collect the best possible incriminating evidence at the first instance against such suspects/accused to lend credence and avoid criticism.
77. Section 6A of The Delhi Special Police Establishment Act, 1946 (in short DSPE Act) reads as under:
"6A. Approval of Central Government to conduct inquiry or investigation. (1) The Delhi Special Police Establishment shall not conduct any inquiry or investigation into any offence alleged to have been RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 59/83 CBI vs Ram Prakash committed under the Prevention of Corruption Act, 1988 (49 of 1988) except with the previous approval of the Central Government where such allegation relates to:
(a) the employees of the Central Government of the level of Joint Secretary and above; and
(b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.
(2) Notwithstanding anything contained in subsection (1), no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988 (49 of 1988)."
78. Manual2005 of Central Bureau of Investigation inter alia embodies following provisions:
"10.6 If a case is required to be registered under the Prevention of Corruption Act 1988 against an officer of the rank of Joint Secretary and above or a Government appointee in the Central Public Sector Undertakings, prior permission of the Government should be taken before enquiry/investigation as required under Section 6A of the DSPE Act except the case under Section 7 of the P C Act wherein the registration is followed by immediate arrest of the accused. In case, involvement of another Government servant of the abovementioned rank(s) is revealed during the course of investigation, a fresh permission as required under Section 6A of the DSPE Act, which should be obtained at the earliest. The permission so obtained should form an integral part of the FIR or the Case Diary, as the case may be."
"Recording of statements by Magistrate 14.23 In appropriate cases, crucial statements made in the course of investigation by important/vital witnesses may be got recorded by Magistrates under Section 164 Cr.P.C with a view to reduce the possibility of their being tampered with later on or the witnesses resiling from their statements. Such statements should be recorded in RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 60/83 CBI vs Ram Prakash the manner prescribed in the Code of Criminal Procedure. Since these statements are recorded by the Magistrate, and the I.O is excluded from the proceedings, there is likelihood that, the witness may forget some important facts while giving statement to the Magistrate which may prove fatal during the course of of trial. Due care should, therefore, be exercised to ensure that all essential details are brought out in the statements recorded under Section 164 Cr.P.C and errors, omissions and contradictions avoided."
"14.24 Confessional statements of the accused persons should be got recorded by competent Magistrates as quickly as possible under section 164 Cr.P.C. All necessary precautions laid down under section 281 Cr.P.C should be strictly observed while recording such statements. The I.O. should also satisfy himself that the accused is willing to disclose all the facts within his knowledge and is not hiding anything. Same precautions should be followed in the matter of recording confessional statement by any other authority empowered to do so under any law applicable to the case, from time to time."
"14.25 If there is any doubt at the time of recording of the statement whether the person making the statement will be a witness or an accused, the recording of statement under Section 164 Cr.P.C should be kept pending till the position becomes clear because the procedures for recording statements of witnesses and the confessions of accused persons under section 164 Cr.P.C are different."
"Examination of Suspect Accused Persons 14.27 When a suspect appears before the Investigating Officer, he should be examined thoroughly on all points. His statement should be carefully recorded with a view to ascertain his defence and to find out the cases from which the evidence could be gathered to verify his defence and to prove the charges against him during the course of further investigation. The accused may be informed of the charge against him and questioned thoroughly to seek his explanation. If the accused makes any specific disclosure of material objects used in the commission of offence, his disclosure statement should be recorded in the presence of witnesses and recovery of the articles, weapons etc. so disclosed by him should be made as per the provisions of Section 27 of the Evidence Act. All the points or arguments advanced by the accused should be looked into and thoroughly verified by the Investigating Officer. It should be ensured that complete statement of the accused is RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 61/83 CBI vs Ram Prakash recorded and the points arising there from are looked into during the course of investigation, so that the prosecution is fully prepared to meet the defence of the accused/suspect."
"15.10 The questioned documents requiring reexamination and second opinion may be referred to Director, C.F.S.L., New Delhi for their re examination by a Board constituted by the Director, CBI/C.F.S.L."
