Cbi vs . Sh. Ashutosh Verma & Ors. Page 1 Of 160 on 1 April, 2021

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Delhi District Court

Cbi vs . Sh. Ashutosh Verma & Ors. Page 1 Of 160 on 1 April, 2021

      IN THE COURT OF Sh. ARUN BHARDWAJ, SPECIAL JUDGE
         (PC ACT) (CBI05), ROUSE AVENUE DISTRICT COURT,
                             NEW DELHI.


RC. 1A/2008/ACI/CBI/New Delhi.
CC No. 192/19.
CNR No. DLCT110010262019.

Central Bureau of Investigation

Versus

1.      Sh. Ashutosh Verma
        S/o Sh. Ram Naval Verma
        R/o Khasra No. 683, Karan Singh Farm,
        Shivji Marg, Westend Greens,
        Near Farms 36 & 37, Rangpuri,
        South West Delhi, Delhi110037             ....Accused No. 1

2.      Sh. Suresh Nanda,
        S/o Late Sh. S.M. Nanda
        R/o H.No. 4, Prithviraj Road, New Delhi    ....Accused No. 2

3.      Sh. Sanjeev Nanda
        S/o Sh. Suresh Nanda
        (Discharged vide order dated 05.11.2015)
        R/o D104, Defence Colony, New Delhi.      ....Accused No. 3

4.      Sh. Bipin Shah S/o Sh. Babubhai Shah
        R/o 232, 23rd Floor, Antariksh Apartment,
        Behind Sidhivinayak Temple, Prabha Devi,
        Dr. Kaka Sahib Godgill Marg,
        Dadar (West) Mumbai                       ....Accused No. 4

Filed on:                30.11.2012
Decided on:              01.04.2021


CBI vs. Sh. Ashutosh Verma & Ors.                            Page 1 of 160
                                     JUDGMENT

A-      FIR (Page No. 3).

B-      Chargesheet (Page No. 6).

C-      Prosecution Evidence (Page No. 20).

D-      Statements u/s 313 Cr.P.C. (Page No. 24)

E-      Defence Evidence (Page No. 24).

F-      Points for determination:

(i)    Whether CD, Ex. PW21/5, containing 134 recorded

conversations and SMSs is admissible? (Page No.26)

(ii) Whether CD, Ex. PW21/12, containing 32 recorded calls is admissible? (Page No.92)

(iii) Whether CCTV Footage of 04.03.2008 at Intercontinental Hotel, Nehru Place, New Delhi, Ex. PW13/3 is admissible? (Page No.94)

(iv) Whether recorded conversation of 04.03.2008 at Intercontinental Hotel, Nehru Place, New Delhi is admissible? (Page No.98)

(v) Whether A2 Sh. Suresh Nanda being an NRI and not taxable in India during the relevant years would have gained by seeking favour from A1 Sh. Ashutosh Verma for diluting the Appraisal Report? (Page No.106) CBI vs. Sh. Ashutosh Verma & Ors. Page 2 of 160

(vi) Whether A1 Sh. Ashutosh Verma had diluted Appraisal Report on receiving illegal gratification from A2 Sh. Suresh Nanda through A4 Sh. Bipin Shah? (Page No.112)

(vii) Whether the Appraisal Report given by A1 Sh. Ashutosh Verma had only a limited role in the income tax assessment of A2 Sh. Suresh Nanda and as such there is no motive or reward involved in the case? (Page No.124)

(viii) Whether A1 Sh. Ashutosh Verma made corrections in the Appraisal Report on his laptop as asked for by A4 Sh. Bipin Shah? (Page No.127)

(ix) Whether A1 Sh. Ashutosh Verma had incorporated any chart 'as it is' in the Appraisal Report as given by A4 Sh. Bipin Shah? (Page No.128)

(x) Whether Goa property is purchased benami by A1 Sh.

Ashutosh Verma from bribe received from A2 Sh. Suresh Nanda through A4 Sh. Bipin Shah? (Page No.129)

(xi) Whether Charge under Section 120B of IPC is proved against all the accused? (Page No.142)

(xii) Whether sanction to prosecute A1 Sh. Ashutosh Verma under Section 7 of P.C. Act is valid? (Page No.155)

(xiii) Whether Charge under Section 12 of PC Act is proved against A2 Sh. Suresh Nanda and A4 Sh. Bipin Shah? (Page No.156)

(xiv) Whether Charge under Section 7 of PC Act read with Section 120B of IPC is proved against all the accused? (Page No.156)

(xv) Whether sanction was required under Section 197 Cr.P.C. to prosecute A1 Sh. Ashutosh Verma for the offence of conspiracy u/s 120B of IPC? (Page No.156) CBI vs. Sh. Ashutosh Verma & Ors. Page 3 of 160

1. FIR On 08.03.2008, at 1115 hours, FIR RCAC1 2008 A0001 was registered under Section 120B read with Section 201 (causing disappearance of evidence of offence or giving false information to screen offender), Section 204 (destruction of document of electronic record to prevent its production as evidence) and Section 218 (Public servant framing incorrect record or writing with intent to save person from punishment or property from forfeiture) of IPC and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act,1988 by Sh. Ramnish SP, CBI.

2. There were four suspects, 1st Sh. Ashutosh Verma, IRS, Deputy Director (Investigation), Income Tax Department, New Delhi (Public Servant), 2nd Sh. Suresh Nanda and 3 rd his son Sh. Sanjeev Nanda, both businessmen and 4 th Sh. Bipin Shah, the Chartered Accountant of Accused No. 2 and Accused No. 3 (Private Persons).

3. The allegations in the FIR were that all the four suspects named above entered into a criminal conspiracy to manipulate report of Income Tax Investigation to show undue favour to Sh. Suresh Nanda and his associates by abuse of official position by public servant for obtaining pecuniary advantage.

4. It is further recorded in the FIR that the Directorate of Income Tax Investigations, New Delhi had conducted searches at the premises of Sh. Suresh Nanda and his associates in the year 2007 leading to recovery of large number of incriminating evidence against Sh.

CBI vs. Sh. Ashutosh Verma & Ors. Page 4 of 160

Suresh Nanda and his associates related to evasion of income tax as well as their involvement in the defence deals as middlemen and other related matters.

5. According to the FIR, the information further revealed that Sh.

Ashutosh Verma, on being approached by Sh. Bipin Shah, on the directions of Sh. Suresh Nanda and Sh. Sanjeev Nanda, demanded and accepted huge amount of illegal gratification as pecuniary advantage and agreed to manipulate the report by abusing his official position by withholding/destroying incriminating evidence which came to his knowledge during investigation for the purpose of not only minimizing the income tax liabilities but also to shield Sh. Suresh Nanda, an alleged defence middlemen and his associates from prosecution in the ongoing investigations of cases by Central Bureau of Investigation and other agencies related to defence deals and other related matters.

6. It was also recorded in the FIR that as per information, Sh.

Ashutosh Verma had shown the report prepared by him to Sh. Bipin Shah on his laptop and carried out the necessary changes in the report on the directions of Sh. Suresh Nanda and his son Sh. Sanjeev Nanda for diluting the same as well as for withholding/destroying the incriminating evidence before submitting the same to his senior officers in view of huge pecuniary advantage obtained by him.

7. The FIR was marked to Inspector Ram Singh for investigation.

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8. Arrest of the Accused On the same day i.e. 08.03.2008, all the aforesaid four suspects were arrested while holding meeting in Room No. 161, Hotel J.W. Marriott, Mumbai at 08.45 p.m. They were produced before the learned Special Judge constituted under the Prevention of Corruption Act, 1988 at Bombay for seeking transit remand up to 11.03.2008 for producing them before the Ld. Special Judge, CBI, Patiala House, New Delhi.

9. The case of CBI, as is recorded in this order of transit remand, was that the accused had entered into a criminal conspiracy for the purpose of manipulating the report of Income Tax Investigation being conducted by A1 Sh. Ashutosh Verma to show undue favour to A2 Sh. Suresh Nanda, by abusing his official position.

10. The transit remand was ordered by the learned Special Judge upto 11.03.2008.

11. The accused were produced before the Ld. Special Judge, New Delhi on 11.03.2008 and on that day, application was filed seeking their police remand which was granted till 14.03.2008.

12. The bail applications filed by all the four accused were dismissed by the Ld. Special Judge, vide order stated 05.04.2008.

13. Thereafter, the accused were remanded to judicial custody from time to time till they were granted bail by the Hon'ble Delhi High Court vide orders dated 29.04.2008.

CBI vs. Sh. Ashutosh Verma & Ors. Page 6 of 160

14. Chargesheet On completion of investigation, chargesheet was filed by now DySP Ram Singh against all the four accused under Section 120B of IPC, Section 7, 11 and 12 of the Prevention of Corruption Act, 1988 before the Ld. Special Judge on 30.11.2012 i.e. after four years and eight months of the registration of FIR.

15. As per chargesheet, A1 Sh. Ashutosh Verma, Deputy Director (investigation), Directorate of Income Tax Investigation had conducted searches at the premises of A2 Sh. Suresh Nanda in February 2007 and Appraisal Report of the search and seizure of incriminating documents was under preparation with him.

16. A2 Sh. Suresh Nanda is ChairmancumManaging Director of various companies run by his associates. He is heavily involved in brokering defence deals in the Department of Defence Production and Supplies. A3 Sh. Sanjiv Nanda is the son of A2 Sh. Suresh Nanda.

17. A4 Sh. Bipin Shah, a chartered accountant by profession had approached A1 Sh. Ashutosh Verma on behalf of an A3 Sh. Sanjiv Nanda to minimize the income tax liabilities after obtaining huge illegal gratification from A2 Sh. Suresh Nanda and A3 Sh. Sanjiv Nanda.

18. As a part of this conspiracy, the chargesheet alleges that A1 Sh.

Ashutosh Verma had shown the Appraisal Report prepared by him to A4 Sh. Bipin Shah on his laptop and carried out the necessary changes in the report as per the directions of A2 Sh. Suresh CBI vs. Sh. Ashutosh Verma & Ors. Page 7 of 160 Nanda and his son A3 Sh. Sanjiv Nanda for diluting the same as well as for withholding/destroying the incriminating evidence before submitting the same to his senior officers.

19. The chargesheet also alleges that one chart was submitted by A4 Sh. Bipin Shah which was given to A1 Sh. Ashutosh Verma and the same was incorporated by him in the Appraisal Report without any changes.

20. The chargesheet alleges three meetings between A1 Sh.

Ashutosh Verma and A4 Sh. Bipin Shah at (i) Ashok Hotel cafeteria on 22.02.2008 (ii) Golf Link on 23.02.2008 and (iii) Hotel Intercontinental Eros, Nehru Place on 04.03.2008 for discussing insertion/deletion/drafting of various facts in the Appraisal Report.

21. The chargesheet is relying on 134 incriminating telephonic conversations and SMSs duly intercepted for the period from 08.02.2008 to 08.03.2008 received from Special Unit, CBI, New Delhi which had conducted legal technical surveillance of telephone/mobile calls of the mobile numbers/landline numbers of the accused persons.

22. Besides these conversations and SMSs, the chargesheet is also relying on 32 incriminating conversations for the period from 8th February 2008 to 08.03.2008 showing the discussion about the Morgim land, Goa between A1 Sh. Ashutosh Verma and other persons including the prosecution witnesses Sh. Nikhil Nanda and Sh. Rajendra Kashyap.

CBI vs. Sh. Ashutosh Verma & Ors. Page 8 of 160

23. Prosecution is also relying on a CD ROM provided by a source containing the conversation between Sh. Ashutosh Verma and Sh. Bipin Shah during their meeting at Hotel Intercontinental Eros at Nehru Place, New Delhi on 04.03.2008. As per prosecution, this recording clearly establishes huge illegal gratification was obtained by Sh. Ashutosh Verma from the Nandas. The CFSL report has positively confirmed on the veracity and accuracy of the recording contained in the CD.

24. As per the chargesheet, A1 Sh. Ashutosh Verma was using mobile phone 9810433011 which is in his name and he was also using another mobile No. 9871370725 in the name of his personal driver Sh. Sudama Singh. A4 Sh. Bipin Shah was using mobile No. 9818993449 in the name of Hotel Claridges and another mobile No. 992002209.

25. Prosecution is relying on Call No. 13 dated 17.02.2008 when A4 Sh. Bipin Shah contacted A1 Sh. Ashutosh Verma for discussing something urgent.

26. As per Call No.14, A1 Sh. Ashutosh Verma called back A4 Sh.

Bipin Shah when they discussed about Appraisal Report and pressure from Nandas to finalize the same as early as possible.

27. They decided to meet next week in Delhi.

28. Further, as per Call No. 19 dated 19.02.2008, A3 Sh. Sanjiv Nanda spoke to A4 Sh. Bipin Shah regarding income tax CBI vs. Sh. Ashutosh Verma & Ors. Page 9 of 160 proceedings and was informed that A4 Sh. Bipin Shah was visiting Delhi that weekend in this regard.

29. The next relied upon call is call No. 29 between A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah on 22.02.2008 about arrival of A4 Sh. Bipin Shah at Delhi.

30. As per call No. 40, they decided to meet at Asoka coffee shop.

31. For the 2nd meeting between A1 Sh. Ashutosh Verma and A4 Sh.

Bipin Shah at Golf Links Guest House of M/s. Gammon India Ltd. of one Sh. Abhijit Ranjan on 23.02.2008, reliance is placed on Call Nos. 55, 60, 61, 63, 64 and 65.

32. In this regard, reliance is also placed on Call No.66 dated 23.02.2008 between A3 Sh. Sanjiv Nanda and A4 Sh. Bipin Shah to enquire about the outcome of meeting of A4 Sh. Bipin Shah and A1 Sh. Ashutosh Verma.

33. In Call No. 68 dated 24.02.2008 A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah are discussing about more comfort in summary part about total investment to restrict the same to Rs.10 Crores rather than the total investments. The recorded conversation is as under: " BS हहह जज (Haan ji) can we talk or can we meet AV Any issues BS Yes some more comfort are required BS The comfort required AV In the sense?

          BS            In summary part to say that total investments


CBI vs. Sh. Ashutosh Verma & Ors.                                        Page 10 of 160
           BS            If we can restrict it to those ten crores and other things
                         rather than the total investments related
          AV            अचछह (Aacha), you discussed
          AV            It will be difficult to you know not comment anything
          BS            हह ह (Hu) like in respective chapter fine
          AV            O.K. fine
          BS            And even in the summary, the correlation to his activity
          AV            Let me think over it. I will call you in one hour"

34. Reliance is placed on Call No. 69 also between these two Accused. The recorded conversation is as under: "BS सर ककसस करस (Sir kaise kare) AV हहसतह हक (Hasta hai) BS I will tell you briefly BS What this thing _ some dilution, on his published activity AV O.K. BS Secondly if his other activities oasis, real estate, software, media, commodities, iron ore, food stuffs, if that can be brought on forth AV O.K. BS Whereby there is a dilution on his published activities.

        AV              O.K.
        BS              Then
        AV              O.K. O.K.
        BS              Then if we can bring that structure which is above this
                         one UVF and then say he has only 20%
        AV              हह ह हह ह हह ह (Hu Hu Hu)
        BS              So that even if somebody has to take a farfetched
                         stand prima facie
        AV              उ
        BS              It will still be restricted to 20% otherwise he will say it

will be a reaffirmation of other departments view.

        AV              O.K.
        BS              And his other company like this RTC and उसमस (usme)
                         that it is his controlled company

CBI vs. Sh. Ashutosh Verma & Ors.                                        Page 11 of 160
         AV              उउ
        BS              That if we can leave, neutral on that
        AV              हह ह हह ह (Hu Hu )
        BS              Again that has published angle
        BS              Yea
        AV              You proceed, as it is not getting finalized today itself
        BS              हहह हहह (haan haan)
        AV              We have time still available
        BS              Yes
        AV              I will look into it and tell you over telephone
        BS              O.K. O.K. May be I will plan another next weekend.
        AV              O.K."

35. The chargesheet is also relying on call No. 70 and 71 from A4 Sh.

Bipin Shah sending SMSs to A2 Sh. Suresh Nanda and A3 Sh. Sanjiv Nanda mentioning:

"Receptive to request for modification and suggested changes. Still have some time to incorporate changes".

36. The chargesheet is also referring to call No. 72 dated the 25.02.2008 between A4 Sh. Bipin Shah and A2 Sh. Suresh Nanda where the former was assuring the later that he (Sh. Ashutosh Verma) was receptive and was told what they were looking for. The recorded conversation is as under: "SUN Good Morning, Suresh. We never met after that. I got your SMS. Is there anything to be briefed, or .......... BS No I have told him what we are looking for, and .......... BS As he mentioned he was receptive. He said still there is time.

SUN But you are coming back again or something BS He was receptive and it was not quite difficult"

CBI vs. Sh. Ashutosh Verma & Ors. Page 12 of 160

37. As per call No. 79 dated 03.03.2008 between A4 Sh. Bipin Shah and A1 Sh. Ashutosh Verma, they had decided to meet again. The recorded conversation is as under: "BS Yes, I am back in Bombay, सर ससच रहह थह कक एक कदन कस ललए आनह चहहतह थह (Sir soch raha tha ki eak din ke liye aana chahta tha) AV आ जहइयस (Aa jaiye) BS कब रखस (kab rakhe) AV जब कभज मन हस. (Jab kabhi man ho.) Everything else has been incorporated BS O.K. AV Except for that."

38. Reliance is also placed on call No. 80 and 82 of 03.03.2008 between these two accused. The recorded conversation is as under: "BS तस (to) reconciled तस आज भज आयह थह छसटट कह कक एक दफस तटम हज आ जहओ तस (toh aaj bhi aaya tha chotu ka ki eak dafe tum hi aa jao to) final हस जहए (ho jaye) AV तस बहकक तस सब हस हज चटकह हक (toh baaki toh sab ho hi chuka hai) Nothing remains to be done BS हहह पर उनकस तसलज हस जहएगज, और कटछ नहह (Haan par unko tasalli ho jaigi, aur kuch nahi) AV चललए ठजक हक ठजक हक (chaliye thik hai thik hai) BS इसकस ललए यस चहहतह थह कक (iske liye yeh chahta tha ki) may be one or two hours on whichever date BS Correct you said rest of the things are in place under and they should not have AV For that you will have to assure them BS तस ठजक हक सर हम हज कर ललगस (toh thik hai sir hum hi kar lenge) "AV We will discuss in detail tomorrow (from Call No. 82)."

CBI vs. Sh. Ashutosh Verma & Ors. Page 13 of 160

39. Reliance is placed on call No. 84 and 86 of 03.03.2008 and 04.03.2008 respectively regarding meeting at Hotel Park Royal at Nehru Place.

40. Similarly, Call Nos. 92 and 93 are also regarding the meeting between these two accused at Hotel Park Royal at Nehru Place where they met at Room No. 817.

41. In this meeting, A1 Sh. Ashutosh Verma told A4 Sh. Bipin Shah that his Director Sh. Handa had pointed out that the Appraisal Report has been diluted by Sh. Ashutosh Verma. He further informed A4 Sh. Bipin Shah that the Appraisal Report has been accepted by Sh. Handa in spite of its dilution.

42. Call No. 105 dated 05.03.2008 between A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah is about submission of appraisal report after changes as per discussion. They also discussed about meeting at Mumbai and in this call A1 Sh. Ashutosh Verma is thanking A4 Sh. Bipin Shah on behalf of his wife for some articles gifted by him to A1 Sh. Ashutosh Verma.

43. The chargesheet further mentions that all the four accused were having a meeting at Hotel J.W. Marriott at Mumbai on 08.03.2008 where A1 Sh. Ashutosh Verma had come from Goa to attend the meeting. The purpose of this meeting at Mumbai was to make A2 Sh. Suresh Nanda aware about the benefits given to him by A1 Sh. Ashutosh Verma through A4 Sh. Bipin Shah.

CBI vs. Sh. Ashutosh Verma & Ors. Page 14 of 160

44. At this stage, all the four accused were arrested from the said hotel room while they were conducting the meeting.

45. Next, the chargesheet deals with the benami investment of Sh.

Ashutosh Verma out of ill gotten money received from Nanda's.

46. The chargesheet alleges that during the period February 2008 when A1 Sh. Ashutosh Verma was seized of the Appraisal Report of Nanda's, a deal was finalized for purchase of a plot of land measuring 11,615 sq. mtr. at Morgim village, Goa from Sh. Pradeep Sahni at a cost of Rs.4.40 Crores through Sh. Rajinder Kashyap.

47. Out of this amount, a sum of Rs.2.40 Crores was paid in cash and delivered through Sh. Rajinder Kashyap and Sh. Jawahar Gautam. This payment was given to them by Sh. Nikhil Nanda out of the cash of A1 Sh. Ashutosh Verma temporarily parked with Sh. Nikhil Nanda, his friend.

48. However, after the arrest of A1 Sh. Ashutosh Verma, Sh. Rajinder Kashyap never discussed about the deal with Sh. Pradeep Sahni or Sh. Ashutosh Verma.

49. In December 2008, Sh. Ashutosh Verma requested Sh. Nikhil Nanda to arrange an entry of Rs.2 Crores in the name of M/s. Nitya Resort Private Ltd. This entry was arranged through Sh. Ajai Kumar Gupta, Sh. Ravinder Kumar Aggarwal and Sh. Vineet Khaitan.

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50. The chargesheet mentions that Sh. Amit Saxena is the owner of M/s. Nitya Resorts Private Ltd and one Sh. Deepak Chawla is a common friend of Sh. Ashutosh Verma. The statements of Sh. Deepak Chawla, Sh. Nikhil Nanda, Sh. Ravinder Aggarwal and Sh. Ajai Kumar Gupta have been recorded by CBI during investigation under Section 164 of Cr.P.C.

51. In paragraph 16.41, 16.42 and 16.43 of the chargesheet, further transactions with regard to property at Goa have been mentioned as under: "16.41 Investigation has revealed that in the year 2010, Sh. Ashutosh Verma (A1) contacted with Corporate Professionals for seeking advise on the following legal secretarial work:

1. Search Report of Whitening Expression Pvt. Ltd.

2. Transfer of 1,75,000 share from Nitya Resort to Whitening Expression Pvt. Ltd.

3. Search Report of Nitya Resort

4. Sh. J L Gautam to resign from Nitya Resort

5. Appointment of another director (employee of D.C.) 16.42 Sh. Ashutosh Verma (A1) discussed with him the above things and after having discussion the following matter was prepared by him and forwarded to Sh. Arun Gupta through email:

1. Search Report of Whitening Exp Laboratories Pvt. Ltd.

A. Whitening (Related Co.) is intending to acquire the 1,75,000 shares of Nitya CBI vs. Sh. Ashutosh Verma & Ors. Page 16 of 160 Resorts from the original allottees before 1 st June, 2010 at their face value.