"5.3 of Annexure 15A When taking specimen handwriting of several suspected or accused persons the writing of each individual should be taken on separate sheets and not on the same sheet. In cases where a person is required to give several specimens of his signature, it is also advisable to take each specimen on a separate paper, care being taken to remove the previously written slips from the sight of the individual when he is writing the other specimens. For the purposes of obtaining specimen handwritings the matter should preferably be dictated. In no case should the suspect be allowed to see the document in question. When any lengthy piece of writing is dictated or given for copy, the actual time taken in writing should be noted and also the kind of pen used and the position of paper while in the act of writing, i.e. whether laid on a flat hard surface, or held across the palm, or placed across the thigh or in any other position. The Officer taking the specimen should state on it the name of the writer, together with the particulars above referred to, and affix the date of the writing. He should also certify, on the same sheet, that the specimen was written in his presence."
79. Vigilance Manual Volume I, Ex DW5/A of Central Vigilance Commission inter alia embodies following provisions:
"4.7.5 The SPE will take into confidence the head of the department, or the office concerned, before taking up any enquiry (PE or RC), or soon after starting the enquiry, as may be possible according to the circumstances of each case. This will also apply if a search is required to be made of the premises of an officer."
REGISTRATION OF CASES AGAINST OFFICERS OF DECISION MAKING LEVELS "4.9.1 The SPE shall not conduct any inquiry or investigation into any RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 62/83 CBI vs Ram Prakash offence alleged to have been committed under the PC Act, 1988, except with the previous approval of the Central Government, where such allegations relate to (a) the employees of the Central Government of the level of Joint Secretary and above; and (b) such officers as are appointed by the Central Government in corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government hereinafter referred to as "officers of decisionmaking level". However, no such approval shall be necessary for cases involving arrest of a person on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration as referred to in clause 7 (c) of the PC Act, 1988."
"4.9.2 In case, it is necessary to examine the officer of decisionmaking level with regard to inquiry against another officer, the same may be carried out by the SPE. But if during the course of search of the premises of another officer, or from the deposition in the inquiry against the other officers, there is a reason to suspect malafide or corrupt practice against the officer of decisionmaking level, the inquiry against the latter may be initiated only after following the procedure prescribed in the para 4.9.1 supra."
GRANT OF IMMUNITY/PARDON TO APPROVERS "4.18.1 If during an investigation, the SPE or the CVO finds that a public servant, against whom the Commission's advice is necessary, has made a full and true disclosure implicating himself and other public servants or members of the public and that such statement is free from malice, the IG/SPE or the CVO, as the case may be, may send his recommendation to the Central Vigilance Commission regarding grant of immunity/leniency to such person from the departmental action or punishment. The Commission will consider the recommendation in consultation with the administrative Ministry concerned and advise that authority regarding the course of further action to be taken."
80. In his cross examination Investigating Officer PW27 candidly admitted that no preliminary inquiry was conducted in this matter before registration of the FIR; on record, there was no request RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 63/83 CBI vs Ram Prakash made to any superior authority of A1 for permission for preliminary inquiry u/s 6A of DSPE Act; on record, there was no request made to any superior authority of A1 for permission for registration of FIR. It was admitted by PW27 that at the time of registration of FIR, A1 was holding rank which was above the rank of Joint Secretary of Government of India.
81. PW27 elicited that he applied for search warrants on 12.08.2010 and had obtained search warrants to conduct search at the office, residence of accused and at the office of MEIL, which company was having one office in Delhi and another office at Hyderabad but had not placed on record of this matter, any copies regarding aforesaid. As per PW27, he did not find any incriminating material against accused concerning the present case in the conducted searches aforesaid.
82. PW27 further elicited that he did not interrogate PW1 for the first time; PW20 interrogated PW1 initially and his statement was recorded; two three days later of such recording of statement of PW1, he was called in Hyderabad and then he (PW27) had seen said statement. PW27 also stated that he obtained search warrants for search to be conducted at the office and residence premises of PW1 from the court of Sh O.P Saini, Ld. Special Judge, on 12/08/2010; Dy. SP S.C. Shukla of CBI Hyderabad Branch had gone to execute aforesaid search warrants and he (PW27) had not gone for said purpose himself; searches were RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 64/83 CBI vs Ram Prakash conducted at 9 places on obtaining orders of the Court on the premise that the accused / suspected persons may alter, create, remove, destroy and tamper with the evidence and conceal it, if not recovered immediately through searches; besides aforesaid searches, another search was conducted at the premises of Chan Prakash relative of A1 at Jalandhar under section 165 Cr. PC; the places where searches were conducted were not including any place of any relative of PW1; only in respect of the allegations contained in the lodged First Information Report against accused, the searches were conducted to gather the incriminating evidence from the places where incriminating material was suspected to be kept; after search no intimation was sent to any superior official of either A1 or PW1 about any material seized or found incriminating against them.