B. After the transfer, AV [Ashutosh Verma (A1)] would be having around 83.33% of Nitya Resorts.

                                    C.    Further share holding of AV to be
                                    increased to more than 90% keeping CLB
                                    in view.

                      2.            Search Report of Nitya Resorts Pvt. Ltd.

             16.43         Investigation has revealed that in the

month of March, 2010, an amount of Rs.17.50 lacs were transferred through RTGS from the a/c of M/s Kashyap Vehicles Works Pvt. Ltd. (M/s KVWPL) to the account of four Kolkata based companies. The authorized signatory, as per Board of Directors in M/s Kashyap Vehicles Works Pvt. Ltd., was Smt. Pallavi Verma w/o Sh. Ashutosh Verma (A1). It is revealed during investigation and even stated by Sh. Jawahar Gautam, Accountant of M/s KVWPL that KVWPL was about to purchase the shares of M/s Nitya Resort Pvt. Ltd. it is also on record that Sh. Jawahar Gautam and Sh.

Deepak Chawla both were appointed as Directors of M/s Nitya Resort Pvt. Ltd. on 21.12.2009 by Sh. Ashutosh Verma (A1). The above developments clearly shows the interest of Sh. Ashutosh Verma (A1). The above developments clearly shows the interest of Sh. Ashutosh Verma (A1) for purchase of the share of M/s Nitya Resort Pvt. Ltd. It is important to mention here that Sh. Ashurosh Verma (A1) was under suspension during this period and had taken up this assignment in the name of his wife and his father, there after all the further dealing were handled by Ashutosh Verma (A1) himself.

CBI vs. Sh. Ashutosh Verma & Ors. Page 17 of 160

52. After taking sanction to prosecute A1 Sh. Ashutosh Verma for the offence under Section 7 and 11 of the Prevention of Corruption Act, 1988 present chargesheet was filed alleging offence punishable under Section 120B of IPC read with Sections 7, 11 and 12 of the Prevention of Corruption Act, 1988 against all the accused.

53. A1 Sh. Ashutosh Verma was charged with substantive offence under Section 7 and 11 of the Prevention of Corruption Act.

54. The remaining three accused were charged for the substantive offence under Section 12 of the Prevention of Corruption Act, 1988.

55. When the accused appeared before this court they were supplied some more documents besides those part of the chargesheet in proceedings under Section 207 of Cr.P.C. However, the matter was taken to Hon'ble Delhi High Court by A1 Sh. Ashutosh Verma in Criminal M.C. No. 79/2014 which was decided on 04.12.2014 and it was directed that the statements of prosecution witnesses which were not relied on by the prosecuting agency and other documents be also provided to the accused. Para29 of the said judgment is as under: "29. Consequently, the petition is allowed. The respondent is directed to supply copy of statements under Section 161(3) of Cr.P.C. of prosecution witnesses namely Rajpal Malik, Chhabi Lal and Vinit Khetan, Nikhil Nanda, Deepak Chawla, Ajay Kumar Gupta, Ravinder Aggarwal, Amit Saxena and Pradeep CBI vs. Sh. Ashutosh Verma & Ors. Page 18 of 160 Sahni as well as Directors of M/s. Blueview Commodities Pvt. Ltd, M/s Kush Hotels and Resorts Pvt. Ltd., M/s Longview Infrastructure Pvt. Ltd., M/s Brijdham Properties & Estates Pvt. Ltd. and M/s Tolly Commercial Pvt. Ltd., as also the copies of the documents i.e. (i) Copy of the alleged 'Appraisal Report, of Sh. Suresh Nanda Group of Cases; (ii) Copy of the missing pages of the CDRs forming a part of D17 and listed in Annexure A herein; (iii) Copy of the complete and correct transcription of the alleged telephone calls and conversations as alleged by the CBI & (iv) Copy of the complete and unedited video footage as seized by the CBI as per Seizure Memo dated 14.03.2008 (marked as D19) to the petitioner to establish his defence."

56. After hearing arguments on charge, vide detailed order dated 05.11.2005, A3 Sh. Sanjiv Nanda was discharged of all the offences alleged against him in the chargesheet.

57. A1, A2 and A4 were charged under Section 120 B of IPC and under Section 7 and Section 13(1)(d) of the Prevention of Corruption Act, 1988 read with Section 120B of IPC.

58. A2 and A4 were charged under Section 12 of the PC Act read with Section 120B IPC.

59. A1 was charged under Section 7 and 13(1)(d) of PC Act and in alternative A1, A2 and A4 were charged under Section 15 of the PC Act, 1988 read with Section 120B IPC.

60. Since there was no sanction for prosecution for the offence under Section 13(1)(d) and Section 15 of the PC Act, 1988 when the CBI vs. Sh. Ashutosh Verma & Ors. Page 19 of 160 order was challenged before the Hon'ble Delhi High Court, the same was remanded back to this court for reconsidering the framing of charge.

61. Thereafter, the charge under Section 13(1)(d) and Section 15 of the PC Act, 1988 were dropped.

62. All the accused were charged for the offence under Section 120B of IPC and under Section 7 of the PC Act read with Section 120B of IPC.

63. A1 Sh. Ashutosh Verma was charged with the substantive offence under Section 7 of Prevention of Corruption Act, 1988.

64. A2 Sh. Suresh Nanda and the A4 Sh. Bipin Shah were charged with the substantive offence under Section 12 of the Prevention of Corruption Act, 1988.

65. Prosecution Evidence Prosecution examined sixty witnesses to prove its case. Few witnesses were dropped also. The Prosecution Evidence shall be discussed while dealing with points for determination. The prosecution witnesses can be categorized as under:

1. Meeting of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah at Hotel Ashok Coffee Shop on 22.02.2008: PW35 Sh. Sudama Singh (Private Driver of A1 Sh. Ashutosh Verma) and Call records.

CBI vs. Sh. Ashutosh Verma & Ors. Page 20 of 160

2. Meeting of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah at Golf Links: PW1 Sh. Bhuvnesh Kulshreshtha, PW3 Sh. Suresh Yadav, Caretaker of Guest House of M/s Gammon India Limited, PW6 Sh. Gulzar Ahmad (Driver for A4 Sh. Bipin Shah), PW15 Sh. K.S. Pandari, Assistant Manager, M/s Gammon India Limited and Call records.

3. Meeting of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah at Hotel Intercontinental Eros, Nehru Place, New Delhi: PW5 Sultan Singh (Official Driver of A1 Sh. Ashutosh Verma), PW13 Sh. Suresh Kumar Rajput, Sr. Security Officer in International Eros Hotel, Nehru Place, New Delhi and Call records.

4. Visit of A1 Sh. Ashutosh Verma to Goa on 05.03.2008 and from Goa to Mumbai on 08.03.2008: PW4 Sh. Sanjeev Mahindru and PW35 Sh. Rajesh Chaturvedi (Driver).

5. Witnesses from Income Tax Department: PW12 Sh. Shailender Handa [Director (Investigation)], Income Tax Department, PW18 Sh. G.K. Ravi (Income Tax Officer, Investigation Wing, Income Tax Department), PW20 Sh. S.S. Rathore [Director of Income Tax (Investigation)], PW36 Sh. Somnath Gauba (Income Tax Inspector) and PW58 Sh. S. Rehman [Additional Director, Income Tax (Investigation), New Delhi].

6. Witnesses from mobile service provider: PW8 Sh. Anand Singh (regarding Mobile No. 9818993449 in the name of Hotel CBI vs. Sh. Ashutosh Verma & Ors. Page 21 of 160 Claridges and alloted to A4 Sh. Bipin Shah and Mobile No. 9910487945 allotted to Chairman of Hotel Claridges), PW14 Sh. Ajay Kumar, Nodal Officer of Airtel (regarding Mobile No. 9810035001 of A2 Sh. Suresh Nanda, 9910487945 of Hotel Claridges, 9810000035 of Sh. Sanjeev Nanda, 9810061739 of Hotel Claridges, 9871370725 of Sh. Sudama Singh (Driver of A1 Sh. Ashutosh Verma), 9810433011 of Sh. Ashutosh Verma, 9810061739 of A1 Sh. Ashutosh Verma and 9818993449 of Hotel Claridges, PW44 Major Charles Daniels for Mobile No. 9920002009 of A4 Sh. Bipin Shah.

7. Call recording: PW21 Sh. M.C. Kashyap (Special Unit, CBI, New Delhi), PW22 Sh. Yogender Kumar (witness of Refusal Memo of A1 Sh. Ashutosh Verma), PW49 Dr. Subrat Kumar Chaudhary (CFSL), PW53 Ms. Mandeep Bedi (for identifying voice of Sh. Sanjeev Nanda - discharged).

8. Arrest of Accused in Mumbai on 08.03.2008: PW27 Inspector V.M. Mittal, PW30 Sh. Rajender Yadav (Driver), PW31 SI Phephe (Independent witness), PW40 Sh. Abdul Majid (Driver), PW41 Sh. Surender Malik (Inspector, CBI), PW45 Sh. Rajesh Chaturvedi (Driver), PW46 Shakti Verma and PW51 Sh. Sandeep Kirjar (booking of room at J.W. Marriot Hotel, Mumbai).

9. Goa Property: PW10 Sh. Dinesh Kumar, Peon M/s J.H.S. Svendgaard, PW11 Sh. Chander Sahni, CA, Corporate professional, PW15 Sh. Gulshan Kumar Luthra (Independent witness of search at the premises of Sh. Anand Kashyap on CBI vs. Sh. Ashutosh Verma & Ors. Page 22 of 160 07.09.2010), PW16 Sh. Arun Gupta, Company Secretary, Corporate Professional, PW17 Sh. Ajay Kumar Gupta, CA, PW 19 Sh. Jawahar Gautam of Kashyap Motors, PW22 Sh. Nikhil Nanda, friend of A1 Sh. Ashutosh Verma, PW23 Sh. Rakesh Kumar Talwar (Independent witness of search conducted on 11.11.2011 at Mohan Cooprative Industrial Area of M/s J.H.S. Svendgaard of Sh. Nikhil Nanda, PW24 Sh. Deepak Chawla, PW 25 Sh. Madhur Jain from ICICI Bank, PW36 Sh. Amit Saxena of M/s Nitya Resorts Private Limited who purchased the property at Goa, PW29 Sh. Pradeep Sahni, Director of M/s Elliot Prima Resorts Pvt. Ltd., seller of property at Goa, PW32 Sh. Chanchal Bhattacharya of Axis Bank, PW33 Sh. Bhimaji G. Kularni from Bank of Baroda, PW34 Sh. Ravinder Kumar Aggarwal, PW37 Sh. Rajender Kashyap of Kashyap Motors, PW38 Sh. Pradeep Kumar Nayak from Vijaya Bank, PW39 Sh. H. Narayan Shetty from Vijaya Bank, PW42 Sh. Vijay Bahadur, who had conducted search on 07.09.2010, PW43 Ms. Renu Mishra, PW47 Sh. Siddharth Paroolkar (both for survey of property at Goa), PW48 Sh. Arun Rawat, who had conducted search at the premises of Sh. Nikhil Nanda at Mohan Cooperative Estate, New Delhi), PW54 Sh. Subodh Kumar, Independent witness of Memo dated 07.09.2008, PW55 Sh. Satish Gupta (for survey of property at Goa), PW57 Sh. K. Jagdeesh Rao from Vijaya Bank and PW60 Sh. Subodh Rastogi from Kotak Mahindra Bank Limited.

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10. Sanction of prosecution: PW7 Sh. Prashant Khambra of Income Tax Department.

11. Statements under Section 164 Cr.P.C.: PW52 Ms. Navita Bagha, Ld. MM and PW66 Sh. Arvind Bansal, Ld. MM.

12. Investigating Officer: DySP Ram Singh.

66. Statements under Section 313 of Cr.P.C. and Defence Evidence The response of the accused persons to the incriminating evidence against them shall be discussed while dealing with points for determination.

67. Defence Evidence So far as Defence Evidence is concerned, only A2 Sh. Suresh Nanda examined DW1, Sh. Ajay Wadhwa, CA and his evidence shall be discussed while dealing with points for determination.

68. Arguments were addressed by Sh. B.K. Singh, Ld. Sr. PP for CBI.

On behalf of A1, arguments were addressed by Ld. Sr. Advocate Sh. P.K. Dubey (who was designated as Ld. Sr. Advocate by the Hon'ble Delhi High Court during pendency of arguments before this court) assisted by Ld. Counsel Ms. Smriti Sinha. On behalf of A2 Sh. Suresh Nanda, arguments were addressed by Sh. Ramesh Gupta, Ld. Sr. Advocate assisted by Ld. Counsel Sh. Sandeep Kapoor. On behalf of A4 Sh. Bipin Shah, arguments were addressed by Ld. Counsel Sh. Anindiya Malhotra. Written arguments were also filed on behalf of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah. Copies of judgments relied on by the Ld. CBI vs. Sh. Ashutosh Verma & Ors. Page 24 of 160 Counsels for the accused were also filed. Rebuttal arguments were addressed by Sh. Atul Kumar and Sh. Mohd. Fareed, Ld. Sr. PPs for CBI. Thereafter, further written submissions were given on behalf of A1 Sh. Ashutosh Verma.

69. Points for determination A perusal of the chargesheet, evidence on record and arguments addressed, shows that there would be following points for determination:

(i) Whether CD, Ex. PW21/5, containing 134 recorded conversations and SMSs is admissible?

(ii) Whether CD, Ex. PW21/12, containing 32 recorded calls is admissible?

(iii) Whether CCTV Footage of 04.03.2008 at Intercontinental Hotel, Nehru Place, New Delhi, Ex. PW13/3 is admissible?

(iv) Whether recorded conversation of 04.03.2008 at Intercontinental Hotel, Nehru Place, New Delhi is admissible?

(v) Whether A2 Sh. Suresh Nanda being an NRI and not taxable in India during the relevant years would have gained by seeking favour from A1 Sh. Ashutosh Verma for diluting the Appraisal Report?

(vi) Whether A1 Sh. Ashutosh Verma had diluted Appraisal Report on receiving illegal gratification from A2 Sh. Suresh Nanda through A4 Sh. Bipin Shah?

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(viii) Whether A1 Sh. Ashutosh Verma made corrections in the Appraisal Report on his laptop as asked for by A4 Sh. Bipin Shah?

(ix) Whether A1 Sh. Ashutosh Verma had incorporated any chart 'as it is' in the Appraisal Report as given by A4 Sh. Bipin Shah?

(x) Whether Goa property is purchased benami by A1 Sh. Ashutosh Verma from bribe received from A2 Sh. Suresh Nanda through A4 Sh. Bipin Shah?

(xi) Whether Charge under Section 120B of IPC is proved against all the accused?

(xii) Whether sanction to prosecute A1 Sh. Ashutosh Verma under Section 7 of P.C. Act is valid?

(xiii) Whether Charge under Section 12 of PC Act is proved against A2 Sh. Suresh Nanda and A4 Sh. Bipin Shah?

(xiv) Whether Charge under Section 7 of PC Act read with Section 120B of IPC is proved against all the accused?

(xv) Whether sanction was required under Section 197 Cr.P.C. to prosecute A1 Sh. Ashutosh Verma for the offence of conspiracy u/s 120B of IPC?

70. Discussion of evidence, arguments addressed and case law cited on the points for determination (1) Whether CD, Ex. PW 21/5, containing 134 recorded conversations and SMSs is admissible?

71. There is serious challenge to the admissibility of the CD, Ex. PW 21/5, containing 134 recorded conversations and SMSs.

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72. The entire case of the accused persons hinges on their argument that the CD containing the recorded conversations is not admissible.

73. Further, their case is that the attendant circumstances are such that sanctity of CD is extremely compromised and not worth reliance in evidence. That is why they have not addressed any argument dealing with the contents of the conversations.

74. As per case of CBI, PW21 is Sh. M.C. Kashyap, DySP (Retd.) from Special Unit CBI, New Delhi. PW21 has deposed that in February 2008, certain telephone numbers of Sh. Suresh Nanda and others were put on surveillance after obtaining the permission of Union Home Secretary of India, by the Director of CBI. On receipt of the orders to intercept the calls of those numbers, he being the System Administrator acted upon those orders. However, the orders of Union Home Secretary dated 07.02.2008 and 28.02.2008 could not be exhibited as the letters were not marked to this witness in his official capacity and were therefore simply Marked PW 21/A and PW 21/B (D21). He deposed that in May 2008, on receipt of a letter from AC1, CBI, New Delhi, recording of 134 calls was handed over to the IO of the case through seizure memo dated 30.05.2008, Exhibit PW21/1 (D21). He deposed that the recordings of these 134 calls were burnt on two CDs. One of the said CD along with Recorded Call Information Report was kept in a packet and the same was sealed with the seal of Special Unit, CBI, New Delhi and handed over to the IO CBI vs. Sh. Ashutosh Verma & Ors. Page 27 of 160 through Seizure Memo Ex. PW21/1 (D21). The other CD along with Recorded Call Information Report was handed over to the IO for the investigating purposes. He deposed that on the same day, certificate under Section 65 B of the Evidence Act along with Annexure A in respect of aforementioned 134 calls was also given to the IO which were proved as Exhibit PW21/2 and Exhibit PW 21/3 (D62) respectively. The envelope in which this witness had sealed the CD and Recorded Call Information Report was proved as Exhibit PW21/4. He had identified his signatures 'across the envelope' at Point A. The CD bearing signatures of this witness was proved as Exhibit PW21/5. The specimen seal of SU was proved as Exhibit PW21/6 (D21).

75. The transcript of these conversations is D59, containing 134 recorded conversations and SMSs.

76. The voices of the persons whose conversations are recorded were identified by various prosecution witnesses.

77. PW1 Sh. Bhuvnesh Kulshreshtha (an Officer of Income Tax Department and acquaintance of A4 Sh. Bipin Shah, identified voice of A4 Sh. Bipin Shah in Call No. 46 dated 23.02.2008, Ex. PW1/1 and proved the transcript as Ex. PW1/2, Call No. 53 dated 23.02.2008, Ex. PW1/3 and proved the transcript as Ex. PW1/4, Call No. 54 dated 23.02.2008, Ex. PW1/5 and proved the transcript as Ex. PW1/6, Call No. 81 dated 03.03.2008, Ex. PW 1/7 and proved the transcript as Ex. PW1/8).

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78. PW3 Sh. Suresh Yadav (Care taker of the Guest House of M/s Gammon India Ltd., Golf Links, New Delhi) identified the voice of A4 Sh. Bipin Shah in Call No. 58 dated 23.02.2008, Ex. PW3/1 and proved the transcript as Ex. PW3/2.

79. PW18 Sh. G.K. Ravi (an official of Income Tax Department identified voice of A4 Sh. Bipin Shah and his voice in Call No. 1 dated 08.02.2008 and proved the transcript as Ex. PW18/1, voice of A4 Sh. Bipin Shah and his voice in Call No. 3 dated 08.02.2008 and proved the transcript as Ex. PW18/2, voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah in Call No. 14 dated 17.02.2008, voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah in Call No. 29 dated 22.02.2008 and proved the transcript as Ex. PW18/3, voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah in Call No. 40 dated 22.02.2008 and proved the transcript as Ex. PW18/4, voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah in Call No. 41 dated 08.02.2008 and proved the transcript as Ex. PW18/5, voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah in Call No. 63 dated 23.02.2008 and proved the transcript as Ex. PW18/6, voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah in Call No. 79 dated 03.03.2008 and proved the transcript as Ex. PW18/7, voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah in Call No. 80 dated 03.03.2008 and proved the transcript as Ex. PW18/8, voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah in Call No. 82 dated 03.03.2008 and proved the transcript as Ex. PW18/9, voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin CBI vs. Sh. Ashutosh Verma & Ors. Page 29 of 160 Shah in Call No. 86 dated 04.03.2008 and proved the transcript as Ex. PW18/10, voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah in Call No. 98 dated 04.03.2008 and proved the transcript as Ex. PW18/11, voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah in Call No. 105 dated 04.03.2008 and proved the transcript as Ex. PW18/12).

80. PW36 Sh. Somnath Gaba (an official of Income Tax Department), identified voice of A4 Sh. Bipin Shah and his voice in Call No. 2 dated 08.02.2008 and proved the transcript as Ex. PW36/1, Call No. 26 dated 21.02.2008 and proved the transcript as Ex. PW 36/2, voice of A1 Sh. Ashutosh Verma and his voice in Call No. 47 dated 23.02.2008 and proved the transcript as Ex. PW36/3, voice of A4 Sh. Bipin Shah and his voice in Call No. 74 dated 26.02.2008 and proved the transcript as Ex. PW36/4, voice of A1 Sh. Ashutosh Verma and his voice in Call No. 76 dated 27.02.2008 and proved the transcript as Ex. PW36/5, voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah in Call No. 14 dated 17.02.2008 and proved the transcript as Ex. PW36/6 and voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah in Call No. 105 dated 05.03.2008 and proved transcript as Ex. PW36/7.

81. PW46 Sh. Shakti Verma (an acquaintance of A4 Sh. Bipin Shah) who had booked room at JW Marriot, Mumbai for the meeting of the accused persons on 08.03.2008) proved voice of A4 Sh. Bipin Shah and his voice in Call No. 7 dated 09.02.2008 and proved the CBI vs. Sh. Ashutosh Verma & Ors. Page 30 of 160 transcript as Ex. PW46/6, voice of A4 Sh. Bipin Shah and his voice in Call No. 4 dated 09.02.2008 and proved the transcript as Ex. PW46/7, voice of A4 Sh. Bipin Shah and his voice in Call No. 5 dated 09.02.2008 and proved the transcript as Ex. PW46/8, voice of A4 Sh. Bipin Shah and his voice in Call No. 133 dated 08.03.2008 and proved the transcript as Ex. PW46/9.