83. PW27 also elicited that he had read the statements under section 161 Cr. PC of PW1, PW2 and PW3 recorded by Dy. SP S.C. Shukla and had informed his superiors in respect of the allegations contained therein.
84. PW27 admitted that allegations contained in statement of PW1 were all together different from the contents of the FIR; but as per PW27, there was no need for registration of any fresh or new FIR on the basis of aforesaid allegations contained in the statement of PW1, so no new FIR was accordingly registered. FIR Ex PW27/A (D1), dated RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 65/83 CBI vs Ram Prakash 11/08/2010 is in respect of alleged pecuniary gain obtained by A1 by abuse of his official position from MEIL of Hyderabad in availing hotel accommodation in Hotel Sheraton, Saket, New Delhi for period 03/07/2009 to 04/07/2009 booked by PW21. These allegations, subject matter of the FIR Ex PW27/A are subjudice in the Court of Ms. Swarana Kanta Sharma, Ld. Special CBI Judge, Patiala House Courts, New Delhi in CC No. 20/12 titled CBI vs Ram Prakash (A1 here). Ex PW27/A finds no whisper of any bribe sum of Rs 5 lakhs paid by PW3 to PW1 for A1 at any point of time.
85. Admittedly, as on the date of the registration of the FIR Ex PW27/A, case against A1 was not in respect of his arrest on the spot on the charge of accepting or attempting to accept any gratification other than legal remuneration referred to in clause (c) of the Explanation to Section 7 of the Prevention of Corruption Act, 1988 (49 of 1988). Since PW27, the Investigating Officer himself has admitted aforesaid that at the time of registration of the FIR, the accused was holding rank which was above the rank of Joint Secretary of Government of India, the Officers concerned with investigation of the matter were under bounden duty to follow the mandate of legislature embodied in Section 6A of The Delhi Special Police Establishment Act, 1946 (DSPE Act) as well as provision 10.6 of their own CBI Manual as well as provision 4.9.1 of Vigilance Manual I of Central Vigilance Commission, elicited herein above. Neither for conducting any preliminary inquiry, inquiry or RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 66/83 CBI vs Ram Prakash investigation against A1 pursuant to registration of FIR any prior permission / previous approval of Central Government was sought /obtained before proceeding further in preliminary inquiry, inquiry or investigation against A1, putting all canons of law and elicited provisions of CBI Manual and Vigilance Manual of Central Vigilance Commission at bay. In the cases of Dr. R.R. Kishore (Supra) and H.M Caire (Supra), it was held that if an inquiry or investigation is undertaken without the approval of the Central Government in the cases where employee is of the level of Joint Secretary of Government of India or above, then the inquiry or investigation would be illegal. The provision of Section 6A of DSPE Act is a mandatory provision and is not merely directory.