82. PW53 Ms. Mandeep Bedi (Executive Secretary of Sh. Sanjeev Nanda, who had discharged vide orders dated 05.11.2015) proved voice of A4 Sh. Bipin Shah and her voice in Call No. 42 dated 22.02.2008 and proved the transcript as Ex. PW53/1, voice of A4 Sh. Bipin Shah and her voice in Call No. 49 dated 23.02.2008 and proved the transcript as Ex. PW53/2, voice of A4 Sh. Bipin Shah and her voice in Call No. 50 dated 23.02.2008 and proved the transcript as Ex. PW53/3, voice of A4 Sh. Bipin Shah and her voice in Call No. 83 dated 03.03.2008 and proved the transcript as Ex. PW53/4, voice of A4 Sh. Bipin Shah and her voice in Call No. 89 dated 04.03.2008 and proved the transcript as Ex. PW53/5, voice of A4 Sh. Bipin Shah and her voice in Call No. 92 dated 04.03.2008 and proved the transcript as Ex. PW53/6, voice of A4 Sh. Bipin Shah and her voice in Call No. 93 dated 04.03.2008 and proved the transcript as Ex. PW53/7, voice of A4 Sh. Bipin Shah and her voice in Call No. 95 dated 04.03.2008 and proved the transcript as Ex. PW53/8, voice of A4 Sh. Bipin Shah and her voice in Call No. 103 dated 05.03.2008 and proved the transcript as Ex. PW53/9.

CBI vs. Sh. Ashutosh Verma & Ors. Page 31 of 160

83. The prosecution has also proved Memo dated 13.03.2008 whereby A1 Sh. Ashutosh Verma refused to get his specimen voice recorded by the experts of CFSL, New Delhi as Ex. PW28/2 (D67).

84. Pursuant to Notice u/s 91 of Cr.P.C., PW14 Sh. Ajay Kumar, Nodal Officer of M/s Bharti Airtel, vide his letter dated 08.04.2008, Ex. PW14/1 (D17) provided the subscriber details, as per the records of Bharti Airtel Limited, as under:

1. 9810035001 Postpaid date of activation 19 May 1995 Suresh Nanda, 4, Prithviraj Road New Delhi110011

2. 9910487945 Postpaid date of activation 09 January 2006 Claridges Hotel Pvt. Ltd.

12, Aurangzeb Road, New Delhi110011

3. 9810000035 Postpaid date of activation 02 October 2000 Sanjiv Nanda C/o Sonnet System Pvt. Ltd.

12, Aurangzeb Road, New Delhi110011

4. 9810061739 Postpaid date of activation 03 December 2007 Claridges Hotel Pvt. Ltd.

12, Prithviraj Road New Delhi110011

5. 9871970725 Prepaid date of activation 12 March 2006 Sudama Singh LA Ratnagiri, Kaushambi, Ghaziabad CBI vs. Sh. Ashutosh Verma & Ors. Page 32 of 160

6. 9810433011 Postpaid date of activation 06 February 2001 Ashutosh Verma Income Tax Office L1101, Ratnagiri Kaushambi, Ghaziabad

7. 9818993449 Postpaid date of activation 25 September 2007 Claridges Hotel Pvt. Ltd.

12, Aurangzeb Road, New Delhi110011

85. During his evidence, CDR of Mobile No. 9810035001 (Sh. Suresh Nanda) from first January 2008 to 08.03.2008 was exhibited as Exhibit PW14/2 (D17), CDR for Mobile No. 9910487945 (Claridges Hotel) for the same period as Exhibit PW14/3 (D17), CDR for Mobile No. 9810000035 (Sh. Sanjeev Nanda) for the same period as Exhibit PW14/4 (D17), CDR for Mobile No. 9910061739 (Claridges Hotel) for the same period as Exhibit PW 14/5 (D17), CDR for Mobile No. 9871370725 (Sh. Sudama Singh) for the same period as Exhibit PW14/6 (D17), CDR for Mobile No. 9810433011 (Sh. Ashutosh Verma) for the same period as Exhibit PW14/7 (D17) and CDR for mobile No. 9818993449 (Claridges Hotel) for the same period as Exhibit PW14/8 (D17). However, they are not supported by Certificate u/s 65 B of Evidence Act.

86. PW24 Major Charles Daniels was the Nodal Officer in Vodafone, Mumbai in 2008. He had given letter dated 3 rd December 2008 to CBI, Exhibit PW44/1 (D26). He had provided original Customer CBI vs. Sh. Ashutosh Verma & Ors. Page 33 of 160 Agreement Form and call details in respect of mobile numbers 9920002009, 9920444837, 9920022003 and 9920022002. Certificate u/s 65 B of Evidence Act given by Sh. Changdeo Haribhau Godse dated 03.12.2008 was exhibited as Exhibit PW 44/2. He deposed that he had also provided original Customer Agreement Form of Sh. Bipin Shah to CBI through Exhibit PW 44/1 for mobile No. 9920022009, Exhibit PW44/3 along with PAN card and MTNL bill in the name of Sh. Bipin Shah.

87. PW35 Sh. Sudama Singh, the private driver of A1 Sh. Ashutosh Verma, has deposed that A1 Sh. Ashutosh Verma had once asked him to give his two photos and copy of his photo ID as he had assured that he will take a mobile number issued for his use. He however deposed that he was not given any mobile or SIM card by A1 Sh. Ashutosh Verma. This explains the use of mobile number 9871370725 in the name of Sh. Sudama Singh by A1 Sh. Ashutosh Verma.

88. Prosecution has, therefore relied on Ex. PW21/1(D21), seizure memo dated 30.05.2008 as per which CD Ex. PW21/5 containing 134 recorded conversations and SMSs was handed over by PW 21 of Special Unit to the IO. Prosecution has also relied on Certificate u/s 65 B of Evidence Act, Ex. PW21/2 in support of the CD containing recorded conversations and SMSs. Reliance is also placed on Annexure A, Ex. PW21/3 in respect of aforementioned 134 calls and SMSs. CBI is also relying on the envelope Ex. PW CBI vs. Sh. Ashutosh Verma & Ors. Page 34 of 160 21/4 in which PW21 had sealed the CD Ex. PW21/5 and Recorded Calls Information Report.

89. CBI is also relying on Ex. PW14/1, which is the letter giving subscriber details of seven mobile numbers in the name of A1 Sh. Ashutosh Verma, A2 Sh. Suresh Nanda, Sh. Sudama Singh (used by A1 Sh. Ashutosh Verma) and Claridges Hotel.

90. CBI is also relying on CDRs of the aforesaid mobile numbers as Ex. PW14/2 to Ex. PW14/8. However, they are not admissible in evidence in absence of Certificate u/s 65 B of Evidence Act.

91. CBI is also relying on the Voice Refusal Memo, Ex. PW28/1 (D

66) whereby A1 Sh. Ashutosh Verma had refused to give his sample voice.

92. CBI is also relying on the Customer Application Form in the name of A4 Sh. Bipin Shah for mobile no. 9920022009 as Ex. PW44/3.

93. CBI is relying on evidence of PW35 Sh. Sudama Singh in whose name A1 Sh. Ashutosh Verma had taken SIM card of the mobile no. 9871370725 and was being used by A1 Sh. Ashutosh Verma.

94. CBI is also relying on evidence of PW1 Sh. Bhuvnesh Kulshreshtha, PW3 Sh. Suresh Yadav, PW18 Sh. G.K. Ravi, PW36 Sh. Somnath Gaba, PW46 Sh. Shakti Verma and PW53 Ms. Mandeep Bedi for voice identification of the accused persons.

95. CBI is also relying on the transcripts detailed above.

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96. However, the Ld. Defence Counsels have minutely combed the entire evidence to show the deficiencies and contradictions in evidence, raising doubts to the sanctity of electronic data and have raised multiple legal objections and cited case law in support of their arguments that the electronic data is liable to be discarded being inadmissible evidence and for failing to inspire the confidence regarding its sanctity.

97. Reliance is placed on Ram Singh vs. Col. Ram Singh, 1985 Supp. SCC 611, which has laid down six conditions which must be satisfied in order for a recorded conversation to be admissible in evidence. These conditions are as under: "(1) The voice of the speaker must be duly identified by the maker of the record or by others who recognize his voice. In other words, it manifestly follows as a logical corollary that the first condition for the admissibility of such a statement is to identify the voice of the speaker. Where the voice has been denied by the maker it will require very strict proof to determine whether or not it was really the voice of the speaker. (2) The accuracy of the taperecorded statement has to be proved by the maker of the record by satisfactory evidencedirect or circumstantial.

(3) Every possibility of tampering with or erasure of a part of a taperecorded statement must be ruled out otherwise it may render the said statement out of context and, therefore, inadmissible.

(4) The statement must be relevant according to the rules of the Evidence Act.

(5) The recorded cassette must be carefully sealed and kept in safe or official custody.

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(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."

98. Reliance is also placed on Arjun Pandit Rao vs. Kailash Kushanrao Gorantyal, Civil Appeal No. 2407/18 dated 14.07.2020 to submit that before considering proof of a secondary electronic evidence, the mandatory certificate under Section 65B of the Evidence Act must be furnished as it is sine qua none for admissibility of secondary electronic evidence at trial.

99. The objection on behalf of Ld. Counsel for A1 Sh. Ashutosh Verma is that CBI has not filed Customer Application Form of Mobile No. 9810433011 in the name of A1 Sh. Ashutosh Verma and Mobile No. 9871370725 in the name of Sh. Sudama Singh.

100. This court has considered this objection.

101. However, a perusal of D17, Ex. PW14/1 shows PW14 has given the subscriber details as per the records of Bharti Airtel Limited for the Mobile No. 9810433011 as well as for mobile no. 9871370725. It has been explicitly mentioned about the type of SIM card i.e. whether it is prepaid or postpaid. The date of activation of SIM card is also clearly mentioned. The name and complete postal address of the subscriber is also mentioned in Ex. PW14/1.

102. The accused had an opportunity during recording of their statement u/s 313 of Cr.P.C. to atleast say that mobile no. 9810433011 is not registered in his name and he is not the CBI vs. Sh. Ashutosh Verma & Ors. Page 37 of 160 subscriber of the said mobile number. The accused only took the cover stating that Ex. PW14/1 is not admissible. He has spoken no further. If mobile no. 9810433011 is not registered in the name of Sh. Ashutosh Verma, the least that was expected of him was to say that the said mobile number is not registered in his name.

103. The defence of the accused is that Ex. PW14/1 is not admissible for the bar under Section 162 of Evidence Act (sic). Section 162 of Cr.P.C. directs that no statement made by any person to a police officer in the course of an investigation shall be signed by the person making it, if reduced to writing.

104. In the opinion of this court, the bar of Section 162 of Cr.P.C. will not apply to Ex. PW14/1, as it is not a statement made to a police officer. The same has been given in response to notice u/s 91 of Cr.P.C. and is not statement of PW14 made to the IO of the case which was reduced to writing and is signed. Therefore, the bar under Section 162 Cr.P.C. will not be attracted to Ex. PW14/1.

105. So far as the mobile number of Sh. Sudama Singh is concerned, the date of its activation is 12.03.2006. During his statement in the court, PW35 has stated that during 200708, he was driver of A1 Sh. Ashutosh Verma. Though, he has stated during investigation that he was employed by A1 Sh. Ashutosh Verma for the last two years, in the court though it came on record that he was the driver of Sh. Ashutosh Verma during 200708, it has not come on record since when he was employed by him. It is worth noticing that during crossexamination it was not suggested to the witness that CBI vs. Sh. Ashutosh Verma & Ors. Page 38 of 160 he was not engaged by A1 Sh. Ashutosh Verma as his driver. Therefore, it stands proved on record that mobile number 9810433011 was registered in the name of A1 Sh. Ashutosh Verma and he was also using another mobile no. 9871370725 which was in the name of his private driver Sh. Sudama Singh.

106. The next objection is that CBI has relied on letter dated 03.12.2008 from Vodafone as per which CAF of Accused No. 4's mobile phone number 9920022009, Ex. PW44/3 and certificate authored by Sh. Changdeo Haribhau Godse, Ex. PW44/2 have been produced. CBI has not produced any CDR for the alleged phone number and that Sh. Changdeo Haribhau Godse has not been called as a witness to prove the certificate.

107. This is a strange submission.

108. The certificate u/s 65 B of Evidence Act, Ex. PW44/2 is with regard to CDRs of Mobile Nos. 9920022009, 9920444837, 9920022003 and 9920022002. These CDRs are not on record. Once the secondary electronic evidence is not on record, certificate u/s 65 B of Evidence Act for those call records is of no avail for CBI. The said certificate is trying to prove secondary electronic evidence which is not relied on. So far as CAF of Mobile No. 9920022009 is concerned, the original Customer Application Form in the name of A4 Sh. Bipin Shah is on record. Once the original record is available which is in physical form, there is no need to meet the requirements of secondary evidence.

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109. The next objection is that CBI has not made any application seeking directions to Retd. Nodal Officer Sh. R.K. Singh to provide Certificate u/s 65 B of Evidence Act. This objection has no merits in as much as PW14 during his examinationinchief deposed that he has checked his Data Storage System and the CDRs for the phone numbers stated in his examinationinchief on 09.02.2017 for the relevant period are not available in his system. He deposed that as per the DoT Rules, service providers are only to maintain and preserve call details records for a period of one year and as the period of this case was 200708, such record was not available with him.

110. Therefore, it was not feasible when the evidence of PW14 was recorded to provide Certificate u/s 65 B of the Evidence Act.

111. The Hon'ble Supreme Court in the case of Arjun Panditrao Kotkar (Supra), has held that two latin maxims are lex non cogit ad impossiblia i.e. the law does not demand the impossible and the other maxim is impotentia excusat legem i.e. when there is a disability that makes it impossible to obey the law, the alleged disobedience of the law is excused. Therefore, during evidence of PW14, it was not technically possible to produce the Certificate u/s 65 B of Evidence Act as the electronic data was no more available in the system. The witness has referred to DoT Rules as per which service providers had to maintain the data only for one year and for this reason the Certificate u/s 65 B of Evidence Act could not come on record.

CBI vs. Sh. Ashutosh Verma & Ors. Page 40 of 160

112. Be that as it may, the question finally to be decided is whether without CDRs being proved on record in the absence of Certificate u/s 65 B of Evidence Act, the call recording made by Special Unit, duly supported with Certificate u/s 65 B of Evidence Act, where the voice of the accused was identified by witnesses conversant with their voice can be relied upon or not.

113. The other objection on behalf of A1 Sh. Ashutosh Verma is that the purported CDRs of Mobile No. 9810035001 allegedly belonging to A2 has the IP Address Ram0035II, 9910487945 in the name of Claridges Hotel has the IP Address Ram0035II and 9810000035 in the name of Sanjeev Nanda has the IP Address Ram7945 at the bottom of CDRs. It was submitted that IP Address is that of a desktop of "Ram" which shows that Ram Singh, the IO may have been storing purported CDRs in his desktop and could have tampered with the same.

114. This court has carefully considered this objection.

115. The accused has not mentioned in his written submissions whether this question was put to the IO or not. A perusal of the crossexamination of the IO does not show that he was put any question to explain the appearance of expression "Ram" in the CDRs.

116. When PW14 was in the witness box, he was crossexamined on behalf of A4 Sh. Bipin Shah with regard to the IP Address of the server. PW14 has deposed that it is not necessary that whenever CBI vs. Sh. Ashutosh Verma & Ors. Page 41 of 160 printout of a CDR is taken, the IP Address of the server will be reflected on the CDR. He denied a suggestion that IP Address of the server will always be reflected on the CDR.

117. Therefore, the crossexamination is silent with regard to the objection now being raised on behalf of A1 Sh. Ashutosh Verma. It is possible that if such a question was put to PW14, the witness might have given explanation for the appearance of "Ram" in the CDRs as the person who had generated the purported records was Nodal Officer Sh. R.K. Singh and it cannot be ruled out that "Ram" could be corresponding with his abbreviation R.K. Singh.

118. However, since no such question was put to PW14, now any such objection on behalf of A1 Sh. Ashutosh Verma is in the nature of conjectures and surmises.

119. It is also an objection on behalf of the accused that the stamp of telecom company is not reflected in the challan but is visible in the physical copy of D17. This has been admitted by IO during his crossexamination which shows that the document is completely tampered and manipulated by CBI.

120. The submission has been verified and it is found that in the soft copy of chargesheet the stamp of Bharti Airtel Limited, New Delhi is not visible which is visible in the hard copy.

121. At best, it shows that the stamp was got affixed after the entire records were scanned for supplying to the accused as well as to the court.

CBI vs. Sh. Ashutosh Verma & Ors. Page 42 of 160

122. In the opinion of this court, this will not render the entire CDR as tampered and manipulated.

123. It is also an objection that there are certain inconsistencies between the purported CDRs and the Annexures as certain calls mentioned in Annexure 'A' are not reflected in the CDRs. For an example, Call No. 13 dated 17.02.2008 is not reflected in CDR of A4 Sh. Bipin Shah. However, this call is duly reflected in the CDR of A1 Sh. Ashutosh Verma, Ex. PW14/7 (D17). According to Ld. Sr. PP for CBI, it is because CDR was of Delhi Circle.

124. It is also an objection that CDRs and CAFs of the purported phone numbers of Sh. G.K. Ravi (9910390111), Sh. Suresh Nanda (011 24654719) and Sh. Navin (9810126933) are not on record.

125. In this regard, it is noted that so far as PW18 Sh. G.K. Ravi is concerned, he has admitted the transcripts of the calls as Ex. PW 18/1 to Ex. PW18/12. He was not given any suggestion during his crossexamination that he was not using mobile no. 9910390111.

126. So far as telephone no. 01124654719 of Sh. Suresh Nanda is concerned, as per CBI, this telephone number was not used by Sh. Suresh Nanda. This number was used by Sh. Suresh Yadav who was examined as PW3 in this case. PW3 Sh. Suresh Yadav has admitted the conversation between himself and A4 Sh. Bipin Shah, PW3/12.

127. Further, telephone number of 9810126933 of Sh. Navin is regarding Air Ticket for A1 Sh. Ashutosh Verma for his visit to CBI vs. Sh. Ashutosh Verma & Ors. Page 43 of 160 Mumbai/Goa. The said visit has been duly proved by PW4 Sh. Sanjiv Mahindru.

128. It is also an objection that there are time differences between the purported CDRs and Annexure A, Ex. PW21/3. However, this question was not put to PW21 Sh. M.C. Kashyap who would have given the best answer as he was a technical expert heading Special Unit regularly recording conversations.

129. It is also an objection that Annexure A was manually generated by CBI and was not matched with the purported Call Information Report. Therefore, no reliance can be placed upon the purported calls.

130. The submission has no merit in as much as it is the duty of the IO to compare the CDRs and the call details of Special Unit and Special Unit is having no responsibility of conducting investigation except recording the intercepted conversations and providing the same to the investigating agency.

131. It is also an objection that CBI has not examined Sh. Changdeo Haribhau Godse, who is the author of D26, Ex. PW44/2.

132. In this regard, it is already noted that the CAF of Sh. Bipin Shah for Mobile No. 9920022009 is available on record as Ex. PW44/3 and therefore when the original is available, no Certificate u/s 65 B of Evidence Act is required. It is also noted earlier that the CDRs for which Certificate u/s 65 B, Ex. PW44/2 has been given, have not been relied on. Therefore, the objection has no merit.

CBI vs. Sh. Ashutosh Verma & Ors. Page 44 of 160

133. It is submitted that purported intercepted calls are completely inadmissible and irrelevant as evidence without CDRs and CAFs being admissible and being duly proved in evidence. Reliance is placed on Udai Kumar Singh vs. State of Bihar, (2015) 16 SCC

217. A perusal of this judgment shows that the IO had obtained print out of mobile numbers used by the accused to identify the subscribers of those mobile numbers. However, the print outs were not proved in accordance with the provisions of Section 65 B of the Evidence Act. The print outs were also not bearing any certificate of the competent officer of the telephone exchange certifying the correctness of the data indicated herein. Therefore, the print out were not admitted in evidence.

134. The facts of the case in hand are different as in this case prosecution has relied on Ex. PW14/A where the subscriber details, the nature of SIM card i.e. prepaid/postpaid, name and address of subscriber have been mentioned. It is also noted that during crossexamination, no suggestion was given to the witness that the mobile numbers attributed to the accused were not registered in their names. During statement u/s 313 of Cr.P.C. also, the accused have not disowned the mobile numbers attributed to them. Therefore, this judgment is distinguishable and inapplicable to the case in hand.

135. Reliance is also placed on Harpal Singh vs. State of Punjab, (2017) 1 SCC 734. In this case, it was held that "It is not sufficient to depose that all the stipulations contained u/s 65 of the Act had CBI vs. Sh. Ashutosh Verma & Ors. Page 45 of 160 been complied with as a substitute for the Section 65 B of the Evidence Act. It was held that in the absence of a certificate u/s 65 B, the call details are inadmissible. Reference was made to the judgment of Hon'ble Supreme Court in the case of Anwar PB vs. P.K. Basheer, (2014) 10 SCC 473. Reliance is also placed on State vs. Mukesh, (2018) 248 DLT 564. In this case, the CDRs were not supported by Section 65 B of the Evidence Act and there was no evidence of any mobile phone held in the name of any of the public servants accused in the case to be involved in any incriminating contact. There was no Customer Application Form and therefore it was held that the CDRs do not have any relevance.

136. So far as CAF is concerned, in this case prosecution is relying on Ex. PW14/1 which has remained unquestioned and unchallenged during crossexamination as well as statements u/s 313 of Cr.P.C.

137. Reliance is also placed on Ashwani vs. State, Crl. Appeal No. 323/2018 decided on 08.10.2018 by the Hon'ble Delhi High Court. In this case, it was not proved that the phones were issued in the respective names of the accused.

138. However, in the case in hand, this court has Ex. PW14/1 to show that the respective phones were issued in the names of the accused persons.

139. There is another objection that the Nodal Officer who had prepared the Certificate u/s 65 B of the Evidence Act was not CBI vs. Sh. Ashutosh Verma & Ors. Page 46 of 160 examined though he was still in service of the service provider. In this case also, similar situation has arisen as prosecution has relied on evidence of PW44 Major Charles Daniel but has not examined Sh. Changdeo Haribhau Godse who has given the certificate Ex. PW44/2. However, it makes no difference to the case in as much as the CDRs for the mobile numbers for which the said Certificate was given, are not relied on.

140. Reliance is also placed on Rekha Sharma vs. CBI, (2015) 149 DRJ 449. In this case also, the call records were held inadmissible in the absence of certificate requirement u/s 65 B of the Evidence Act. Reliance is also placed on Achey Lal vs. State, Crl. Appeal No. 1171/12 decided by the Hon'ble Delhi High Court on 04.12.2014.

141. In the opinion of this court, this judgment is not applicable in as much as the print outs generated from data stored in the computer memory was not proved as per requirement of Section 65 B of Evidence Act. Directions were given for recording further evidence of the witnesses concerning computer print outs of call details speaking the facts to establish that Clauses (a) to (d) of Section 65 B or SubSection 2 of Section 65 B or SubSection 3 thereof are satisfied.

142. In the case of Arjun Pandit Rao (Supra), now it has been made clear that such a requirement cannot be fulfilled without there being a Certificate u/s 65 B of the Evidence Act.

CBI vs. Sh. Ashutosh Verma & Ors. Page 47 of 160

143. It is another objection that CBI has not produced the original computer system or the mirror image of the hard drive or logger system and the hash values of the hard drive and the CDs were not seized. The purported CDs containing the calls and the hard drivers were not sent to CFSL to rule out all possibility of tampering. The purported "gist of calls" and 94 conversations were filed much prior to the date on which alleged calls were seized. The seal affixed on the calls is changed, evidencing tampering. The evidence on the record suggests the Special Unit, where purported calls were intercepted, was compromised. It is the submission that if the original recording device is not seized and sent with the CDs containing the recording for forensic analysis to rule out tampering, the intercepted/recorded conversations will be inadmissible. Reliance is placed on Sanjaysinh Singh Chavan vs. Dattatray Gulbrao, (2015) 3 SCC 123.

144. A perusal of the judgment shows that the same is pertaining to recording of conversation in a voice recorder. Therefore, it was held that as the voice recorder is not itself subjected to analysis, there is no point in placing reliance on the translated version. Without source, there is no authenticity of the translation.

145. This judgment is not applicable because in this case, the recording is by Special Unit and not through voice recorder. The judgment does not directs that the recording system of Special Unit should be sent for forensic examination.

CBI vs. Sh. Ashutosh Verma & Ors. Page 48 of 160

146. Same is the judgment in the case of Ashish Kumar Dubey vs. State, ILR (2014) Delhi 2331. In this case also, the directions are that the tape recorder on which conversation was recorded was not itself examined. It is also not a case of recording by Special Unit on its recording system but recording on a tape recorder. Even this judgment does not speak about forensic examination of the computers of the Special Unit to rule out tampering.

147. Reliance is also placed on S.K. Saini vs. CBI, (2015) 4 DLT Crl.

74. In this case, the recording was on micro cassette recorder and was in unsealed condition when it was played in the court. Therefore, facts of this case are not applicable to the case in hand.

148. Reliance is also placed on Ram Kishan Fauji vs. State of Haryana, Civil WP No. 4554/2014. In this case, it was held that if the CD cannot stand the case of authenticity by its comparison with its hash value with the source, then the transcript of what has been obtained through its video footage or what it purports to capture cannot be taken as of any value. This is also a case of sting operation and not recording by Special Unit and is therefore not applicable to the case in hand.

149. It is further objection of the accused that PW46 Sh. Shakti Verma has deposed that he had heard some conversation when he was called to CBI's Office on 13.03.2008 and 04.04.2008. This is corroborated by PW59, IO of the case when he admitted that when the statement u/s 161 of Cr.P.C. of PW36 Sh. Shakti Verma CBI vs. Sh. Ashutosh Verma & Ors. Page 49 of 160 was recorded, he was made to hear purported intercepted call on 04.04.2008.

150. As per Ex. PW28/2, A1 Sh. Ashutosh Verma had refused to give a voice specimen on 13.03.2008. It is submitted that Accused No. 1 had never refused to give his voice specimen and in any case recording of voice specimen is impossible in the absence of a transcript of the recorded conversation being seized by CBI. Reliance is placed on Sudhir Chaudhary vs. State (NCT of Delhi), (2016) 8 SCC 307, which require the presence of a CFSL Expert. The transcript of the disputed conversation is to be handed over to the expert in a sealed cover for mixing of incriminating words with general sentences to be read out.

151. It is to be noted that the relied on judgment is of the year 2016 and no investigating officer could be expected to follow the directions as given in this judgment in the year 2008.

152. It is further submitted that as per CBI's Remand Application dated 14.03.2008 Ex. PW29/D1 to D8, purported "legally intercepted calls" were already with the CBI as of 14.03.2008. As per order dated 14.03.2008 of this court, Ex. PW59/D10 on the Remand Application filed by CBI, purported recorded conversations were in CBI's possession prior to 12.03.2008 and transcripts in respect of the same were prepared on 12.03.2008. As per CBI's application dated 28.03.2008 seeking extension of judicial custody of Sh. Sanjeev Nanda Ex. PW59/D9, the CBI had the purported CBI vs. Sh. Ashutosh Verma & Ors. Page 50 of 160 recorded calls. As per order of this court dated 05.04.2008 deciding bail applications of the accused persons, Ex. PW59/D 11, CBI has stated that it has obtained 94 conversations recorded from 09.02.2008 till 08.03.2009 and a "gist of conversations" was filed before this court. As per order of Hon'ble Delhi High Court granting bail to the accused on 29.04.2008, Ex. PW59/D12, CBI had stated that it has intercepted telephone conversations. However, as per seizure memo Ex. PW21/1, dated 30.05.2008, CBI had seized the CD of recorded conversation on 30.05.2008.

153. This question was pertinently put to the Ld. Sr. PP for CBI during rebuttal arguments and his response as recorded in the Ordersheet of 15.03.2021 is that:

"...Whenever any case is registered in Anti Corruption Branch or any other branch, there is sharing of information amongst different branches at higher level at the stage of SPs. He submitted that in this case also, the SP of the branch was privy to certain intelligence inputs which he shared with the IO and there is nothing to suggest tampering of two CDs if the IO had transcripts before hand as explained by him in his crossexamination referred above".

154. Reliance is placed on Vineet Narayan vs. Union of India, (1998) 1 SCC 226 to submit that the Hon'ble Supreme Court has passed the direction under Article 141 and 142 of the Constitution to the effect that noncompliance with CBI Manual would vitiate the entire trial and result in quashing of entire criminal proceedings to secure the ends of justice.

CBI vs. Sh. Ashutosh Verma & Ors. Page 51 of 160

155. A perusal of the judgment shows it nowhere says that non compliance with the CBI Manual would vitiate the entire trial. It directs in Para 58 (12) that the CBI Manual based on statutory provisions of the Cr.P.C. provides essential guidelines for the CBIs functioning. It is imperative that the CBI adheres scrupulously to the provisions in the Manual in relation to its investigative functions like raids, seizure and arrests. Any deviation from the established procedure should be viewed seriously and severe disciplinary action taken against the officials concerned.

156. Reliance is placed on CBI vs. Ashok Kumar Aggarwal, (2014) 14 SCC 295. In this judgment, Para 58 (12) of the judgment of Vineet Narayan (Supra) has been quoted.

157. Reliance is also placed on Ripun Bora vs. CBI, ILR (2012) 1 Delhi 412 to submit that investigation in derogation of CBI Manual results in quashing of the entire criminal proceedings. A perusal of the judgment shows no preliminary investigation was conducted before registering a regular case against a public servant and the complaint against a Minister/Former Minister of Union Government should have been placed before the Director of CBI for seeking authorization to lay trap.

158. Therefore, the judgment is not applicable to the case in hand.

159. It is submitted that the fact of seizing purported intercepted calls on dates prior to the seizure memo were not recorded in the case CBI vs. Sh. Ashutosh Verma & Ors. Page 52 of 160 diary which is violation of Section 172 of Cr.P.C. as well as Chapter 11 of the CBI Manual.

160. The other objection is that Seizure Memo Ex. PW21/1 does not mention seizure of any purported 'Annexure' containing details of calls or a Certificate u/s 65 B of the Evidence Act, which, as per CBI were seized for 134 calls on 30.05.2008. The Certificate u/s 65 B Ex. PW21/2 and 'Annexure', Ex. PW21/3 were backdated.

161. A perusal of seizure memo Ex. PW21/1 shows that neither Certificate u/s 65 B nor 'Annexure' is mentioned in the said seizure memo.

162. The allegation is that the Certificate is ante dated. In the case of Arjun Panditrao Koktar (Supra), the Hon'ble Supreme Court has held that in cases where either a defective certificate is given or in cases where such certificate has been demanded and is not given by the concerned person, the judge conducting the trial must summon the person/persons referred to in Section 65 B (4) of the Evidence Act and require that such certificate be given by such person/persons. This, the Trial Judge ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned. It is further mentioned in the said judgment that the stage of admitting documentary evidence in a criminal trial is the filing of the chargesheet. When a criminal court summons the accused to stand trial, copies of all documents which are entered in the CBI vs. Sh. Ashutosh Verma & Ors. Page 53 of 160 chargesheet/final report have to be given to the accused. Section 207 of Cr.P.C. is mandatory. Therefore, the electronic evidence i.e. the computer output, has to be furnished at the latest before the trial begins. This gives the accused a fair chance to prepare and defend the charges leveled against him during the trial. The general principle in criminal proceedings therefore, is to supply to the accused all documents that the prosecution seeks to rely upon before the commencement of trial. The requirement of such full disclosure is an extremely valuable right and an essential feature of the right to a fair trial as it enables the accused to prepare for the trial before its commencement. It is further held that in a criminal trial, it is assumed that the investigation is completed and the prosecution has, as such, concretized its case against an accused before commencement of the trial. It is further settled law that the prosecution ought not to be allowed to fill up any lacuna during a trial and the only exception as provided in CBI vs. R.S. Pai, (2002) 5 SCC 82 is if the prosecution had mistakenly not filed a document, the said document can be allowed to be placed on record. Therefore, in terms of general procedure, the prosecution is obligated to supply all documents upon which reliance may be placed to an accused before commencement of the trial. It is further held in the said judgment that so long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the Judge at any stage, so that information contained CBI vs. Sh. Ashutosh Verma & Ors. Page 54 of 160 in electronic record form can then be admitted and relied upon in evidence.

163. From the above, it can be deduced that even if the CD Ex. PW 21/5 was not supported by Affidavit u/s 65 B of Evidence Act, the Judge conducting the trial had to summon the person referred to in Section 65 B(4) of the Evidence Act and require that such certificate be given by such person. Further, the directions are that all incriminating documents should be given to the accused before the start of trial.

164. In this case, Certificate u/s 65 B of Evidence Act was already part of chargesheet when the accused were summoned to face the trial and therefore they have suffered no prejudice even if the said certificate is not mentioned in seizure memo Ex. PW21/1. Therefore, the objection of the accused that the CD is inadmissible for want of supply of Certificate u/s 65 B of Evidence Act at the time of supply of CD as it is not mentioned in the seizure memo Ex. PW21/1 is rejected.

165. Even if the said certificate was not filed mistakenly with the chargesheet, still, in terms of the judgment in the case of R.S. Pai (Supra) it could still be allowed to be placed on record.

166. Not only this, so long as the hearing in a trial is not yet over, the requisite certificate can be directed to be produced by the Judge at any stage so that information contained in electronic record form can then be admitted and relied upon in evidence.

CBI vs. Sh. Ashutosh Verma & Ors. Page 55 of 160

167. Therefore, in the considered opinion of this court, there is no merit in the objection of the accused vizaviz Certificate under Section 65 B of Evidence Act for CD Ex. PW21/5.

168. The other objection is that Special Unit where interception was done was compromised because neither FIR nor brief history of the case was handed over to PW21 Sh. M.C. Kashyap at any point of time but PW21 has deposed that he segregated the calls based on relevance himself. It is also an objection that the seizure memo dated 30.05.2008 mentions the RC number but as per PW 59/IO, he had never given the FIR or 'brief history' of the case to PW21 at any point of time.

169. There is nothing surprising if the seizure memo mentions the RC number because the same would have been mentioned in the requisition letter sent to Special Unit. The same is not on record. If the accused were aggrieved by the nonavailability of the said requisition letter, they could have exercised their right under Section 91 of Cr.P.C., as in any case, they had challenged non supply of several unrelied documents before the Hon'ble High Court and as a result of that a large number of documents and statements of witnesses u/s 161 of Cr.P.C. which were not relied upon by the prosecution were provided to the accused.

170. Therefore, the accused are raking up this controversy without any justifiable cause.

CBI vs. Sh. Ashutosh Verma & Ors. Page 56 of 160

171. It is also an objection that the seizure memo dated 30.05.2008 does not mention that unsealed copy of CD of 134 calls was given to the IO for investigation purposes. There are, indeed few aspects of the investigation, which have remained unexplained. However, the same has not resulted in vitiating the entire trial and independent of such lapses, the charge is proved against the accused.

172. The accused have also objected that Recorded Call Information Report purportedly seized with the memo, Ex. PW21/1 has not been placed on record by CBI and the accused have been denied the opportunity to crossexamine the witness on the basis of purported Recorded Call Information Report and have been denied the opportunity to compare the same with the purported call details record which are otherwise inadmissible in evidence.

173. A perusal of records shows that Recorded Call Information Report was given to the IO by PW21 along with seizure memo Ex. PW 21/1 in a sealed envelope. This envelope was opened for the first time in the court at the time of examination of PW1 on 04.11.2016. The extract of the evidence are:

"At this stage, an envelope duly sealed with the seal of CFSL Delhi and crossed signature of a person which have been affixed on 30.05.2008 is produced. The envelope is found containing four pages which are titled as Recorded Calls Information Report and one Sony CD packet. The packing if (sic) found containing a 700 MB Sony CD with RC AC 12008A0001, CBI ACU, I, New Delhi written on it. Also is written another CBI vs. Sh. Ashutosh Verma & Ors. Page 57 of 160 observation "134 calls". For the purpose of identification the CD is marked PW1/A."

174. This envelope was opened thereafter during evidence of PW21 on 06.03.2017.

175. At that time, following was recorded:

"At this stage, an envelope duly sealed with the seal of the court is opened. From this an Yellow colour is taken out. The witness identified this envelope as the envelope in which he had sealed the CD and Recorded Calls Information Report. He identified his signatures across the envelope at Point A. The envelope is now Ex. PW21/4. I have also seen the CD already marked PW1/A. It bear my signatures at point A and it is same CD which was prepared by me and handed over to the IO through seizure memo Ex. PW21/1. The CD is now Ex. PW21/5. I had also handed over the specimen seal of SU to the IO through seizure memo Ex. PW21/1. I have seen the specimen seal of SU as has been handed over to the IO. Same is now Ex. PW21/6 (D21)".

176. Therefore, Recorded Call Information Report for 134 calls was indeed filed by CBI along with seizure memo Ex. PW21/1 and it is also recorded in the evidence of PW1. The same was also provided to the accused in compliance of provisions of Section 207 of Cr.P.C. Had it not been so, it would not have missed the sharp scrutiny of documents by the accused. It is pertinent to note that on behalf of A1 Sh. Ashutosh Verma applications were filed twice u/s 207 Cr.P.C. and u/s 91 Cr.P.C. for supply of deficient documents. The accused did not call for this document which CBI vs. Sh. Ashutosh Verma & Ors. Page 58 of 160 shows that they had Recorded Call Information Record of 134 calls with them.

177. Therefore, the accused cannot say that the Recorded Call Information Report was concealed by CBI from the accused.

178. However, when PW21 was examined and the envelope sealed with the seal of the court was opened, the witness had identified that this is the same envelope in which he had sealed the CD and Recorded Call Information Report. But when the envelope was opened then it was not recorded in the evidence of PW21 that Recorded Call Information Report was also found inside the same.

179. Suitable directions will also be passed in this regard.

180. However, Nonexhibiting of Recorded Call Information Report has not caused any prejudice to the accused.

181. It is also an objection of the accused that the seal on the CD produced during evidence is different from the seal affixed on the seizure memo dated 30.05.2008, Ex. PW21/1.

182. As per the seizure memo and the specimen seal on the memorandum, the "sealed packet containing Recorded Call Information Report along with one compact disc containing voice content of 114 calls and 20 SMSs in 134 files having the words RCAC12008A0001, CBI ACUI, New Delhi, 134 calls" was affixed with a seal of "CBI SU New Delhi" and it is the CBI's case that the CD containing 134 calls was never sent to CFSL. The purported CD containing 134 calls was opened before this Court for the first CBI vs. Sh. Ashutosh Verma & Ors. Page 59 of 160 time during the examinationinchief of Sh. Bhuvnesh Kulshreshtha, PW1, on 04.11.2016 and the seal of "CFSL" was found present on the CD.

183. PW59 in his crossexamination dated 24.05.2018 was asked about the change in the seal. However, the witness denied the change and stated that as far as he remembered, the CD had the seal of SU CBI, New Delhi. It is submitted that in light of this testimony, a possibility that the CBI in connivance with CFSL officials tampered with the CDs cannot be ruled out.

184. Seal plays an important role to inspire confidence about the sanctity of the article.

185. Therefore, the court was waiting with great anticipation the submissions of Ld. Sr. PP for CBI in rebuttal. The submissions of the Ld. Sr. PP for CBI, as recorded on 19.03.2021, in this regard are that:

"... recordings made by Special Unit are never sent by CBI to CFSL for testing tampering unless so ordered by the court. He submitted that such CD may be sent to CFSL only in case any accused makes an application u/s 207 of Cr.P.C. for a copy of the same. He submitted that in this case, no such direction was given for making a copy from CFSL and therefore question does not arise for sending the CD to CFSL. He submitted that a perusal of D21, Ex. PW21/1 shows that the envelope was containing seal of CBI SU and was having words "RC AC 12008A0001, CBI ACUI, New Delhi, 134 calls" and was duly signed by Sh. M.C. Kashyap, Inspector of Police. He submitted CBI vs. Sh. Ashutosh Verma & Ors. Page 60 of 160 that the envelope, when it was opened at the time of evidence of PW1, was having the signatures of Sh. M.C. Kashyap, Inspector of Police intact which showed that the envelope was not opened."

186. In the evidence of A1 recorded on 04.11.2016, it is already noted that at that time, the observation of the court was that the envelope bears cross signature of a person which have been affixed on 30.05.2008.

187. In the evidence of PW21 recorded on 06.03.2017, when the envelope was produced before this witness, he identified that this is the envelope in which he had sealed the CD and Recorded Call Information Report. He had identified his signatures 'across' the envelope at point A. The envelope was exhibited as Ex. PW21/4.

188. From the above, it is clear that the signatures of PW21 were appended 'across' (i.e. from one side of something to the other) of the envelope. Meaning thereby that the place of the envelope where it is closed by glue, the witness had appended signatures in such a manner that if the envelope is opened, the signatures would be destroyed/mutilated/damaged/destructed. However, the signatures were intact as is evident from the observation of the court recorded on 04.11.2016 during evidence of PW1. Had it not been so, the same would have attracted the attention of the court at that time.

CBI vs. Sh. Ashutosh Verma & Ors. Page 61 of 160

189. It is further pertinent to mention that whenever any article is sent to CFSL, the same is not returned back in the envelope in which it was received but is placed in new envelope.

190. For example, reference can be made to the evidence of PW12 where the observation of the court while dealing with the purported recording of conversation between A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah at Hotel Intercontinental Eros, Nehru Place is that the envelope is having five seals of SKC SCO Physics CFSL/CBI New Delhi.

191. Further, evidence of PW49 also shows that after examination of the exhibit, the same is sealed in a new envelope with the seal of CFSL and forwarding authority is intimated for collection of the report and the sealed exhibit.

192. In this case, Ex. PW21/5 has been found in the envelope of Special Unit and not CFSL. As noted earlier, the signatures of PW 21 Sh. M.C. Kashyap of the Special Unit have been found 'across' the envelope in intact and appropriate condition. Therefore, this court is of the view that there is no tampering in the seal and the sanctity of the article is assured by the signatures of Sh. M.C. Kashyap, PW1 which were found intact and in appropriate condition on the envelope. The mentioning of impression Seal of "CFSL" in place of Seal of "CBI SU" is by oversight in the court. The expression CBI SU has been read as CFSL as in any case two alphabets in both the expressions are common.

CBI vs. Sh. Ashutosh Verma & Ors. Page 62 of 160

193. The accused have raised an objection that there is no application moved by the witness u/s 278 of Cr.P.C. to correct the alleged mistake. Reliance is placed on Mir Mohammad Omar vs. State of West Bengal, (1989) 4 SCC 436, Para 15 and Bhagavet Singh vs. State of Kerala, (2008) SCC Online Kerala 251, Para

18. These judgments lay emphasis on the procedure laid down u/s 278 of Cr.P.C. The law requires that the evidence of the witness shall be read over to him in the presence of the accused or his pleader and if necessary, be corrected. The submission is that the prosecution should have file an application for correction of the evidence.

194. However, the facts of this case are slightly different. In this case even if the evidence was read over to the witness, he would not have been able to say whether the seal is of CFSL or CBI SU as he being an Income Tax official would be unaware with these niceties.

195. The oversight is in the observation in the court at the time of recording the nomenclature of seal to be of CFSL instead of CBI SU. The Ld. Prosecutor/IO could have pointed out the mistake but it appears that it was ignored by oversight.