86. In the course of his cross examination, PW27 elicited initially that he recorded statements of one representative each of said eight concerns excepting Megha Engineering and records of said concerns were also requisioned from office of Chief Commissioner, Custom and Central Excise, HyderabadIV. Further PW27 elicited in his cross examination that eight concerns excepting Megha Engineering did not cooperate in the investigation and did not disclose the demand and acceptance of bribe amount by/for A1. Also PW27 elicited in his cross examination that officials of M/s Sarvotam Ispat, Jayraj Ispat, M/s Pragathi Polymers, M/s Jakhotia Plastics, M/s Ravi Food Private Ltd did not support about any payment of bribe to/for A1 despite enquiries RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 67/83 CBI vs Ram Prakash made from them by PW27 on 25/01/2011. Despite that, neither premises of M/s Sarvotam Ispat, Jayraj Ispat, M/s Pragathi Polymers, M/s Jakhotia Plastics, M/s Ravi Food Private Ltd were raided by PW27 nor any search or seizure was conducted there from to unearth any evidence towards the allegation of PW1 qua payment of bribe by said concerns to PW1 for A1. From these five concerns no incriminating evidence against A1 could be gathered nor any of their owners/employees were arrested nor any police remand of theirs were sought nor any action was taken against any of the owners/employees of these five concerns. In the course of his cross examination, PW27 further elicited that the identity of Venkat Reddy, Virchow Labs and Sripathi/Sathpathi Chemicals/Laboratories could not be established during the course of investigation nor these could be located while from the office of A1, PW27 could not find any assessee of such name or any higher officer of any assessee namely i.e., Venkat Reddy, Virchow Labs and Sripathi/Sathpathi Chemicals/ Laboratories. Entire testimony of Investigating Officer PW27 is shorn of any details qua investigation conducted in respect of any construction of said house of said S. Lakshmi, Contingent Employee of ADG Audit or any sum spent on such construction by PW1 out of any alleged sum paid by A1 to PW1. Even PW27 did not whisper of any investigation conducted or inquiries made from any employee/owner of any hotel/restaurant where PW1 allegedly took A1 for meals. So, it is own case of PW27 that excepting for the allegations qua MEIL levelled by PW1 against A1 for having collected any bribe sum on directions of A RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 68/83 CBI vs Ram Prakash 1, all other allegations of PW1 were found false/unsubstantiated in the course of investigation.
87. PW27 deposed that as on the date of conclusion of the investigation, the status of PW1 was accused because of his statements but added that after PW1 was made approver, he became witness. As per PW27, as on 25/01/2011 or before, since the investigation was in progress, the status of PW1 was not clear as to whether he was accused. PW27 also deposed that no intimation was given to the department of PW1 even after his status was clear as that of an accused; during the period between the date of recording of the statement under Section 164 Cr.P.C of PW1 and till the date when PW1 came to them to become approver, it was not suggested by him (PW27) to PW1 to become approver nor PW1 suggested to become approver; PW1 had come on his own for becoming approver and he (PW27) had not issued any notice / summon to PW1 nor had informed PW1 telephonically or otherwise to so come to become approver nor suggested to PW1 to inform his office about the aspect of his becoming approver or taking permission prior to becoming approver nor had PW27 asked PW1 whether he had informed or taken any such permission from his office to become approver. As per PW27, he did not initiate any proceedings for obtaining sanction for prosecution of PW1 before his arrival for becoming approver.
88. PW27 also deposed that he had taken up the investigation RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 69/83 CBI vs Ram Prakash one or two days prior to 19/08/2010 in Hyderabad and got the statements of PW1, PW2 and PW3 recorded under Section 164 Cr.P.C before the Ld. Metropolitan Magistrate at Hyderabad and had not done anything else in the investigation then there in Hyderabad. As per PW27, there was no need for him to brief/inform PW1, PW2 and PW3, their status as witness or accused so he did not inform/briefed them; so before getting their statements recorded under Section 164 Cr.P.C; he (PW27) had not taken any precaution to see that PW1, PW2 and PW3 could not consult or talk interse before recording of their statements under Section 164 Cr.P.C. PW25, Ld. Metropolitan Magistrate also deposed that her Ld. Chief Metropolitan Magistrate assigned her the work of recording of statement under section 164 Cr. PC of witnesses namely V. Prakash Babu (PW1), M. Prasad Rao (PW3) and N. Thirupathi Rao (PW2) which she recorded on 21/08/2010 as Ex PW1/B; Ex PW3/A and Ex PW2/A respectively. Said statements along with letter Ex PW25/A of PW25 and the order dated 19/08/2010 of the Ld. Chief Metropolitan Magistrate, Hyderabad, nominating her to record the said statements and application of PW27 for recording of statements of these witnesses namely V. Prakash Babu (PW1), M. Prasad Rao (PW3) and N. Thirupathi Rao (PW2) were sent by PW25 to Ld. Special Judge, Patiala House Court vide registered post. Above said application of PW27 on record is dated 19/08/2010 which was moved before the Court of Chief Metropolitan Magistrate, Hyderabad with the prayer for recording of statement of witnesses namely V. Prakash Babu (PW1), M. Prasad Rao RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 70/83 CBI vs Ram Prakash (PW3) and N. Thirupathi Rao (PW2). PW27 also deposed that on 25/01/2011 or before since the investigation was in progress, the status of PW1 was not clear as to whether he was accused or he was a witness. It was so asserted by PW27 despite his having read statement Ex PW1/DA of PW1 recorded under Section 161 Cr.P.C dated 14/08/2010 by his predecessor IO PW27 embodying inter alia the facts of collection of the bribe money from the nine stated parties on the directions of A1 and later on depositing the alleged collected bribe money in various bank accounts of stated ten persons including the relatives of A1, detailed therein. PW27 cannot be permitted to feign ignorance of the alleged averment of PW1 in Ex PW1/DA of obtaining bribe from the parties detailed therein and cannot be permitted to say that before statement Ex PW1/B of PW1 was recorded, PW1 could not be termed as an accused. It was on the application of PW27 moved before my Ld. Predecessor Sh Sanjeev Jain, Ld. Special Judge, CBI2, New Delhi, upon which in terms of order dated 16/12/2011 pardon was granted to PW1. The provision in the CBI Manual at 14.24 was not complied by PW27 and even before PW25 Ld. Metropolitan Magistrate, PW27 prayed for recording of statement of witnesses namely V. Prakash Babu (PW1), M. Prasad Rao (PW3) and N. Thirupathi Rao (PW2). Bare perusal of the statements Ex PW1/B; Ex PW3/A and PW2/A would reveal that these were recorded as statements of witnesses under Section 164 Cr.P.C and not as confessions of accused nor they embody any precautions for recording any confession as they are laid in sub sections (2) and (4) of Section 164 of RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 71/83 CBI vs Ram Prakash Code of Criminal Procedure. Even if PW27 had doubts whether PW1, PW2 and PW3 were witnesses or accused at the time of recording of their such statements under Section 164 Cr.P.C, Ex PW1/B, Ex PW2/A and PW3/A then in terms of provision 14.25 of CBI Manual, PW27 was required to keep the matter of recording of such statements under Section 164 Cr.P.C pending or on 19/08/2010 should not have moved the application before Ld. Chief Metropolitan Magistrate, Hyderabad for recording of such statements till the status of PW1, PW2 and PW3 became clear as to whether they will be the witnesses or accused. Mandate in provision 14.25 of CBI Manual was put to winds. Even before getting statement under Section 164 Cr.P.C of PW1 recorded and/or moving application for grant of pardon to PW1, the elicited provisions 4.7.5, 4.9.1, 4.9.2, 4.18.1 of Vigilance Manual Volume I, Ex DW5/A of Central Vigilance Commission, elicited herein above were not complied by PW27 or any other officer of investigating agency. No intimation was given to the department of PW1 or Central Vigilance Commission with any recommendation regarding grant of immunity/leniency to PW1 from the departmental action/ punishment.
89. PW27 in his cross examination admitted that when he had taken over the investigation i.e., in the month of August 2010 he was aware of the provision 15.10 contained in the CBI Manual. Yet for reasons best known to PW27 and not disclosed by him in his cross examination despite specific question, after GEQD Shimla did not give RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 72/83 CBI vs Ram Prakash opinion in respect of some documents, those documents were sent by PW27 to CFSL CBI, Delhi for opinion but the procedure laid in provision 15.10 of CBI Manual for reexamination by a Board constituted by the Director CBI/CFSL was not followed.
90. PW27 also elicited that documents were placed before PW1 for obtaining his specimen writings/signatures. It is proved on record that the procedure laid in provision 5.3 of Annexure 15A of Chapter 15 of CBI Manual, elicited above, was not followed.