196. It is well known that electronic evidence is susceptible to tampering, alteration, transposition, excision etc. However, the accused have not stated in their statement u/s 313 Cr.P.C. that there is any tampering, alteration, transposition, excision etc. A1 CBI vs. Sh. Ashutosh Verma & Ors. Page 63 of 160 Sh. Ashutosh Verma has simply responded that CD, Ex. PW21/5 is incorrect. A2 Sh. Suresh Nanda has responded to the question on CD, Ex. PW21/5 as "I do not know. However, the entire documentation was falsely created". Similarly, A4 Sh. Bipin Shah has responded to the CD, Ex. PW21/5 as "It is incorrect". When A1 Sh. Ashutosh Verma was put the question that his voice was identified by PW12 Sh. Shailender Handa in CD exhibited Ex. PW1/A containing 134 calls regarding call No. 41, 63, 79, 80, 82, 86, 98 and 105, the response is that it is incorrect and CD is inadmissible. Similarly, the response of A4 Sh. Bipin Shah is also that the CD is inadmissible in evidence. This court has found that the CD is admissible. It is duly supported by Certificate u/s 65 B of Evidence Act. There is no other objection to the CD. It is not the submission of the accused that there is any tampering, alteration, transposition, excision in the recorded conversations. The accused have not come forwarded with a case that yes, there are conversations in the CD in their voices but the incriminating parts of the conversations are result of tampering, alteration, transposition, excision etc. The voices of the accused have been property and adequately identified by PW1 (voice of Sh. Bipin Shah, Call No. 46, 53, 54 and 81), PW3 (voice of Sh. Bipin Shah, Call No. 58) PW18 (voice of Sh. Ashutosh Verma and Sh. Bipin Shah, Call No. 1, 3, 14, 29, 40, 41, 63, 79, 80, 82, 86, 98 and 105), PW22 (voice of Sh. Ashutosh Verma, Call No. 2, 5, 9, 14, 17, 18, 19, 20, 24, 28 and 32), PW36 (voice of Sh. Ashutosh Verma and Sh. Bipin Shah, Call No. 2, 26, 47, 74, 76 and 14), PW46 (voice of CBI vs. Sh. Ashutosh Verma & Ors. Page 64 of 160 Sh. Bipin Shah, Call No. 7, 4, 5 and 133), PW53 (voice of Sh. Bipin Shah, Call No. 42, 49, 50, 83, 89, 92, 93, 95 and 103) Therefore, in the considered opinion of this court the CD Ex. PW 21/5 can be taken into consideration for decision of the case.

197. It is also an objection that CBI has not ruled out all possibilities of tampering of the electronic evidence which is prone to extensive and sophisticated tampering, doctoring and editing and conviction cannot be based solely upon voice identification. Reliance is placed on Nilesh Dinkar Paradkar vs. State of Maharashtra (Supra). A perusal of the judgment shows it only cautions the court to be extremely cautious in basing a conviction purely on the evidence of voice identification.

198. It does not say that no conviction can be based solely upon voice identification. Reliance is placed on Indrawati vs. State, Crl. Appeal No. 1222/2019, as per which electronic evidence bereft of scientific evidence is inadmissible. A perusal of the said judgment shows that the recorded conversations by Special Unit was not the subject matter before the court. It was a case pertaining to cassette containing the recorded version of ransom call. In these circumstances, it was observed that the same should have been sent to CFSL for obtaining the result of voice test. Since, the recording in this case was only cassette and the recording in the case in hand was on the systems of Special Unit is the distinguishing factor between the two cases.

CBI vs. Sh. Ashutosh Verma & Ors. Page 65 of 160

199. No judgment has been shown where there are directions that the recordings made by Special Unit requires forensic investigation by CFSL.

200. The next challenge is that A1 Sh. Ashutosh Verma had never refused to give voice sample and the purported Voice Refusal Memo Ex. PW28/2 is a fabricated document. The submission is that there are two witnesses of this Refusal Memo, PW28 Sh. Yogender Kumar and Sh. Naresh Tomar. For reasons best known to CBI, Sh. Naresh Tomar was not examined as a Prosecution Witness. It is the submission that CBI obtained signatures of A1 on blank pieces of paper by coercion and that was misused in fabricating the Voice Refusal Memo.

201. The submission of coercion is not acceptable because after 13.03.2008 when this Refusal Memo Ex. 28/2 was prepared, the accused Sh. Ashutosh Verma was produced before this court on 14.03.2008 and remanded till 28.03.2008. Again, he was produced on 28.03.2008 and remanded till 11.04.2008. The accused was being represented by his Ld. Counsel. At no stage, the accused raised an objection before the court about coercion by CBI in obtaining Refusal Memo. He did not retract refusal before the court. He never deposed that he is ready and willing to offer his sample voice to CBI. Therefore, this contention of the accused is rejected.

CBI vs. Sh. Ashutosh Verma & Ors. Page 66 of 160

202. Reliance is placed on Ritesh Sinha vs. State of U.P., (2019) 8 SCC (Page 1) to submit that CBI had no authority to seek sample voice of the accused. This case was placed before the larger bench of the Hon'ble Supreme Court as there was a split verdict of a two Judge Bench requiring the present reference. The difference of opinion was that compulsion on an accused to give his/her voice sample must be authorized on the basis of a law passed by the legislature instead of a process of judicial interpretation. The decision on the reference was that a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. In the case in hand, no such order was given by the IO to the accused who therefore had the liberty to give voice sample or refuse the same. He was not compelled to give his sample voice which is possible by the order of Judicial Magistrate.

203. Reliance is placed on Sudhir Chaudhary vs. State, [(2016) 8 SCC 307] laying down the procedure for taking voice sample. This judgment has also come in the year 2016 and the IO was not expected to follow the directions of this judgment in the year 2008 when the investigation in this case was going on.

204. The accused is relying on his response with regard to voice refusal proceedings during his statement u/s 313 of Cr.P.C. This statement u/s 313 of Cr.P.C. was recorded on 14.09.2018 when the accused took the stand that he was forced to sign Ex. PW28/2 while he was in CBI custody. As noted earlier, the response has CBI vs. Sh. Ashutosh Verma & Ors. Page 67 of 160 come belatedly as the accused had the opportunity to make this submission when he was produced before the court on the next day of such coercion by CBI but he did not make any such submission retracting refusal and expressing his willingness to give the voice sample.

205. The accused has taken an objection that the voice sample of A2 and A4, PW22 Sh. Nikhil Nanda and PW37 Sh. Rajender Kashyap was not recorded which demolishes voice identification evidence.

206. In this regard, it is to be noted that neither PW22 Sh. Nikhil Nanda nor PW37 Sh. Rajender Kashyap have denied their voice in the recored conversations. Non recording of sample voice of A2 and A4 is not fatal to the case as their voice has been identified by persons closely known to them and well familiar with their voice. The voice specimen of A4 Sh. Bipin Shah was not sent for expert examination in as much as there are large number of witnesses who had identified his voice. The submission that CBI should have taken voice sample of PW53 Ms. Mandeep Bedi is also of no avail as she has not denied her voice in the recorded conversation.

207. So far as voice identification by PW18 Sh. G.K. Ravi, PW12 Sh.

S. Handa, PW36 Sh. S.N. Gaba is concerned, the submission of the accused is that possibility of tampering the conversations played was not ruled out. On behalf of A1, several judgments have been cited on the point of ruling out tampering in the recorded conversations before they can be relied upon. But none CBI vs. Sh. Ashutosh Verma & Ors. Page 68 of 160 of the judgment is pertaining to recording by Special Unit. None of the judgment is directing that the mirror image of the system of Special Unit should have been sent to CFSL to rule out tampering. All the judgments referred on behalf of the accused are pertaining to recordings on Micro Cassette Recorder (MCR) which is not the case in hand. The recordings recorded by Special Unit are supported by Certificate u/s 65 B of Evidence Act. Therefore, the recorded conversations can be referred and relied upon without their forensic examination by CFSL. It is submitted that PW12 Sh. S. Handa has not identified the voice of A1 Sh. Ashutosh Verma. It is submitted that as per PW18 Sh. G.K. Ravi and PW36 Sh. S.N. Gaba, the recordings were not made in his presence.

208. It is not even the case of CBI that these recordings were made in the presence of these two witnesses. The recordings were made by the Special Unit. Therefore, the recording cannot be challenged only on the ground that they were not made in the presence of PW18 Sh. G.K. Ravi or PW36 Sh. S.N. Gaba.

209. The submission of the accused is also that Call No. 13, 16, 19, 61, 68 and 69 were not played before any witness for voice identification of the accused persons and were attempted to be exhibited in the evidence of PW59 without any voice identification. Adverse inference ought to be drawn against CBI for the same. These calls are therefore, completely inadmissible in evidence as no condition under Ram Singh (Supra) has been satisfied.

210. The contention of the accused is accepted.

CBI vs. Sh. Ashutosh Verma & Ors. Page 69 of 160

211. For challenging the certificate u/s 65 B of the Evidence Act, reliance is placed on Ashwani vs. State, 2018 SCC Online Delhi 11706. However, this judgment can be referred in a case where the Nodal Officer, who proves the certificate u/s 65 B of the Evidence Act had not issued the said certificate and had identified the certificate given by some other Nodal Officer. The facts in case at hand are different and therefore, this judgment is not applicable to the case in hand.

212. Reliance is also placed on Achchey Yadav vs. State, 2014 SCC Online Delhi 4539 to challenge the certificate u/s 65 B of Evidence Act, Ex.PW21/2. In the case of Achchey Lal, there was no certificate u/s 65 B of Evidence Act. It was held that a witness must depose the facts to establish that clauses (a) to (d) of sub section (2) of Section 65 B or subsection (3) thereof are satisfied. However, now in Arjun Pandit Rao (Supra), it is established that there is no substitute for certificate u/s 65 B of the Evidence Act and in this case such a certificate has been duly provided by PW

213. It is also an objection that the purported recorded calls are inadmissible in evidence and liable to be destroyed for being illegally intercepted in derogation of Section 5 of Telegraph Act r/w Rule 419 A of the Telegraph Rules and Article 21 of the Constitution. The submission is that the MHA orders dated 07.02.2008 and 28.02.2008 have been passed without any application of mind in a completely mechanical manner. It is also CBI vs. Sh. Ashutosh Verma & Ors. Page 70 of 160 an objection that the order cannot be read in evidence as the author of the order was not produced before the Court. It is the submission of the accused that the present case does not maintain single criteria laid down under Section 5 of the Telegraph Act. Reliance is placed on Hukum Chand vs. Union of India, (1976) 2 SCC 128. It is submitted that the MHA interception order does not show any application of mind to the facts of the case or discuss reasons for meeting the public emergency criteria. It is also mentioned in the pointers of arguments of A1 Sh. Ashutosh Verma that:

"Without prejudice that allegations of corruption do fulfill the requirement of a "Public Emergency" to permit interception u/s 5 of the Telegraph Act".

214. Reliance is also placed on KLD Nagadree vs. Government of India, AIR 2007 AP 102. Reliance is also placed on PUCL vs. Union of India, (1997) 1 SCC 301 to submit that the mandatory procedure laid down by the Hon'ble Supreme Court and Rule 419A of Telegraph Rules have to be complied with. It is submitted that the Hon'ble Supreme Court has upheld the constitutional validity of Section 5 of Telegraph Act under Article 21 of the Constitution on the condition that the safeguards provided in Section 5 must be fulfilled. It is submitted that pursuant to the decision of the Hon'ble Supreme Court in the case of PUCL (Supra), Rule 419A of the Telegraph Rules was formulated providing for mandatory procedure to be adopted in the interception of telephonic CBI vs. Sh. Ashutosh Verma & Ors. Page 71 of 160 conversations. It is submitted that there was no information/ground to believe commission of offence on 07.02.2008 and 28.02.2008 considering, as per CBIs' case, the FIR was registered on 08.03.2008 on the basis of source information for the first time. Therefore, there was no occasion for the accused number 1's phone number/calls to be intercepted by the authority in February 2008. Reliance is also placed on K.S. Puttaswamy vs. Union of India, (2017) 10 SCC 1.

215. It is to be noted that Mark PW21/A and Mark PW21/B (D21) which are the original orders passed by Sh. Madhukar Gupta, Secretary to the Government of India, Ministry of Home Affairs, New Delhi were provided along with the chargesheet. The orders specifically note that for reason of public safety, it is necessary and expedient so to do in the interest of security of state and for preventing incitement to the commission of an offence, any telephone message relating to clandestine contact/movement/ activity etc. to and from the telephone numbers mentioned in the orders be intercepted and disclosed to Director, CBI. The orders record the satisfaction of the Secretary, MHA that it is necessary to monitor these telephones as the information cannot be acquired through any other reasonable means.

216. However, in the chargesheet, no witness was shown as Prosecution Witness for proving these orders.

CBI vs. Sh. Ashutosh Verma & Ors. Page 72 of 160

217. During rebuttal arguments, Ld. Sr. PP for CBI sought permission of the court to examine Sh. Sunil Dhawan, the then Private Staff Officer to the Home Secretary u/s 311 of Cr.P.C. for proving the orders of Secretary, MHA, New Delhi. Inspite of categorical query of the court, the prosecution did not prefer to examine the Secretary, MHA and insisted on examining Sh. Sunil Dhawan, the then Private Staff Officer to the Home Secretary. As, at best Sh. Sunil Dhawan, the then Private Staff Officer to the Home Secretary could have identified only the signatures of Secretary, MHA on the orders dated 07.02.2008 and 28.02.2008 and could not have deposed anything about the contents of the orders in question, the application was not allowed.

218. At that stage, the court did not suo moto summoned Sh. Madhukar Gupta as it appeared that the stand of CBI was ambivalent in as much as reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Yashwant Sinha & Ors. vs. CBI, 2019 (6) SCC 1, where there is reference to the earlier decision of the Hon'ble Supreme Court in the case of Pooran Mal vs. The Director of Inspection (Investigation) of Income Tax, New Delhi, where it is held that:

"Test of admissibility of evidence lies in its relevancy, unless there is an express or necessarily implied prohibition in the constitution or other law evidence obtained as a result of illegal search or seizure is not liable to shut out".

CBI vs. Sh. Ashutosh Verma & Ors. Page 73 of 160

219. Meaning thereby the alternate submission on behalf of CBI was that even if the orders or the Secretary, MHA are not proved on record still the recorded conversations can be referred and relied on in evidence.

220. Though this is not a direct argument of CBI but in the opinion of this court, the recorded conversations can still be looked into even if the order of Secretary, MHA has not been proved on record.

221. In the case of Pushpa Devi M. Jatia vs. M.L. Wadhwan, 1987 (3) SCC 367, it is held as under: "20... If evidence is relevant the Court is not concerned with the method by which it was obtained. In Barindra Kumar Ghose & Ors. v. Emperor, ILR (1910) 37 Cal. 467 Sir Lawrence Jenkins repelling the contention that the Court must exclude relevant evidence on the ground that it was obtained by illegal search or seizure, said at p. 500 of the Report:

"Mr. Das has attacked the searches and has urged that, even if there was jurisdiction to direct the issue of search warrants, as I hold there was, still the provisions of the Criminal Procedure Code have been completely disregarded. On the assumption he has contended that the evidence discovered by the searches is not admissible, but to this view I cannot accede. For without in any way countenancing disregard of the provisions prescribed by the Code, I hold that what would otherwise be relevant does not become irrelevant because it was discovered in the course of a search in which those provisions were disregarded."

CBI vs. Sh. Ashutosh Verma & Ors. Page 74 of 160

The question arose before the Judicial Commit tee of the Privy Council in the wellknown case of Kuruma v. Reginam, [1955] 1 All ER 236. In dealing with the question Lord Goddard, CJ. delivering the judgment of the Privy Council said:

"The test to be applied. both in civil and in criminal cases, in considering whether evidence is admissible, is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how it was obtained."

The learned CJ. further observed:

"In their Lordships' opinion, when it is a question of the admission of evidence strictly it is not whether the method by which it was obtained is tortuous but excusable, but whether what has been obtained is relevant to the issue being tried."

Again, the House of Lords in R.V. Sang, [1979] 2 All ER 1222 reiterated the same principle that if evidence was admissible it matters not, how it was obtained. Lord Diplock after considering various decisions on the point observed that however much the judge may dislike the way in which a particular piece of evidence was obtained before proceedings were commenced, if it is admissible evidence probative of the accused's guilt 'it is no part of his judicial function to exclude it for this reason' and added:

"He has no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means. The court is not concerned with how it was obtained.

There is a long line of authority to support the opinion that the Court is not concerned with how CBI vs. Sh. Ashutosh Verma & Ors. Page 75 of 160 evidence is obtained. The rule is however subject to an exception. The Judge has a discretion to exclude evidence procured. After the commencement of the alleged offence, which although technically admissible appears to the Judge to be unfair. The classical example of such a case is where the prejudicial effect of such evidence would be out of proportion to its evidential value. Coming nearer home. This Court in Magraj Patodia v.R.K. Birla & Ors., [1971] 2 SCR 118 held that the fact that a document which was procured by improper or even illegal means could not bar its admissibility provided its relevance and genuineness were proved. In R.M. Malkani v. State of Maharashtra, [1973] 2 SCR 417 the Court applying this principle allowed the taperecorded conversation to be used as evidence in proof of a criminal charge. In Pooran Mal etc. v. Director of Inspection (Investigation) of IncomeTax Mayur Bhavan, New Delhi & Ors., [1974] 2 SCR 704 the Court held that the incometax authorities can use as evidence any information gathered from the search and seizure of documents and accounts and articles seized."

222. In the case of State (NCT of Delhi) vs. Navjot Sandhu, 2005 (11) SCC 600, it is held as under:

16... The noncompliance or inadequate compliance with the provisions of the Telegraph Act does not per se affect the admissibility. The legal position regarding the question of admissibility of the tape recorded conversation illegally collected or obtained is no longer res integra in view of the decision of this Court in R.M. Malkani Vs. State of Maharashtra [(1973) 1 SCC 471].

CBI vs. Sh. Ashutosh Verma & Ors. Page 76 of 160

In that case, the Court clarified that a contemporaneous tape record of a relevant conversation is a relevant fact and is admissible as res gestae under Section 7 of the Evidence Act. Adverting to the argument that Section 25 of the Indian Telegraph Act was contravened the learned Judges held that there was no violation. At the same time, the question of admissibility of evidence illegally obtained was discussed. The law was laid down as follows:

"There is warrant for the proposition that even if evidence is illegally obtained it is admissible. Over a century ago it was said in an English case where a constable searched the appellant illegally and found a quantity of offending article in his pocket that it would be a dangerous obstacle to the administration of justice if it were held, because evidence was obtained by illegal means, it could not be used against a party charged with an offence. See Jones V. Owen (1870) 34 JP

759. The Judicial Committee in Kumar, Son of Kanju V. R [1955 1 All E.R. 236] dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence."

CBI vs. Sh. Ashutosh Verma & Ors. Page 77 of 160

223. In the case of Bharati Tamang vs. Union of India, 2013 (15) SCC 578, it is held as under:

23. A close reading of the above passage discloses that barring an express or implied prohibition in the Constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out. In other words, what has been emphasized by the Constitution Bench is that the test of admissibility of evidence lies in relevancy and unless there is an express or necessarily implied prohibition in the constitution or other law, evidence obtained as a result of illegal search or seizure is not liable to be shut out. Apparently and justifiably the said legal position as propounded always have universal application, as in order to dispense justice and ensure that the real culprits are brought to book, the investigating agency should make every endeavour to unearth the truth by scrutinizing and gathering every minute details and materials and place it before the concerned adjudicative machinery in order to enable the Court examining the guilt or otherwise of an accused to reach a just conclusion.

224. In the case of Dharambir Khattar vs Union of India & Another, 2012, it is held as under: "44. It is apparent that the Supreme Court categorically held that the question of admissibility of a tape recorded conversation illegally collected or obtained was no longer in issue in view of the decision in R.M. Malkani (supra), where the Supreme Court held that a contemporaneous tape record of a relevant conversation was a relevant fact and was admissible. The Supreme Court clearly held that the non compliance or inadequate compliance with the CBI vs. Sh. Ashutosh Verma & Ors. Page 78 of 160 provisions of the said Telegraph Act did not per se affect the admissibility."

225. In the case of Ashok @ Bobby & Ors. vs. State, 2016 (1) AD (Delhi) 198, it is held as under:

77. Interestingly, in the context of argument as to admissibility of tape recording of the conversation obtained by illegal means under the Indian Telegraph Act, in R.M. Malkani v. State of Maharashtra 1973 (1) SCC 471, the Supreme Court, affirming the proposition that "even if evidence is illegally obtained, it is admissible", observed as under :

"24. It was said by counsel for the appellant that the tape recorded conversation was obtained by illegal means. The illegality was said to be contravention of Section 25 of the Indian Telegraph Act. There is no violation of Section 25 of the Telegraph Act in the facts and circumstances of the present case. There is warrant for proposition that even if evidence is illegally obtained it is admissible. ... The Judicial Committee in Kuruma, Son of Kanju v. R. [1955 AC 197] dealt with the conviction of an accused of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches. The Judicial Committee held that the evidence was rightly admitted. The reason given was that if evidence was admissible it matters not how it was obtained. There is of course always a word of caution. It is that the Judge has a discretion to disallow evidence in a criminal case if the strict rules of admissibility would operate unfairly against the accused. That caution is the golden rule in criminal jurisprudence.

CBI vs. Sh. Ashutosh Verma & Ors. Page 79 of 160

30. It was said that the admissibility of the tape recorded evidence offended Articles 20(3) and 21 of the Constitution. The submission was that the manner of acquiring the taperecorded conversation was not procedure established by law and the appellant was incriminated. The appellant's conversation was voluntary. There was no compulsion. The attaching of the taperecording instrument was unknown to the appellant. That fact does not render the evidence of conversation inadmissible. The appellant's conversation was not extracted under duress or compulsion. If the conversation was recorded on the tape it was a mechanical contrivance to play the role of an eavesdropper. In R. v. Leatham [(1861) 8 Cox CC 198] it was said "it matters not how you get it if you steal it even, it would be admissible in evidence. ..."

(emphasis supplied)

78. The Constitution Bench of the Supreme Court in Pooran Mal vs. Director of Inspection (Investigation) 1974 (1) SCC 345, reiterating the view taken, inter alia, in Barindra Kumar Ghose (supra) ruled thus:

"... It would thus be seen that in India, as in England, where the test of admissibility of evidence lies in relevancy, unless there is an express or necessarily implied prohibition in the Constitution or other law evidence obtained as a result of illegal search or seizure is not liable to be shut out."

(emphasis supplied)

79. The above law was followed and the contemporaneous tape record of a relevant CBI vs. Sh. Ashutosh Verma & Ors. Page 80 of 160 conversation accepted as relevant fact and held to be admissible under Section 7 of Evidence Act, regardless of the deficiencies or inadequacies in compliance with the provisions of the Telegraph Act, in the case of State (NCT of Delhi) vs. Navjot Sandhu 2005 (11) SCC 600, holding as under :

"...these deficiencies or inadequacies do not, in our view, preclude the admission of intercepted telephonic communication in evidence. It is to be noted that unlike the proviso to Section 45 of POTA, Section 5(2) of the Telegraph Act or Rule 419A does not deal with any rule of evidence. The noncompliance or inadequate compliance with the provisions of the Telegraph Act does not per se affect the admissibility."

(emphasis supplied)

226. In the recent case of Deepti Kapur vs. Kunal Julka, CM (M) 40/2019 dated 30.06.2020, the Hon'ble Delhi High Court has held that the decision in Puttaswamy (Supra) does not allude to any change in the principles of admissibility of evidence by reason of recognition of privacy as a fundamental right; and in fact the principle of Pooranmal has been followed by the Hon'ble Supreme Court as recently as 2019 in Yashwant Sinha (Supra), which is a post Puttaswamy judgment, though in the context of documents procured illegally from a Ministry and not in breach of any fundamental right.

227. Therefore, even if the original order of Secretary of MHA has not been exhibited, still, the recorded conversation from the Special CBI vs. Sh. Ashutosh Verma & Ors. Page 81 of 160 Unit can be referred and relied on as admissible evidence in this case.

228. It is further the submission of the accused that the purported intercepted conversations are inadmissible in evidence and the facts of this case are in the teeth of decisions passed by the Hon'ble Delhi High Court. Reliance is placed on Jagdeo Singh vs. State, Crl. Appeal No. 527/14 decided by Hon'ble Delhi High Court on 11.02.2015. A perusal of the said judgment shows that the facts are entirely different in that case. In that case, the intercepted conversations were not looked into for any purpose whatsoever because the person who had given the Certificate u/s 65 B of the Evidence Act had not made a copy of intercepted conversations from the server of the Special Cell. PW1 of that case had downloaded and handed over the recorded conversations to PW17 of that case and Certificate u/s 65 B of the Evidence Act was given by PW17 and not by PW1 or by any other person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities. In these circumstances, the Hon'ble High Court held that the electronic evidence in the form of intercepted conversations cannot be looked into by the court for any purpose whatsoever.

229. On the other hand, in the case in hand, the Certificate u/s 65 B of Evidence Act has been given by PW21 of Special Unit who was competent to give that Certificate.

CBI vs. Sh. Ashutosh Verma & Ors. Page 82 of 160

230. From this judgment, it is also observed that the sample voice and questioned sample were sent to CFSL for matching. It was because there was no other prosecution witness to identify the questioned sample. It was not sent to rule out the tampering. For ruling out the tampering, original recording device is required. However, so far as Special Unit is concerned, the conversations are automatically saved in the server through the server of mobile service provider without any human intervention and since there is no manual intervention, it could not have been tampered with. In case in hand, there are several witnesses who have identified the voice of accused persons and therefore there was no need for sending the sample voice of Sh. Bipin Shah and the questioned voice to CFSL for the purposes of matching. Therefore, seeing from all angles, this judgment of Jagdev Singh (Supra) is not attracted to the case in hand.

231. The other submission of the accused is that recorded conversations are admissible purely for the purposes of corroboration. It is submitted that there is no primary or circumstantial evidence to prove that Accused No. 1 met Accused No. 4 at either Ashoka Coffee Shop or Golf Links in the manner alleged by CBI, therefore, the purported calls are irrelevant. It is submitted that there is no primary or circumstantial evidence supporting CBI's allegation that Accused No. 1 made purported changes/alterations/dilutions in the Appraisal Report and that CBI vs. Sh. Ashutosh Verma & Ors. Page 83 of 160 Accused No. 1 and Accused No. 4 allegedly held meetings on 22.02.2008 and 23.02.2008. The purported intercepted calls cannot be relied on in the absence of any substantive evidence to support the allegations of CBI. Reference is made to Mahavir Prasad Verma vs. Dr. Surinder Kaur, (1982) 2 SCC 258 to submit that tape recorded conversations can only be relied upon as a corroborative piece of evidence to the conversation about which a party to the conversation may have deposed and that in the absence of substantive evidence of any such conversation, the tape recorded conversation cannot be relied on. Reliance is also placed on Sri Ramareddy vs. V.V. Giri, (1970) 2 SCC 340 and Anurag Vardhan vs. CBI, 2003 (69) DRJ 583.

232. Presently, the court is dealing with point for determination, whether the recorded conversations in CD Ex. PW21/5 is admissible or not? When the court will deal the other points for determination, at that time it will be discussed whether the recorded conversations are supported with any primary or circumstantial evidence can be relied on to decide the guilt of the accused.

233. Uptill now, the court has dealt with the objections on behalf of A1 Sh. Ashutosh Verma to the admissibility of CD Ex. PW21/5.

234. So far as written submissions on behalf of A4 Sh. Bipin Shah are concerned, submissions pertaining to tampering of seizure memo dated 30.05.2008 and intercepted calls has already been CBI vs. Sh. Ashutosh Verma & Ors. Page 84 of 160 discussed above. It is also discussed about the seal of CFSL on the envelope containing CD of 134 calls.

235. This court will now take up the submission regarding seal of SU Unit. The submission is that CBI has not brought forth any evidence in the form of documentary or oral to prove or to intimate the status of the seal which was used to seal the sealed packet set to contain RCIR and one Compact Disc containing 134 calls. Submission is that CBI has failed to show that the said seal was kept safely and was not tampered with. It was incumbent upon CBI to prove that the seal used for sealing the packet Ex. PW21/4 was with an independent source where CBI did not have access to it and it was further incumbent upon CBI to obliviate the possibility that they did not have access to the said seal post 30.05.2008 and could not have been used by them again at any point of time. Further, the CBI has also not deposited the said seal in the Malkhana nor have they filed the said seal along with the chargesheet neither have they produced the same before this court. The present status of the seal post 30.08.2008 is unknown and does the possibility of seal affixed on the envelope Ex. PW 21/4 being tampered by CBI, cannot be ruled out. Reliance is placed on Amarjeet Singh & Anr. vs. State, 1995 (32) DRJ (DB)

110.

236. The objection of the accused can be met in two ways. One, it is already noted above that there was no possibility for the seal of CFSL on the envelope Ex. PW21/4. The same is merely a result CBI vs. Sh. Ashutosh Verma & Ors. Page 85 of 160 of oversight. Supposing, the investigating officer had the Special Unit seal available with him, he would not have filed Ex. PW21/4 with the seal of CFSL assuming he had sent the CD to CFSL. If the seal was with him, he could have easily used that seal to present the envelope Ex. PW21/4 with the seal of CBI SU. It is reiterated that this observation is only to meet the arguments of the accused, otherwise, this court is of the opinion that Ex. PW 21/4 had no possibility of having seal of CFSL and mentioning of CFSL in place of CBI SU is oversight. The second reasoning is that PW21 was the best person to depose the status of seal after he had sealed Ex. PW21/4 and had given specimen seal, Ex. PW21/6. A reading of his examinationinchief suggests that the seal remained with PW21. He had given only the specimen seal Ex. PW21/6 to the IO. He nowhere speaks that the seal was also handed over to IO. What is more important is that inspite of thorough crossexamination of PW21 on behalf of all the three accused, he was not put a single question regarding status of the seal. The inference is that if such a question was put, the witness would have given the explanation, most probably the explanation that the seal remained with Special Unit and even could have produced the same in the court if it was so directed by the court on the request of the accused. When a witness who could have given a good explanation is not asked on a particular aspect, such a submission cannot be entertained only during final arguments. Such a question was also not put to the IO/PW59 when he was in the witness box. He was not given a suggestion that Special Unit CBI vs. Sh. Ashutosh Verma & Ors. Page 86 of 160 seal was with him and therefore he had tampered with the CD Ex. PW21/5.

237. Therefore, the submission of the accused regarding status of seal of SU Unit is repelled.

238. The submission regarding procedure laid down in CBI Manual and the same being mandatory has also been discussed in the earlier part of this judgment.

239. It is also an objection that no witness has been examined from Malkhana to show that envelope Ex. PW21/4 was in fact deposited in Malkhana by PW59. Whenever an article/case property is deposited in the Malkhana, a Malkhana entry reference number is mentioned on the said article/case property to identify the same. In the present case, a perusal of the envelope Ex. PW 21/4 would reveal that there is no Malkhana entry reference number on Ex. PW21/4 which goes on to show that the said envelope Ex. PW21/4 containing the said RCIR and CD of 134 files was never deposited by the IO in the Malkhana and the said case property remained in the custody of the IO and more so at the complete disposal of the IO throughout. The IO in order to cover up his misdeeds has in a very clandestine manner prepared a separate list of articles Ex. PW59/D15 which he has filed along with the chargesheet as Annexure 'C'. In the said document at Sr. No. 8, the IO has mentioned a Malkhana number i.e. MR452/2008 with regard to the envelope Ex. PW21/4 to show that the said envelope was deposited in the Malkhana. Had the said claim of CBI vs. Sh. Ashutosh Verma & Ors. Page 87 of 160 the IO been proved then the same Malkhana number would have appeared on the envelope Ex. PW21/4. Reliance is placed on Prempal Singh vs. State of Delhi, 2000 (55) DRJ, Rajan Ali vs. State, 81 (1999) DLT 194, Prem vs. State, 1996 SCC Delhi 936, Saifulla vs. State, 1993 (25) DRJ 248 and Aayub Khan vs. State, Crl. Appeal 165/1989 decided on 20.12.1999.

240. The submission of the accused is not factually correct.

241. The evidence of PW12 was recorded on 31.01.2017 when the observation of the court was:

"At this stage, one envelope bearing court seal is produced and the same is opened. On opening the envelope, it found containing another envelope bearing inscription MR 452/08. It is found containing a CD ROM which is already Ex. PW1/A...".

242. Further, as per the ordersheet of this court dated 19.03.2021, the observations are:

"In continuation of the orders passed in the earlier half of the day on the application of CBI, CBI has produced one Yellow envelope on which it is printed ON INDIA GOVERNMENT SERVICE on which it is handwritten 134 calls, MR 452/08 RC AC 1 2008 A0001 CBI vs. Ashutosh Verma containing four seals of Special Judge, CBI2, PHC, New Delhi. It is also written on the envelope "Opened in front of Court on 24.05.2018 and sealed". It is containing Sony CDR Ex. PW21/5 (Mark PW1/A) and another envelope Ex. PW21/4. The same are again sealed in a new envelope under the seal of this court".

CBI vs. Sh. Ashutosh Verma & Ors. Page 88 of 160

243. In view of this, there is no merit in the submission of the accused that MR No. 452/08 was not written on the envelope Ex. PW21/4.

244. The submissions regarding Voice Memo of the accused have already been discussed in earlier parts of this judgment.

245. Additionally, Ld. Counsel has relied on State (Government of NCT of Delhi) vs. Akhil Ahuja & Ors., 2017 SCC Online Delhi 11768. A perusal of the judgment shows that the recorded conversation in that case was in the form of a ransom call recorded over an audio cassette. The cassette was not accompanied with Certificate u/s 65 B of Evidence Act.

246. In the case in hand, the recording is by Special Unit which is automatic without any human intervention and is duly accompanied with Section 65 B of Evidence Act.

247. Therefore, the relied on judgment is not applicable to the facts of the case in hand. The submissions that recorded conversation is only corroborative evidence has also been noted in the earlier part of the judgment. Tampering of intercepted calls and seizure memo dated 30.05.2008 being forged and fabricated have also been discussed during the arguments of A1 Sh. Ashutosh Verma. Submissions regarding tampering of calls related to PW46 Sh. Shakti Verma, investigation copy of Ex. PW21/5, Union of India Orders passed by the Secretary, Government of India, 65 B Certificate under Evidence Act, Requisition letters of CBI for CBI vs. Sh. Ashutosh Verma & Ors. Page 89 of 160 intercepted calls, position of Recorded Call Information Report have already been taken into consideration.

248. Lastly, the submission is that original hard drives or its mirror image of the hard disk were not seized.

249. It is also noted earlier that it was not a case of recording on micro cassette recorder and no case law has been cited to show precedent where the directions are that the computer system of Special Unit should give mirror image or original hard drives for forensic examination. The reason for the same is that the recordings on the system of Special Unit are without human intervention. It is again noted that the accused are submitting that the call recordings have been tampered. They are not denying the entire calls in toto. Their stand during their statement u/s 313 of Cr.P.C. is that the calls are inadmissible. The challenge to admissibility has been repelled by this court as there is proper and valid certificate u/s 65 B of the Evidence Act. Once the challenge to inadmissibility has failed, there is nothing further submitted by the accused in what manner there is tampering. They have not stated that a particular conversation is tampered with. They have not made good their submission of tampering because tampering can only be when out of the entire conversation, some conversation is denied.

250. The objections regarding inadmissibility of CDR, Telegraph Rules in relation to intercepted calls are already noted and discussed in the earlier part of the judgment.

CBI vs. Sh. Ashutosh Verma & Ors. Page 90 of 160

251. There is another objection that the transcripts are not signed by any witness.

252. The transcripts have been exhibited when the witness identified the voice of the accused and his own voice in the conversation and admitted the correctness of the transcripts which takes care of not signing of the transcripts by any witness during investigation.

253. On behalf of A2 Sh. Suresh Nanda, the arguments were addressed on 16.10.2020, 21.10.2020 and 28.10.2020. These arguments are recorded in detail in the ordersheets of respective dates.

254. So far as present point for determination is concerned, the submissions are that the order of Home Ministry permitting recording of telephonic conversation is not proved and therefore those recorded conversations are not admissible in evidence. Moreover, call records are corroborative evidence and not primary evidence. These submissions have already been discussed in the earlier parts of the judgment.

255. As a result of the above discussion, the present point of determination is answered holding that CD Ex. PW21/5 containing 134 conversations and SMSs is admissible in evidence. The same has not been tampered with in any manner whatsoever. Those recorded conversations where the voice of the accused have been identified by the independent witnesses would be referred and relied upon for deciding the present case.

CBI vs. Sh. Ashutosh Verma & Ors. Page 91 of 160

256. The second point for determination is whether CD containing 32 calls is admissible in evidence?

257. This point for determination also hinges heavily on the evidence of PW21 Sh. M.C. Kashyap from Special Unit, CBI, New Delhi. He has deposed that on 23.08.2012, he had burnt recordings of 32 calls on two CDs. One of these CDs along with Call Recorded Information Report was sealed in an envelope with the seal of SU and handed over to the IO through a seizure memo dated 23.08.2012. The other CD along with Recorded Call Information Report was handed over to the IO for investigation purposes. Seizure memo dated 23.08.2012 was proved as Ex. PW21/7 (D

64). A perusal of seizure memo shows that one sealed packet said to contain Recorded Calls Information Report and one CD containing voice content of 32 calls duly signed by Sh. M.C. Kashyap and one unsealed Recorded Calls Information Report along with one Compact Disc was given to the IO for daytoday investigation. Seal on the packet was replicated on seizure memo and also on a separate sheet as specimen sample of seal. The Certificate u/s 65 B along with annexure of call recording was exhibited as Ex. PW21/8 and PW21/9 respectively. The envelope through which the witness had handed over the seized articles by the IO was proved as Ex. PW21/10. The Call Information Report was exhibited as Ex. PW21/11 and the CD was exhibited as Ex. PW21/12.

CBI vs. Sh. Ashutosh Verma & Ors. Page 92 of 160

258. Ex. PW21/12 was played before PW22 Sh. Nikhil Nanda, who admitted the correctness of the conversation between him and A1 Sh. Ashutosh Verma on 09.02.2008 and the transcript was exhibited as Ex. PW21/3. Similarly, conversation recored in Call No. 5 dated 18.02.2008, Call No. 9 dated 21.02.2008, Call No. 14 dated 27.02.2008, Call No. 17 dated 28.02.2008, Call No. 18 dated 29.02.2008, Call No. 19 dated 29.02.2008, Call No. 20 dated 29.02.2008, Call No. 24 dated 03.03.2008, Call No. 28 dated 07.03.2008 and Call No. 32 dated 08.03.2008 was admitted to be the conversation between him and Sh. Ashutosh Verma and the transcripts were exhibited as Ex. PW22/4 to Ex. PW22/13.

259. During crossexamination on behalf of A1 Sh. Ashutosh Verma, no question was put to the witness regarding the recording of the conversations and their transcripts. The response of the accused no. 1 to the recorded conversations and their transcripts is that the same are inadmissible. The reason for calling these recorded conversations and transcripts as inadmissible was that Certificate u/s 65 B in support of the CD Ex. PW12/12 was not mentioned in the seizure memo Ex. PW12/7. This objection is similar to the objection on inadmissibility of Ex. PW12/5 containing 134 calls as the Certificate u/s 65 B in support of the CD was not mentioned in the seizure memo Ex. PW21/1. This court has already discussed this aspect in detail to arrive at the conclusion that there is no infirmity in case the Certificate u/s 65 B of Evidence Act is not mentioned in the seizure memo because the same in any case CBI vs. Sh. Ashutosh Verma & Ors. Page 93 of 160 was filed along with the chargesheet and as per the judgment of Hon'ble Supreme Court in the case of Arjun Pandit Rao, even if such a certificate is not filed along with the electronic evidence, the court shall summon the same from the competent authority so that the electronic evidence becomes admissible.

260. All that reasoning is not required to be repeated again.

261. Therefore, this court is of the opinion that the challenge of the accused to the admissibility of the Certificate u/s 65 B of Evidence Act has no merits. Moreover, unlike the objection on seal in the case of CD containing 134 calls, there is no such objection. For Ex. PW12/12, the CD containing 32 calls, the Recorded Call Information Report is also available as Ex. PW21/11.

262. The submissions of the accused regarding CD containing 134 calls and 32 calls are common and have been discussed above and are not required to be discussed again.

263. Therefore, in the second point for determination, it is held that CD Ex. PW21/12 is admissible in evidence and the conversations where the voice of accused has been identified shall be referred and relied upon for deciding the case.

264. The third point for determination is whether CCTV footage of Intercontinental Hotel, Nehru Place, New Delhi is admissible?

265. CBI has examined PW13 Sh. Suresh Kumar Rajput for proving the CCTV footage of Intercontinental Hotel, Nehru Place, New CBI vs. Sh. Ashutosh Verma & Ors. Page 94 of 160 Delhi on 04.03.2008 to prove the meeting of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah. PW13 was Senior Security Officer of the Hotel. He had provided certain articles and documents to CBI vide seizure memo dated 14.03.2008 which was exhibited as Ex. PW13/1 (D19). He had handed over an envelope to CBI which was exhibited as Ex. PW13/3. The envelope contained a CD which was exhibited as Ex. PW13/5. An objection was taken that the CD is not admissible as there is no Certificate u/s 65 B of the Evidence Act in support of this CD.

266. The submission of the accused in this regard is that no witness has identified the accused persons in the footage. The other objections are regarding Certificate u/s 65 B of the Evidence Act, hard drive of the recording system was not seized, the seal used in seizure of the CD is also not seized and there is no forensic opinion to determine the authenticity and rule out possibility of tampering in the CD. It is also submitted that as per PW59/IO, the mirror image/clone copy of the hard drive of the system was not obtained and he had not obtained forensic opinion regarding authenticity of CCTV footage during investigation.

267. The CCTV footage Ex. PW13/5 is secondary electronic evidence and before being admissible, Certificate u/s 65 B of Evidence Act is sinequanon. There is, admittedly, no such certificate available on record. This court is again referring to the judgment in the case of Arjun Panditrao Khotkar (Supra), where it is held in para 45 that in a factcircumstance where the requisite certificate has been CBI vs. Sh. Ashutosh Verma & Ors. Page 95 of 160 applied for from the person or the authority concerned, and the person or authority either refuses to give such certificate or does not reply to such demand, the party asking for such certificate can apply to the court for its production under the provisions aforementioned of the Evidence Act of CPC or Cr.P.C. (The Hon'ble Supreme Court referred to Section 165 of the Evidence Act and Section 91 of Cr.P.C. in this regard). It is further held that once such application is made to the court, and the court then orders or directs that the requisite certificate be produced by a person to whom it sends a summons to produce such certificate, the party asking for the certificate has done all that he can possibly do to obtain the requisite certificate. It is further held in para 50 that in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the judge conducting the trial must summon the person/persons referred to in Section 65 B(4) of the Evidence Act, and require that such certificate be given by such person/persons. This, a trial court ought to do when the electronic record is produced in evidence before him without the requisite certificate in the circumstances aforementioned.

268. In the case in hand, CBI had not applied for from the hotel authorities any such certificate and therefore it is not a case where the certificate is denied to it. CBI has not applied to this court for production of the certificate from the management of the Hotel under the provisions of Evidence Act or Cr.P.C. It is not a case CBI vs. Sh. Ashutosh Verma & Ors. Page 96 of 160 where defective certificate was given or the certificate was demanded but was not provided by Hotel management. The question before the court is whether this court before deciding the case should have called for the certificate on its own from the management of the hotel? The recording is of 04.03.2008 and today more than 13 years are over. It is certain that the recording in the original device will not be available with the hotel any more, more so because no direction was given to it ever to store and maintain the said original recording in the original device by this court or any other authority. Therefore, no useful purpose would have been achieved by directing the hotel to provide the Certificate u/s 65 B of Evidence Act in the absence of original recording available with the hotel today.

269. This aspect has left the court surprised as there is no justification for the investigating agency for not taking this certificate from the hotel while taking the CCTV footage Ex. PW13/5. Moreover, there is no one who has identified A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah in the CCTV footage. Numerous witnesses were examined from Income Tax Department and others to identify the voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah. A witness who identified the voice of these accused persons could have easily identified them in the CCTV footage and it would have been proved that A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah had met on 04.03.2008 at Hotel Intercontinental, Nehru Place, New Delhi.

CBI vs. Sh. Ashutosh Verma & Ors. Page 97 of 160

270. Therefore, even if the footage Ex. PW13/5 shows A1 Sh.

Ashutosh Verma and A4 Sh. Bipin Shah present in Hotel Intercontinental, Nehru Place, New Delhi on 04.03.2008, they remain invisible to the court in the absence of Certificate u/s 65 B of the Evidence Act and in the absence of their identification by any witness.

271. The point for determination is therefore answered in favour of the accused holding that the CCTV footage Ex. PW13/5 is inadmissible in evidence.

272. The fourth point for determination is whether recorded conversation of 04.03.2008 at Intercontinental Hotel, Nehru Place, New Delhi is admissible?

273. This recorded conversation is by way of bugging.

274. The same was secretly recorded in the room of Hotel Intercontinental, Nehru Place, New Delhi while A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah were having a secret meeting there.