91. As per PW27, he had inter alia recorded the statement of Sh Krishna Reddy, Managing Director of MEIL in the course of investigation. On 14/03/2013, said Sh Krishna Reddy was dropped as prosecution witness vide statement given by Ld. Public Prosecutor for CBI and the said witness in attendance was accordingly not examined and discharged. As per PW27, copies of General Expenses Ledger from 01/01/2009 to 31/12/2009; Miscellaneous Expenses Ledger from 01/01/2009 to 31/12/2009 duly attested by Chartered Accountant; Cash Book Ledger from 01/02/2009 to 31/03/2009; Memorandum and Article of Association of MEIL were obtained during course of investigation but all these documents were not placed on record along with the charge sheet in this case, since in those documents there was no supporting material for allegations of charge against the accused in this case. In response to the Court Question, PW27 elicited that the alleged payment RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 73/83 CBI vs Ram Prakash of cash sum of Rs 5 lakhs, allegedly paid as bribe for A1, was not shown in a single transaction but was divided in various transactions in the books of accounts of MEIL, the various transactions aforesaid were in respect of site expenses, employees welfare and miscellaneous expenses and about which the officials of the company told PW27 in the course of investigation that they did not exactly remember the exact amount of every such transaction of entry recorded in the books of accounts, which cumulatively could arrive at figure of said Rs. 5 lakhs. As per PW27, PW2 and PW3 dealt with the Finance aspect of MEIL; aforesaid entries of sum of Rs. 5 lakhs in question were done by PW3 in the ledger, cash book i.e. the books of accounts of MEIL; such entries were done in computer in the period from January 2009 to December 2009 but PW27 was unable to tell as to the specific entries of specific sums of money, which could total such Rs. 5 lakhs in question. The copies of aforesaid books of accounts have not been filed with the chargesheet in this case. PW27 further elicited that he had not placed on record any vouchers containing any transactions so done as aforesaid to show the total sum of Rs. 5 lakhs in question in the books of accounts of MEIL as he (PW27) had not seized any such vouchers.
92. PW27 deposed that he did not inform either Registrar of Companies or Company Law Board or any other institution/office in respect of manipulation of entries by MEIL in their books of account nor any advice was obtained from income tax department or any technical RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 74/83 CBI vs Ram Prakash assistant of accounts in this matter.
93. No selfinculpatory version is borne out in any of the testimonies of approver witnesses PW1, PW2 and PW3, as elicited above. PW1 did not utter a word in respect of having retained any part of bribe sum collected by him from any of the alleged nine parties on alleged asking of A1 or having derived any benefit, motive or reward from his such acts from A1 for collection of such bribe sums from the alleged nine parties. Even PW2 and PW3 did not allege of them or their company MEIL to have gained monetarily or otherwise by payment of such alleged bribe sum of Rs 5 lakhs to PW1 for A1 or on that count they or their said company were permitted to forbear any act/duty cast upon them/their company by mandate of any law or procedure. It is own case of PW2 and PW3 that whatever documents were demanded in writing or oral, on different occasions by the department of PW1 through PW1 or other officials, were so supplied either with the covering letter or otherwise.
94. PW1 alleged to have collected sums of bribe on directions of A1 from nine parties amongst which three parties were found to be not in existence and five other such parties did not support an iota of such allegation of PW1 against A1, as elicited previously. Ex DW6/A (colly) brought and proved on record by DW6 per se demonstrates of PW1 having attended investigation of CBI at Hyderabad from RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 75/83 CBI vs Ram Prakash 13/08/2010 to 24/08/2010, not admitted by PW1 in deposition and not deposed by IO PW27, depicting falsity in their deposition. Aforesaid fact brings into fore the circumstances under which PW1 gave statement Ex PW1/B under section 164 Cr.P.C on 21/08/2010 i.e., after being grilled for nine consecutive days by seasoned officers of the premier investigating agency. PW1 alleged of no XT1 Diary being maintained in the course of investigation conducted by them in the course of their duties while by version of DW4 on record, falsity in testimony of PW1 on this count has been proved on record. Two cell phones seized as per PW1, were with held and neither these cell phones were produced nor their call detail records were filed with chargesheet, for which adverse inference is drawn against investigating agency/prosecution. Books of account of MEIL were neither filed on record nor proved nor it was shown nor proved as to what was the source of the alleged bribe of Rs 5 lakhs or what was the manner of fudging of accounts, regarding which the Managing Director Krishna Reddy of MEIL could have spilled the beans but was dropped as a prosecution witness and not examined, for which aspect adverse inference is drawn against the investigating agency/prosecution.