275. The transcription of the same is D60, Mark PW59/X57.

276. The allegations in this regard are recorded in para 16.32 to 16.36 as under: "16.32 The investigation has revealed that during the discussion Bipin Shah (A4) has said that "Ye theek hai ki unki madad se paisa aaya, apni jagah sahi hai" and further also discussed that they are not CBI vs. Sh. Ashutosh Verma & Ors. Page 98 of 160 good people to deal with. From the overall context of the conversation, it is clear that some money was taken by Bipin Shah (A4) and Ashutosh Verma (A1) from Suresh Nanda (A2) for doing favour in the Income Tax matter. It is also told by Ashutosh Verma (A1) "In all future dealings for all times to come, saal me kitna de dega, ek peti, do peti, tin peti, maximum aur kitna fees banta hai, aapka maximum itna banega". Bipin Shah (A4) told "Jyada se jyada das lakh". It is also told by Shri Ashutosh Verma (A1) "I tell you something जज अभभ आपनन जज whatever we did इसमम जज बनन ललयन इससन जयनदन कभभ इसकन 10% भभ शनयद नहभह आएगन ठभक". It is also discussed again by Ashutosh Verma (A1) that they are not good people to deal with. Bipin Shah (A4) informed "इस बनर बजल रहन थन कभ he said ki aap दन ख लज कभ we stand committed to each other on the issues that we have discussed. I said ठभक हह . He said as far as possible how best this can given me a clean chit. You see that has happened. It will definitely communicate to say how good it can be for proving it to say that there is no nexus between the defence and whatever investment which has come in and secondly if the ultimate summary boils down to whatever those 20/30 crores, whatever that"

16.33 it is revealed that as Ashutosh Verma (A1) reacted on the discussion of Bipin Shah (A4) and discussed "No, I have not put a figure in the ultimate summary but I have removed that allusion to defence things though it has been discussed in the main this thing"

16.34 The investigation has revealed that Bipin Shah (A4) discussed that they should meet Suresh Nanda (A2) and make him aware about the benefit given to him by Ashutosh Verma (A1) through Bipin CBI vs. Sh. Ashutosh Verma & Ors. Page 99 of 160 Shah (A4). Shri Ashutosh Verma (A1) told Shri Bipin Shah (A4) that if Suresh Nanda (A2) tried to do something wrong (if Nanda leaks the deal with Ashutosh Verma (A1)0, then immediately he may send an additional report also.

16.35 It is revealed from the hotel conversation that while preparing the Appraisal Report, Nandas derence nexus was removed by Ashutosh Verma (A1) on the suggestion of Bipin Shah (A4). It is also discussed by Ashutosh Verma (A1) that Suresh Nanda (A2) generally did not pay the money to anybody unless he was armtwisted ["actually yeh sidhe tarike se iska paisa nikalne ka wahi tarika hai ki you screw his arm."] There is also discussion that one chart was submitted by Bipin Shah (A4) to Ashutosh Verma (A1) and the same was incorporated in the Appraisal Report without any changes. Throughout the discussion, Ashutosh Verma (A1) had given an impression that he had already diluted the Appraisal Report on certain issues and had left the scope for further relaxing Tax Liabilities. Furthermore, he appeared to be amenable to make further changes as suggested by Bipin Shah (A4).

16.36 It is also revealed from the conversation held from the hotel that there is discussion by Bipin Shah (A4) that "there is limit to amount of money you can make by these methods. Harass karo assessees sey le lo" and further Ashutosh Verma (A1) confirmed saying "and I think, I have already reached that point". The said discussion clearly shows that Ashutosh Verma (A1) had already indulged in corrupt practices for obtaining reward/illegal gratification from the assessee."

CBI vs. Sh. Ashutosh Verma & Ors. Page 100 of 160

277. This recording of purported conversation between A1 Sh.

Ashutosh Verma and A4 Sh. Bipin Shah has substantial incriminating evidence to prove the charge framed against the accused persons. This CD was sought to be played before PW12 but was objected on behalf of the accused in the absence of Certificate u/s 65 B of the Evidence Act. The same was marked PW12/B. The response of PW12 to the conversation was that 'probably' it contains the voice of Sh. Ashutosh Verma. This recording was again sought to be played by prosecution before PW18 but the observation of the court, as recored on 18.02.2017 during evidence of PW18 is that:

"The aspect of voice identification of this witness has been covered in the earlier recording which were heard by this witness. Therefore, it is only going to be a repetitive exercise as on the basis of voices already recognized by the witness today a call is to be taken by the court about the voices in that conversation".

278. Therefore, there is no voice identification of this CD.

279. It is the submission of the accused that the purported bugged conversation is inadmissible as the original recording device or hard drive/memory chip has neither been produced before this court nor has been sent to CFSL expert to rule out tampering. CBI has not produced the person who recorded the conversation in the witness box as its witness. Neither any Hotel staff has proved presence of A1 Sh. Ashutosh Verma in the Hotel nor is there any CCTV footage in that regard. CBI did not seize or seek to collect CBI vs. Sh. Ashutosh Verma & Ors. Page 101 of 160 any call detail/cell ID location chart from the Nodal Officer when it seized the purported CDRs of the accused. An adverse inference ought to be drawn against the CBI for failure to seize cell location details of the Accused No. 1 for 04.03.2008 u/s 114(g) of the Evidence Act that if the said details were seized, they would not support the case of the prosecution. There is no handing over/taking over/recovery memo recording the date of seizure and the particulars of the device used in recording of the conversation, Certificate u/s 65 B to make secondary evidence in the form of the purported CD admissible in evidence or the name of the person who recorded the purported conversation. It is submitted that PW 59, in his evidence dated 31.01.2018 has stated that SP Ramnish informed him that the CD lying with the SP was given by a source. However, SP Ramnish has not been examined as a witness in this case. It is submitted that as per crossexamination of PW59 dated 31.01.2008, IO had received two CDs, one from SP Ramnish prior to 12.03.2008 and one from alleged source on 12.03.2008. It is submitted that the fact that SP Ramnish allegedly received a CD from alleged source is not mentioned in the chargesheet or case diary. Further, said CD was not filed with the chargesheet, deposited in the Malkhana or sent to CFSL. The transcript of this CD was not prepared in the presence of independent witnesses. PW59 has further revealed the creation of a third copy of the purported recorded conversation being his laptop wherein the purported recorded conversation was allegedly stored by the witness and used for daytoday investigation. The source CD was CBI vs. Sh. Ashutosh Verma & Ors. Page 102 of 160 deposited in Malkhana in the year 2012, after four years after the same was received and the same remained in the Almirah of the IO for all these years. It is submitted that according to IO PW59, the source had declined to disclose the instrument on which the conversation was recorded. It reveals a possibility that the conversations were fabricated as active concealment of the instrument is equivalent to destroying the instrument used in making the recording. It is submitted that PW49, CFSL Expert was not provided hash value of the original recording and the device. Therefore, neither the date and time nor all possibility of tampering can be ruled out. In the absence of original recording, the expert could not render any opinion as to whether any editing was done in the CD and the CD writer software has the option to change the creation date and time of the CD. It is stated that the CD was played before several officials of Income Tax Department during the investigation before sending the same to CFSL. This is evident from Ex. PW58/D and Ex. PW59/DXA2. Therefore, the CFSL report cannot be relied upon. There is no document to show that a request was made to CFSL for making copies of CD for providing to the accused. It is submitted that CBI has not taken any steps before this court to compel the source produce the original recording device or the Certificate u/s 65 B of the Evidence Act. CBI cannot submit that the same is privileged information u/s 125 of Evidence Act. It is submitted that Section 65 B of Evidence Act is mandatory and dictate the admissibility of secondary electronic evidence, being special provisions applying over the CBI vs. Sh. Ashutosh Verma & Ors. Page 103 of 160 general law, irrespective of purported privilege. Reliance is placed on Public Prosecutor vs. M.N. Govindaraja Mudaliar & Ors., AIR 1954 Madras 1023. In this case, the IO had seized certain account books but did not give the name of the person from whom these books were seized and responded that these were got from the informant. When the name of informant was asked, an objection was taken u/s 125 of the Evidence Act that the witness be not compelled to disclose the name of the informant. The Trial Court held that the witness was not privileged from disclosing this information and matter was challenged before the Hon'ble High Court. It was held that when a Magistrate or a police official gets any information as to the commission of any offence, whence he got such an information is prevented from being given. The information as to the commission of the offence has already been given to the police official and if in consequence of that information given, he starts investigation and in the course of that investigation, he seizes the account books and produces them before the court, it cannot be said that the person from whom he seized the account books is the person whose name is prohibited u/s 125 of the Act from being given. In certain cases, it may be that the person from whom the account books are seized may be the informant. But what the section contemplates is only the prohibition of the source from whom the Magistrate or the police officer got information as to the commission of the offence and not as to the custody of any documents or other material objects, that CBI vs. Sh. Ashutosh Verma & Ors. Page 104 of 160 might have been seized and that might be tendered in evidence in support of the commission of the offence.

280. Mark PW12/B, the recording by bugging and D60, the transcription Ex. PW59/X57 are crucial for deciding the guilt of the accused. Unfortunately, neither the CD nor the transcripts have been exhibited.

281. Admittedly, the recorded conversation is secondary electronic evidence. It is not the case that inspite of making efforts, the authority competent to give the certificate did not give the Certificate u/s 65 B or gave a defective certificate. The submission on behalf of CBI is that if the Certificate was taken from the source, his identity would have got disclosed. Present situation is a peculiar situation, in as much as the article seized from the source is secondary electronic record. The law is well settled that unless and until the same is supported by Certificate u/s 65 B of the Evidence Act, the same is not admissible even though it may be relevant. CBI could not seize the original recording device otherwise there would have been no need for the Certificate as the primary electronic record requires no such certificate. Moreover, tampering is not satisfactorily ruled out in as much as the expert witness from CFSL, PW49 has deposed that since the original source of recording of date 3:10:048 prior to its transfer on CD was not examined by him and thus he cannot say whether it was subjected to editing or not. The witness also deposed that deletion/modification can be done in the original media in which CBI vs. Sh. Ashutosh Verma & Ors. Page 105 of 160 recording was done. This is possible from computer forensic. He also deposed that deleted data can be recovered using computer forensic from the original media if the file is deleted but modified data can be detected by audio forensic. If this is the reply, then the inference is that the detection of deletion could have been possible only from the original media. Moreover, the categorical stand of the witness is that in the absence of original source of recording of the date prior to its transfer on CD, it cannot be said whether the same was edited or not. If it is so, tampering is not completely ruled out. It is to be kept in mind that the CD was not sealed immediately on receiving from the source and sent for forensic examination then and there but remained in the Almirah of the IO for four years. No witness has identified the voice of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah. As per PW12, the conversation is probably spoken in the voice of Sh. Ashutosh Verma. He has deposed that till the end of CD, he has not been able to recognize any voice of Sh. Ashutosh Verma.

282. Resultantly, this point of determination is decided in favour of the accused holding that the CD Mark PW12/B and transcript Mark PW59/X57 are inadmissible in evidence though relevant in the absence of Certificate u/s 65 B of Evidence Act/and in the absence of original recording device on which the conversation was recorded.

283. The fifth point for determination is whether A2 Sh. Suresh Nanda and Associates would have gained by seeking favour from A1 Sh.

CBI vs. Sh. Ashutosh Verma & Ors. Page 106 of 160

Ashutosh Verma for diluting the Appraisal Report when A2 Sh. Suresh Nanda being NRI was not taxable in India during the relevant years?

284. Arguments on behalf of A2 Sh. Suresh Nanda as recorded on 28.10.2020 are that:

".... Sh. Suresh Nanda was falsely implicated in Barack Missile Case in 2006 and his passport was seized. He is nonresident Indian since 1984 and continues to be nonresident Indian till date. However, he was forced to stay in India as his passport was seized by Investigating Agencies. It was submitted that the impounding of passport was challenged upto Hon'ble Supreme Court and in the case of Suresh Nanda vs. CBI, 2008 (3) SCC 674, directions were given for release of the passport. The Assessing Officer raised tax demand treating him as resident Indian during the period when Sh. Suresh Nanda was in India under compulsion of impounding of his passport. The income earned by him abroad was treated as taxable income in India. However, ITAT set aside the order of AO and CIT and Ld. Counsel referred to para 65, 66, 67 and 68 of order passed in ITAT 2237. Ld. Counsel submitted that he had challenged the assessment order purely on legal grounds. It was argued that there was no reason for him to seek any favour from Sh. Ashutosh Verma as he was NRI and not taxable in India. Ld. Counsel submitted that the Hon'ble Delhi High Court in ITA 715/2014 vide orders dated 27.05.2015 upheld the order of ITAT and read para 20 to 25 from the said judgment. It was submitted that all the assessments have gone through judicial scrutiny as all the courts knew about the CBI case pending against Sh. Suresh CBI vs. Sh. Ashutosh Verma & Ors. Page 107 of 160 Nanda. Ld. Counsel submitted that even the challenge was rejected by Hon'ble Supreme Court....."

285. Only A2 Sh. Suresh Nanda has examined one witness in his defence, namely Sh. Ajay Wadhwa, who was a chartered accountant and later on registered as an Advocate. He deposed that he was representing Sh. Suresh Nanda pertaining to search and seizure conducted on 28.02.2007. He deposed that Sh. Bipin Shah is also a Chartered Accountant and was Director in some of the companies of Sh. Suresh Nanda and search and seizure was also conducted at his premises by Income Tax Department. He deposed that DCIT, Central Circle passed orders for seven assessment years in the case of Sh. Suresh Nanda raising a tax demand of nearly Rs.350 Crores. The appeals filed before Commissioner AppealsI against order of Assessing Officer were dismissed but the Income Tax Appellate Tribunal, Delhi deleted almost entire demands of tax liability so imposed and only negligible amount remained. Orders dated 24.07.2012, 21.02.2014 and 11.04.2014 of the ITAT were exhibited as Exhibit DW1/A, Exhibit DW1/B and Exhibit DW1/C respectively. He deposed that the department was aggrieved by the orders of ITAT and challenged the same before Hon'ble Delhi High Court but vide orders dated 25.02.2013 and 27.05.2015, the appeals were dismissed. The orders passed by Hon'ble Delhi High Court were exhibited as Exhibit DW1/D and Exhibit DW1/E respectively. He CBI vs. Sh. Ashutosh Verma & Ors. Page 108 of 160 further deposed that the SLP filed before Hon'ble Supreme Court was also dismissed on 17.07.2019, MarkDA.

286. A perusal of Ex. DW1/D which is judgment dated 25.02.2013 by the Hon'ble Delhi High Court shows that ITAT had remanded the matter back on certain issues and the fate of that remand order is not available on record. According to DW1, the tax raised was Rs.350 Crores. In the Order of the Hon'ble High Court, there is relief for a sum of Rs.10,51,20,000/ and for payments made to respondent/assessees's estranged wife Smt. Renu Nanda. The addition with regard to marriage expenses of the respondent/assessees's daughter was only remanded. Addition of Rs.65,85,000/ was also remanded. A perusal of Ex. DW1/E, judgment dated 27.05.2015 also does not show that the relief given to the assessee is for Rs.350 Crores which was the demand raised by DCIT, Central Circle for seven assessment years in the case of Sh. Suresh Nanda.

287. The court is not satisfied with the defence evidence that the entire demand of Rs.350 Crores was set aside by ITAT and affirmed by Hon'ble Delhi High Court. As noted earlier, the matter was remanded back by ITAT on several aspects and the fate after remand is not known. Therefore, this court is not satisfied with the defence evidence that the entire demand of Rs.350 Crores was set aside by ITAT.

CBI vs. Sh. Ashutosh Verma & Ors. Page 109 of 160

288. Besides the above, a perusal of the application for bail filed by A2 Sh. Suresh Nanda on 14.03.2008 reveals that there is not even a whisper that the accused is an NRI and his income is not taxable in India and therefore he would have gained nothing by bribing A1 Sh. Ashutosh Verma. Had it been so, the accused would not have remained in custody for more than 50 days and the court would have found favour that if his income is not taxable in India, why he will try to bribe A1 Sh. Ashutosh Verma.

289. Therefore, neither the accused have shown that the entire demand of Rs.350 Crores was set aside by ITAT nor they have shown that this has been their defence from day one when they filed the application for bail. Later on, the accused have got some relief from ITAT and from Hon'ble Delhi High Court but it is not pertaining to entire demand of Rs.350 Crores. In any case, this defence of NRI status has been taken subsequently which was not in the scheme of thinking of the accused at the time of his arrest. It is important to note that the Hon'ble High Court in para 27 of Ex. DW1/E has observed as under: "We must, however, add a caveat here. The conclusion reached by us on the facts and in the circumstances of the case at hand cannot be treated as a thumb rule to the effect that each period of involuntary stay must invariably be excluded from computation for purposes of Section 6(1)(a) of Income Tax Act. The view taken by us in the case of assessee here is in the peculiar facts and circumstances wherein he was inhibited from traveling out of India on account of such action of the law enforcement CBI vs. Sh. Ashutosh Verma & Ors. Page 110 of 160 agencies as was found to wholly unjustified. Here, it is important to notice that the Passport Impounding Order was invalidated as without authority of law. The finding on whether in a given case an assessees's claim to extended stay being involuntary, has to be fact dependent. For purposes of Section 61A, each case will have to be examined on its own merits in light of facts and circumstances leading to involuntary stay, if any, in India.

290. This order is in the peculiar facts and circumstances of the case and A2 Sh. Suresh Nanda was not sure of this defence at the time of his arrest that is why no such defence was taken in his application for bail.

291. It is equally important to notice that Ex. DW1/E notes that ITAT has directed AO to further inquire and verify the facts with regard to the investment made in Sonali Farms and recovery of what is described as unexplained cash. It shows that the accused ought to have brought on record the result of remand by ITAT.

292. Therefore, this court is of the opinion that: (1) total demand of Rs.350 Crores was not set aside by ITAT; (2) the accused has not brought on record final tax liability after remand of the matter by ITAT; and (3) at the time of arrest of the accused, he had no inkling about the defence of his NRI status vizaviz his income in India therefore such a defence is conspicuously absent in the applications for bail.

293. Therefore, this point for determination is decided holding that at the time of filing of Appraisal Report by A1 Sh. Ashutosh Verma, CBI vs. Sh. Ashutosh Verma & Ors. Page 111 of 160 the said Accused No. 1 was in a position to favour A2 Sh. Suresh Nanda by diluting the Appraisal Report.

294. The sixth point for determination is whether A1 Sh. Ashutosh Verma had diluted Appraisal Report on receiving illegal gratification from A2 Sh. Suresh Nanda to A4 Sh. Bipin Shah?

295. It is the submission of the accused that there is no investigation by the IO into purported manipulation/dilution of the appraisal report. Reference is made to para 7 and 11, Ex. PW59/D12 which is order dated 29.04.2008 passed by the Hon'ble Delhi High Court granting bail to the accused. In para 11 of the said order, the submission of CBI is recorded as under: "11. In response to a query by the Court as to the stage of investigation, Mr. Malhotra informs that over 20,000 documents had been recovered during the search and seizure operations at the various premises of Mr. Suresh Nanda and that Mr. Verma had himself prepared a report running to over 600 pages. He states that these documents are still in the process of being analyzed in order to ascertain in what manner, if any, the dilution of the appraisal report had taken place. In response to the another query whether there was anything to show that there had been suppression of incriminating documents, Mr. Malhotra again states that CBI is in the process of ascertaining this by analysing the documents and the report. On instructions, he submits that the documents concerning certain defence deals had been suppressed, although, the instant case is not directly related to such defence deals. Even as regards the exact amount of bribe alleged to have been demanded by Mr. Verma and paid to him, Mr. Malhotra states that CBI vs. Sh. Ashutosh Verma & Ors. Page 112 of 160 the precise amount is not yet known and the CBI is in the process of determining this. He, nevertheless, states that in all probability, the CBI would conclude the investigation and file a chargesheet within the stipulated time period in terms of Section 167 Cr.P.C."

296. It is also submitted that IO has admitted that he has not filed the list of documents seized by officials of Income Tax Department from the premises of A2 Sh. Suresh Nanda and A4 Sh. Bipin Shah along with the chargesheet. IO had seized the Appraisal Report but did not rely upon the same for filing the chargesheet and the same was not a relied upon document. Rather, the same was brought on record on the application of the accused u/s 207 Cr.P.C. He deposed that he had not inquired from the senior officers of the accused, if there is any flaw in the Appraisal Report or not. He has also deposed that he had not taken any independent opinion from any expert as to whether there was any flaw in the Appraisal Report or not. IO could not remember if any senior officer of A1 Sh. Ashutosh Verma had passed any order to reconsider the Appraisal Report. The IO had however, volunteered that a bare reading of the Appraisal Report could not show any deletion/minimization of income tax liability but the same is found discussed in the recorded conversation between accused persons. He deposed that he has not inquired from income tax officers as to what was the tax liability of Sh. Suresh Nanda and company before filing of Appraisal Report and after filing the Appraisal Report.

CBI vs. Sh. Ashutosh Verma & Ors. Page 113 of 160

297. It is the submission of the accused that all the evidence regarding Nanda Group was lying with the IT department, yet there was never any review of the Appraisal Report. The report was never remanded back for reinvestigation or recalculation. None of the official witnesses have stated there is any deficiency in the Appraisal Report.

298. PW59 had stated that:

"It is wrong to suggest that during investigation nothing concrete had emerged against the accused persons. It is wrong to suggest that the entire case of the prosecution is based on unauthorized interception of the calls and bugged conversation".

299. However, the written submission of A1 Sh. Ashutosh Verma, at Page 46 is totally contrary to the record and is as under: "v. PW59 in his crossexamination dated 27.04.2018 stated that during investigation nothing concrete had emerged against the accused persons and the prosecution case is purely based on unauthorized recorded conversations, which is totally manipulated and tampered [@TCR pg.411]."

300. In the facts and circumstances of this case, it appears that the evidence regarding dilution of the Appraisal Report could have come from PW58 Sh. Sabihur Rehman who was Additional Director, Income Tax (Investigation) Unit1, New Delhi and was the immediate superior officer of A1 Sh. Ashutosh Verma or the evidence regarding dilution could have come from PW12 Sh. Shailender Handa who was the Director (Investigation), Income CBI vs. Sh. Ashutosh Verma & Ors. Page 114 of 160 Tax Department. However, none of them have spoken about any dilution in the report. It is also a fact that the entire voluminous mass of documents seized from Sh. Suresh Nanda and associates was not reviewed and reexamined.

301. However, the evidence of PW12 Sh. Shailender Handa who was the Director (Investigation), Income Tax Department has thrown light on the aspect why it was not possible to review or reexamine the Appraisal Report.