95. In 2008 CRI. L. J. 3061, "Dalbir Singh v. State of Haryana, APEX COURT held that " Coming to applicability of the principle of falsus in uno falsus in omnibus, even if major portion of evidence is found to be deficient, RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 76/83 CBI vs Ram Prakash residue is sufficient to prove guilt of an accused, notwithstanding acquittal of large number of other coaccused persons, his conviction can be maintained. However, where large number of other persons are accused, the Court has to carefully screen the evidence. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" (false in one thing, false in everything) has not received general acceptance in different jurisdiction in India, nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence". (See Nisar Alli v. The State of Uttar Pradesh, AIR 1957SC 366). Merely because some of the accused persons have been acquitted, though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate the accused who had been acquitted from those who were convicted. (See Gurucharan Singh and another v. State of Punjab, AIR 1956 SC 460). The doctrine is a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a deadstop. The witnesses just cannot help in giving embroidery to a story, however, true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the Court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment. (See Sahrab s/s Belli Nayata and another v. The State of Madhya Pradesh, (1972) 3 SCC 751, and Umar Ahir and others v. The State of RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 77/83 CBI vs Ram Prakash Bihar, AIR 1965 SC 277). An attempt has to be made to in terms of felicitous metaphor, separate grain from the chaff, truth from falsehood. Where it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is discard the evidence in toto. (See Zwieolae Ariel v. State of Madhya Pradesh, AIR 1954 SC 15; and Balaka Singh and others v. The State of Punjab, AIR 1975 SC 1962). As observed by this Court in State of Rajasthan v. Smt. Kalki and another, AIR 1981 SC 1390, normal discrepancies in evidence are those which are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and these are always there however honest and truthful a witness may be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so."
96. The afore elicited material major contradictions, severe infirmities, improvements, omissions and embellishments embodied in the testimonies of approver witnesses PWs 1, 2 and 3 bring these approver witnesses in the category of wholly unreliable witnesses as categorized by their Lordship in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614. Accordingly, this Court has to be circumspect and has to look for corroboration, independent of sources which are likely to be tainted, by reliable testimonies, direct or circumstantial to base conviction of A1 on such testimonies of approvers PWs 1,2 and 3.
RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 78/83 CBI vs Ram Prakash
97. Appraisal of testimonies of approver witnesses PW1, PW2 and PW3 reveals them to be inherently incredible discrepant; not only inter se contradictory but as well as self contradictory; selfexculpatory in nature; suffering from severe infirmities, improvements, omissions, embellishments, material major contradictions on material aspects inter alia including demand of the alleged bribe sum, obtaining/ securing/gaining of the alleged bribe sum, acceptance of the alleged bribe sum, place of the delivery of the alleged bribe sum by PW3 to PW1 for A1, the mode and manner of delivery of alleged bribe sum; in the backdrop of the fact that on record there is no evidence, direct or circumstantial in nature, independent of sources which are likely to be tainted, so as to corroborate in any material particulars any of the material facts borne out of tainted evidence of these approvers, so as to confirm that the charged offences were committed on the asking of A1 or it was A1 who committed the charged offences or that A1 was in any way connected with the crime of taking of any alleged bribe sum of Rs 5 lakhs by PW1 from PW3 or on the asking of A1, PW1 had so collected the alleged bribe sum from PW3. On record, no act of A1 is proved by oral or documentary evidence, showing or forbearing to show that in the exercise of his officials functions, A1 favoured or disfavoured MEIL or its employees including PW2 and PW3 or disfavoured to any person or rendered or attempted to render any service to MEIL or its employees including PW2 and PW3 or disservice to any person. The evidence of one approver amongst PW1, PW2 and PW3 cannot be corroborated by RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 79/83 CBI vs Ram Prakash the evidence of another approver/accomplice amongst PW1, PW2 and PW3. [See cases {1} Chonampara Chellappan (Supra) and {2} Bachcha Babu (Supra)].
98. It was held in case of Mohinder Lal Bagai (Supra) that payment of sum to public servant, whether paid before or after doing of official act, would constitute bribe. It was held in case of Mehta Rasiklal Baldevdas (Supra) that public servant need not have power to perform act or favour. It was held in case of Chaturdas Bhagwandas Patel (Supra) that where the prosecution has proved that accused had accepted a gratification of an amount which was not his legal remuneration from giver of money, then statutory presumption under section 4(1) of Prevention of Corruption Act 1947 (analogus to section 20 of Prevention of Corruption Act 1988) was attracted and burden shifts upon accused to show that he had not accepted such money as a motive or reward such as is mentioned in section 161 of Indian Penal Code. In the case of Dalpat Singh (Supra), it was held that the evidence on record clearly showed that neither the appellants/accused intended to show any official favour to the persons from whom they extorted money or valuable things, nor those persons expected any official favour from them; they paid the amounts in question solely with a view to avoid being illtreated or harassed. It was held in case of Kishan Narain (Supra) that a person whose evidence is false or evasive in part, on a RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 80/83 CBI vs Ram Prakash most minor and irrelevant part of the case, may be perfectly reliable in another part of the case. AIR 2004 SC 86 was overruled by AIR 2005 SC 2622, titled Standard Chartered Bank & Ors vs Directorate of Enforcement. It was held in AIR 2005 SC 2622 that there is no immunity to companies from prosecution merely because it is in respect of offences for which punishment of imprisonment is mandatory and in such cases, in lieu of imprisonment, fine can be imposed. Precedents relied upon by the prosecution are of no help to it to secure conviction for A1.
99. The shaken and uncorroborated testimonies of approver witnesses PW1, PW2 and PW3, which are wholly unreliable, not confirming with collateral circumstances as well as probabilities, but shrouded with grave suspicion and serious doubts, narrating even the scene of crime in contradiction with each other, lead me to conclusion that it would be extremely hazardous to place implicit reliance on such shaken testimonies of approver witnesses PW1, PW2 and PW3 as from their testimonies it is not feasible to separate truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is discard the tainted evidence of PW1, PW2 RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 81/83 CBI vs Ram Prakash and PW3 in toto, relying upon the pronouncements in the cases of Dalbir Singh (Supra); Zwieolae Ariel (Supra) and Balaka Singh (Supra). The material major contradictions, improvements, omissions, severe infirmities, discrepancies and embellishments embedded in the testimonies of the approver witnesses PW1, PW2 and PW3 have corroded the credibility and trustworthiness of these witnesses and these testimonies cannot be made basis to convict A1 in the absence of corroboration in material particulars from reliable testimony, direct or circumstantial, independent of sources which are likely to be tainted, for the serious offences in question; in the backdrop of elicited unfair investigation of this case conducted contrary to the law, procedure established and provisions of Manual of Central Bureau of Investigation and provisions of Vigilance Manual of Central Vigilance Commission which unfair investigation had caused serious prejudice to the accused at all stages of preliminary inquiry (not conducted), inquiry, investigation and trial.
100. Lack of fairness apparent on part of the concerned officers of premier investigating agency in investigation of this matter merits deprecation. Instead of having allowed A1 to put his bones to rest after his superannuation from the post of Director General, Service Tax, Mumbai, he was presented with the case in hand against him six months later as like a retirement gift by the premier investigating agency as a consequence of its lackadaisical investigation in this case. Inescapable RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 82/83 CBI vs Ram Prakash conclusion on entire aforesaid discussion is that the prosecution has failed to prove its case against A1 beyond reasonable doubt. Accordingly accused Ram Prakash (A1) is held not guilty and acquitted for the offences charged. His bail bond is cancelled. Surety is discharged.
101. For want of requisite certificate of the Public Prosecutor of Central Bureau of Investigation in terms of Section 308 of Code of Criminal Procedure that any of the approver(s) PW1, PW2 and PW3 had violated the condition of the tender of pardon(a) by concealing anything essential, or (b) giving false evidence, at such examination under section 306(4)(a) of Code of Criminal Procedure; prosecution of any of the approvers amongst PWs 1,2 and 3 cannot be initiated for his/their trial.
102. A copy of judgment be given to the Central Bureau of Investigation free of cost.
103. Ahlmad is directed to page and bookmark the file as per the latest circular so as to enable digitization of the entire record.
104. File be consigned to record room.
(Gurvinder Pal Singh) Announced in open court Special Judge (PC Act)(CBI)6, today i.e., 24/09/2013 Patiala House Court, New Delhi. Deepika RC No. AC02/(A)/2010 CBI/ACUVII/NEW DELHI CC No. 45/12 83/83