302. PW12 has deposed that in February 2007, a search was conducted by Income Tax Department relating to Sh. Suresh Nanda group of companies. The search was conducted under the leadership of Sh. Ashutosh Verma who was the Deputy Director. After the search, the search report had to be forwarded to Additional Director who in turn had to forward the report to him and he had to forward the same to Commissioner Central (Income Tax) and a copy to Director General Investigation. The procedure regarding the preparation, compilation and the timelimit for preparation of the Appraisal Report is governed by guidelines laid down by CBDT. The search is to be completed within 60 days and report is to be filed within 60 days thereafter. The officer who prepares the appraisal report has to give a complete picture of the case starting from the date of search which would include an analysis of documents collected during search, his conclusion thereupon and his recommendations to the assessing officer. The appraisal report does not have any bearing on the tax liability of a CBI vs. Sh. Ashutosh Verma & Ors. Page 115 of 160 person directly because the assessment of taxes to be done by the assessing officer. However, the recommendation made therein has a strong bearing on the decision to be taken by the assessing officer. He deposed that in this case search was conducted on 27.02.2007 and till 28.02.2008, the appraisal report was not submitted. He had received a call from DG that this matter is already delayed and no further extension be granted and report be submitted by the next day. The witness had protested that it was a complex case and he would not be able to forward the report on the next day. The DG had written a letter on 29.02.2008, Exhibit PW12/A (D23), expressing his displeasure about delay in the report. In this letter, it was also mentioned that the last extension for submission of the appraisal report was granted up to 31.01.2008, considering that complex investigations were involved. Neither the Appraisal Report was filed so far nor any request for further extension was received. It was also mentioned in the letter that in case some enquiries are still pending these may be listed in the report for the guidance of the assessing authorities. The witness also proved letter dated 17.03.2008 as Exhibit PW 12/7 (D23) by which he had enclosed copy of letter dated 13.03.2008 to DGIT regarding the submission of the report in Suresh Nanda group of companies which was also proved as Exhibit PW12/8. In this letter, this witness has clearly mentioned that only executive summary of the report was given to him by Additional DIT on the evening of 28.02.2008 and on 29.02.2008, CBI vs. Sh. Ashutosh Verma & Ors. Page 116 of 160 the draft appraisal report was put up before this witness. In this letter, the witness had also mentioned that the draft appraisal report available in his office was handed over to CBI on 8/9.03.2008. The witness had also mentioned in the letter that in the forwarding letter, he could only highlight the major issues as understood from the executive summary. He also mentioned that his exposure to cases of this group was very limited. He also mentioned that this is a big case where investigations were going on for about a year and appraisal report runs into hundreds of pages and the seized material was very voluminous. In the light of likelihood of time barring matters being involved, it was necessary to forward the said appraisal report at the earliest. The witness also mentioned that in a situation like this, when hardpressed for forwarding it to the Central Circle, it was not possible for him to go into any details of the appraisal report.

303. Therefore, from the testimony of PW12, it is clear that the search was conducted in February 2007 under the leadership of A1 Sh. Ashutosh Verma, Deputy Director (Investigation). The search had to be completed within 60 days and Appraisal Report had to be filed within 60 days thereafter. Meaning thereby, the report should have been filed by June 2008. In the Appraisal Report, complete picture of the case is to be given starting from the date of search including analysis of documents collected during search, conclusion thereupon and recommendation to the Assessing Officer. These recommendations have a strong bearing on the CBI vs. Sh. Ashutosh Verma & Ors. Page 117 of 160 decision of the Assessing Officer. The Appraisal Report was pending for more than one year and extensions were given from time to time for filing the same but no extension was sought after the last extension upto 31.01.2008. PW12 had received a call from the DG directing that the Appraisal Report be filed the next day. On the next day, the DG, vide letter dated 29.02.2008 Ex. PW12/A (D23) had expressed displeasure about delay in the report. He wanted the report to be filed as it was and in case some enquiries were still pending, the DG directed that same may be listed in the report for the guidance of the Assessing Officer. PW 12 has mentioned in letter dated 13/14.03.2008 addressed to DG of Income Tax (Investigation), Ex. PW12/8 the urgency in the matter. The extract from the letter are as under: "2. Subsequently, during the course of CBI action at the room of Shri Ashutosh Verma, DDIT, the CBI team wanted to have copy of draft appraisal report available in my office. The same was handed over to them on 8th/9th March, 2008 along with the office copy of my D.O. letter dated 292.2008 to CIT (centralI). Later, on 10.3.2008 CBI team has also taken from my office a folder containing executive summary and two pages of order sheet put up to me by DDIT and Addl. DIT. No comments could be written by me on the order sheet because I had very little time for forwarding the said appraisal report. For the same reason in my forwarding letter I could only highlight the major issues as understood from the Executive summary and the background that I had acquired earlier while attending a joint meeting on the subject with senior officers of Central Circle, Delhi. As such my exposure to cases of this group was very limited. You would kindly CBI vs. Sh. Ashutosh Verma & Ors. Page 118 of 160 appreciate that this is a big case where investigations were going on for about a year and appraisal report runs into hundreds of pages. Seized material is very voluminous. Moreover, in the light of likelihood of Timebarring matters being involved as stated in your D.O. letter it was necessary to forward the said appraisal report to CIT Central Circle at the earliest. In a situation like this, when hard pressed for forwarding it to the Central Circle, it was not possible for me to go into any details of the appraisal report. As such, in the light of your D.O. letter the same had to be forwarded on 29th February, 2008 as extension limit for submitting appraisal report had already expired on 31.01.2008.

Sir, I may add here to assure you that in other ongoing cases care will be taken to submit appraisal report within the time allowed by your goodself."

304. Therefore, there was a possibility that some action related to assessments in these cases would be getting barred by limitation on 31.03.2008 and for this reason, it was necessary to forward the said Appraisal Report to the CIT Circle (Central) at the earliest. PW12, in a situation like this, when hard pressed for forwarding the report to Central Circle, it was not possible for him to go into any details of the Appraisal Report. More so for the reason, the extension limit for submitting Appraisal Report had already expired on 31.01.2008.

305. These are the compulsions of the Income Tax Department under which they had to forward the Appraisal Report as it is without PW 12 having gone into the details of the Appraisal Report.

CBI vs. Sh. Ashutosh Verma & Ors. Page 119 of 160

306. The question is if the Income Tax Department had its compulsions to forward the Appraisal Report as it is without reviewing and without reexamining more than 20,000 documents seized an year ago and the Appraisal Report itself comprising of 600 pages, why CBI did not got examined the documents and the report from some other expert.

307. Call No. 14 dated 17.02.2008 is between Sh. Ashutosh Verma and Sh. Bipin Shah using mobile phones in the name of Sh. Sudama Singh and Claridges Hotel respectively. Their voices have been identified by PW36, who was well conversant with A1 Sh. Ashutosh Verma as well as A4 Sh. Bipin Shah. The transcript of the conversation is Ex. PW36/6. In this conversation, Sh. Ashutosh Verma is telling A4 Sh. Bipin Shah that the first draft is submitted and it may take one month for approval. Sh. Bipin Shah is heard telling that there is pressure. Both planned to meet shortly.

308. Call No. 29 is between Sh. Ashutosh Verma and Sh. Bipin Shah dated 22.02.2008. The voices of both of them have been identified by PW18 Sh. G.K. Ravi, who is well conversant with their voices. During this conversation, Sh. Bipin Shah is confirming his arrival but Sh. Ashutosh Verma is telling him "Ok, how do we do it? Don't come to office".

309. In Call No. 40 dated 22.02.2008, Sh. Ashutosh Verma tells Sh.

Bipin Shah that they will be meeting at Ashoka Coffee Shop at 9 CBI vs. Sh. Ashutosh Verma & Ors. Page 120 of 160 'O' clock. Their voices have been identified by PW18 Sh. G.K. Ravi and the transcript is Ex. PW18/4.

310. As per Call no. 63, transcript of which is Ex. PW18/6, Sh.

Ashutosh Verma is apprehensive as some people were standing outside the place where he had to meet Sh. Bipin Shah and is asking him, who are they?

311. In Call No. 79 dated 03.03.2008 between Sh. Ashutosh Verma and Sh. Bipin Shah where their voices have been identified by PW18 and transcript is Ex. PW18/7, Sh. Ashutosh Verma is telling Sh. Bipin Shah that:

"Except for that, everything has been incorporated".

312. Sh. Bipin Shah is responding:

"yes yes I have also very very categorically and candidly conveyed."

313. This conversation tells two things. One, Sh. Ashutosh Verma did not incorporate some portion in the report. It shows he withheld something which should have been the part of Appraisal Report. Second, Sh. Bipin Shah conveyed the same to somebody very very categorically and candidly meaning thereby Sh. Bipin Shah was not pursuing Sh. Ashutosh Verma in his personal matter but for Nandas.

314. In Call No. 80, again between Sh. Bipin Shah and Sh. Ashutosh Verma where the voices have been identified by PW18 and CBI vs. Sh. Ashutosh Verma & Ors. Page 121 of 160 transcript is Ex. PW18/8, Sh. Bipin Shah is persuading Sh. Ashutosh Verma for a meeting with other persons so that those persons have a peace of mind and Sh. Ashutosh Verma is reluctant and unwilling to meet and suggests to meet some time later, somewhere else telling that:

"Nothing remains to be done".

315. Sh. Bipin Shah is telling Sh. Ashutosh Verma that:

"You said rest of the things are in place and they should not have any anxiety to that extent."

316. Sh. Verma is telling Sh. Bipin Shah that for that he will have to assure them. From this conversation, it is understandable that Sh. Ashutosh Verma is telling Sh. Bipin Shah that nothing remains to be done. Meaning thereby, everything else which had to be done to help, has already been done. It is also understandable from this conversation that Sh. Bipin Shah is seeking reassurance from Sh. Ashutosh Verma that rest of the things are in place and they should not have any anxiety to that extent. Sh. Ashutosh Verma is asking Sh. Bipin Shah to assure them for that.

317. In Call No. 82 Sh. Ashutosh Verma is telling Sh. Bipin Shah, as per transcript Ex. PW18/9 that they will discuss in detail tomorrow.

318. In Call No. 86, Ex. PW18/10 between Sh. Ashutosh Verma and Sh. Bipin Shah. Sh. Ashutosh Verma and Sh. Bipin Shah decided to meet on 04.03.2008 in the evening at Royal Park, Nehru Place.

CBI vs. Sh. Ashutosh Verma & Ors. Page 122 of 160

319. In Call No. 92, the conversation is between Ms. Mandeep and Sh.

Bipin Shah on 04.03.2008, whose transcript is Ex. PW53/6 and the conversation shows about reservation of Sh. Bipin Shah at Hotel Park, Nehru Place.

320. As per Call No. 98 dated 04.03.2008 between Sh. Ashutosh Verma and Sh. Bipin Shah, the transcript of which is Ex. PW 18/11, Sh. Ashutosh Verma is telling that he is standing outside the room of Sh. Bipin Shah.

321. As per Call No. 105 between Sh. Ashutosh Verma and Sh. Bipin Shah on 05.03.2008, transcript of which is Ex. PW36/7 two things are clear. First, Sh. Ashutosh Verma had made all those changes in the Appraisal Report as discussed with Sh. Bipin Shah and then took a fresh print, gave it for copy and got it bound by morning. Therefore, the Appraisal Report was given by him on 05.03.2008. Second, Sh. Bipin Shah is persuading Sh. Ashutosh Verma to have a meeting on coming Saturday and they discuss the hotel where the meeting can take place.

322. The conversation noted above proves that A1 Sh. Ashutosh Verma had diluted the Appraisal Report to help Sh. Suresh Nanda & Associates. Many of the conversations (part of D59) contained in Ex. PW21/5 have not been taken into consideration in the absence of voice identification of those conversations. The recording of conversation between A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah by bugging on 04.03.2008 at Hotel Intercontinental, Nehru Place, New Delhi has also not been taken CBI vs. Sh. Ashutosh Verma & Ors. Page 123 of 160 into consideration being inadmissible in evidence in the absence of Certificate u/s 65 B of Evidence Act. The original device used for recording was not seized and not sent to CFSL to rule out tampering and there is no voice identification in that recording. Similarly, the CCTV footage of Intercontinental Hotel of 04.03.2008 capturing meeting of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah, Ex. PW13/5 has also not been taken into consideration in the absence of Certificate u/s 65 B of Evidence Act. The reason why the CBI did not get the Appraisal Report examined by the expert seems to be the satisfaction before the start of trial that they have sufficient electronic evidence to prove the dilution of Appraisal Report. In case the recording of conversation between A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah at Hotel room on 04.03.2008 and the CCTV footage was found admissible, then along with conversation recorded in CD Ex. PW21/5 would have been sufficient to prove all the charge proved against the accused persons. Be that as it may, this point for determination is decided holding that A1 Sh. Ashutosh Verma had diluted the Appraisal Report but there is no evidence that he received illegal gratification from A2 Sh. Suresh Nanda through A4 Sh. Bipin Shah.

323. The seventh point for determination is whether the Appraisal Report given by A1 Sh. Ashutosh Verma had only a limited role in the income tax assessment of A2 Sh. Suresh Nanda and as such there is no motive or reward involved in the case?

CBI vs. Sh. Ashutosh Verma & Ors. Page 124 of 160

324. The submission of the accused is that he had limited role to the extent of conducting search and seizure action u/s 132 of I.T. Act read with paras 2.50 and 2.68 of the Search and Seizure Manual, CBDT. He was not the Assessing Officer and was not responsible for sending the Appraisal Report to CIT, Investigation, whose approved report is termed as Director's Report and is sent to the Assessing Officer. The Assessing Officer applies his mind independently to the Appraisal Report as the report is merely a departmental document. The Assessing Officer may call for a fresh return of income from the assessee for a search and seizure for past six years and seek replies in framing the assessment order. The work of Deputy Director (Investigation) is supervised by Additional Director, who is responsible for conduct of search operation by a unit constituted by the Director (Investigation) u/s 132 of I.T. Act. The Draft Appraisal Report is submitted to the Additional Director who makes an executive summary. The Additional Director (PW58 in this case) has the duty to ensure the correctness of the report and see whether all the material seized has been appraised by the Deputy Director (Investigation). The submission is that CBI has made allegations of purported dilution/manipulation of the Appraisal Report without even examining the Income Tax Officer (Investigation), the custodian of seized material, Assistant Director (Investigation), Director General (Investigation) as well as Deputy Commissioner (Central), who was the Assessing Officer in the present case. Therefore, the submission of the accused is that when he had a very limited role CBI vs. Sh. Ashutosh Verma & Ors. Page 125 of 160 in the assessment of income of A2 Sh. Suresh Nanda and his associates, why the assessee would pay any bribe to him when he was not in a position to show any favour.

325. The answer to this submission of the accused is available in the evidence of PW12 Sh. Shailender Handa. He has deposed that the officer who prepares the Appraisal Report has to give a complete picture of the case starting from the date of search which would include an analysis of documents collected during search, his conclusion thereupon and his recommendations to the Assessing Officer. The appraisal report does not have any bearing on the tax liability of a person directly because the assessment of tax is to be done by the Assessing Officer. However, the recommendation made therein has a strong bearing on the decision to be taken by the Assessing Officer. The witness has deposed that the Appraisal Report has a strong bearing on the decision of the Assessing Officer because the entire analysis of the documents, evidence etc. is to be done by Deputy Director (investigation) and he makes a recommendation on the basis of that analysis. In answer to the court question that if the officer preparing the appraisal report with holds some material, keeps it out of the appraisal report or dilutes the appraisal report in a manner which may help the assessee, would it in any manner be an obstacle in the decision of the assessing officer, the witness deposed that yes because the appraisal report is to give true and complete overview of the evidence collected and something like CBI vs. Sh. Ashutosh Verma & Ors. Page 126 of 160 this done and the Assessing officer to form his own independent opinion will have to go through the entire evidence again which would defeat the purpose of preparation of Appraisal Report and its submission to the Assessing Officer.

326. Therefore, the evidence of PW12 has brought out the significance of Appraisal Report and has shown that the role played by the officer submitting the Appraisal Report is not limited role.

327. Therefore, this point of determination is decided holding that the Appraisal Report given by A1 Sh. Ashutosh Verma had a significant role in the income tax assessment of A2 Sh. Suresh Nanda and as such there was sufficient motive or reward involved in the case.

328. The eighth point for determination is whether A1 Sh. Ashutosh Verma made corrections in the Appraisal Report on his laptop as asked for by A4 Sh. Bipin Shah?

329. It is mentioned in para 16.2 of the chargesheet that:

"There is also an allegation that Sh. Ashutosh Verma (A1) had shown the report prepared by him to Sh. Bipin Shah (A4) on his laptop and carried out the necessary changes in the report, as per the directions of Sh. Suresh Nanda (A2) and his son Sh. Sanjeev Nanda (A3) for diluting the same as well as for withholding/destroying the incriminating evidence before submitting the same to his senior officers."

330. The submission of the accused is that the crucial evidence i.e. the laptop which could have shown the alleged dilution was never CBI vs. Sh. Ashutosh Verma & Ors. Page 127 of 160 produced before this court. PW59/IO, despite seizing the laptop of A1 Sh. Ashutosh Verma and obtaining FSL Report opinion, Mark PW59/X85, as per which, no deletion/modification was found in the Appraisal Report, intentionally concealed this evidence from this court and stated in his crossexamination on 06.03.2018 that he did not find anything in the laptop regarding any deletion made in the Appraisal Report. It is submitted that adverse inference be drawn against CBI for intentionally not filing on record this FSL Expert opinion.

331. This court has found no such evidence of corrections in Appraisal Report on the laptop by A1 Sh. Ashutosh Verma and therefore this point of determination is decided holding that prosecution could not prove that A1 Sh. Ashutosh Verma made corrections in the Appraisal Report on his laptop as asked for by A4 Sh. Bipin Shah.

332. The ninth point for determination is whether A1 Sh. Ashutosh Verma had incorporated any chart as it is in the Appraisal Report as given by A4 Sh. Bipin Shah?

333. This allegation is appearing in the chargesheet in para 16.35 where it is alleged that:

"There is also discussion that one chart was submitted by Sh. Bipin Shah (A4) to Sh. Ashutosh Verma (A1) and the same was incorporated in the Appraisal Report without any changes."

CBI vs. Sh. Ashutosh Verma & Ors. Page 128 of 160

334. The basis for this allegation is in the recording between A1 Sh.

Ashutosh Verma and A4 Sh. Bipin Shah at Hotel Intercontinental, Nehru Place, New Delhi on 04.03.2008. Unfortunately, the CD has been found to be inadmissible for the reasons recorded in earlier part of the judgment. Therefore, this point of determination is decided in favour of the accused holding that CBI has not proved that A1 Sh. Ashutosh Verma had incorporated any chart as it is in the Appraisal Report as given by A4 Sh. Bipin Shah.

335. The tenth point for determination is whether Goa property is purchased benami by A1 Sh. Ashutosh Verma from bribe received from A2 Sh. Suresh Nanda?

336. The Sale Deed of the Goa property is executed by M/s Elliot Resorts through its Director Sh. Pradeep Sahni (PW29) in favour of M/s Nitya Resorts through its Director Sh. Amit Saxena (PW

26).

337. Whereas, the case of CBI is that this property is benami property of A1 Sh. Ashutosh Verma, the thrust of arguments of A1 Sh. Ashutosh Verma is that he has nothing to do with this property and this property belongs to PW22 Sh. Nikhil Nanda or PW26 Sh. Amit Saxena.

338. It is already recorded in this judgment that there is no direct evidence that A1 Sh. Ashutosh Verma received bribe from A2 Sh. Suresh Nanda for diluting the Appraisal Report. It is only an inference that Sh. Ashutosh Verma would have got the bribe from CBI vs. Sh. Ashutosh Verma & Ors. Page 129 of 160 A2 Sh. Suresh Nanda for dilution of Appraisal Report. At the time of framing of charge, it was noted by this court that allegations related to Goa property can be looked into as further evidence unearthed in order to prove that A1 Sh. Ashutosh Verma, during this period, had obtained huge amount of money which could be by way of illegal gratification.

339. A large number of prosecution witnesses have been examined regarding Goa property. Many of those witnesses had more than one statement u/s 161 of Cr.P.C. recorded during investigation. The earlier statements u/s 161 of Cr.P.C. which were not matching with the prosecution case were not relied on and therefore were not part of the chargesheet and not supplied to the accused. The accused obtained those statements by the orders of the Hon'ble High Court in proceedings u/s 207 of Cr.P.C. There is contradiction in the statement of the prosecution witnesses. Earlier their stand was that the Goa property was of Sh. Amit Saxena but later on their stand changed and alleged that the property is of Sh. Ashutosh Verma.

340. There is no dispute that in the Sale Deed of Goa property, the seller is M/s Elliot Prima Resorts, through its Director Sh. Pradeep Sahni and the purchaser is M/s Nitya Resorts, through its Director Sh. Amit Sahni. The Sale Deed of the property shows its sale consideration as Rs.1.91 Crore. Otherwise, its sale consideration is stated to be Rs.4.4 Crores, as rest amount was purportedly given by way of cash to the seller by the buyer.

CBI vs. Sh. Ashutosh Verma & Ors. Page 130 of 160

341. PW22 Sh. Nikhil Nanda is a businessman/private person and PW 26 Sh. Amit Saxena is also a businessman/private person. The submission of A1 Sh. Ashutosh Verma is that he has nothing to do with the Goa property which is either the property of Sh. Amit Saxena or Sh. Nikhil Nanda.

342. The first question that comes to the mind is why will a businessman or a private person disown his property worth several crores? There is no predicate offence alleged against them and there can be no allegation that they purchased the Goa property from proceeds of crime. They are not answerable to their employer for undisclosed immovable property in their name. They cannot be prosecuted for having assets disproportionate to their known source of income. It is unbelievable that on the pressure of CBI, a businessman/private person will forego his own property worth crores and start attributing the same to a public servant. There is no allegation of A1 Sh. Ashutosh Verma that the CBI had some grudge against him or axe to grind and for that reason they compelled a businessman/private person to forgo his property worth Rs.4.40 Crores in the year 2008 and alleged that this property is owned by a public servant i.e. A1 Sh. Ashotush Verma. Whereas, A2 Sh. Suresh Nanda has submitted that since he could not be prosecuted in Barrack Missile Case, he was made an accused in this case but A1 Sh. Ashutosh Verma has not made any such submission.

CBI vs. Sh. Ashutosh Verma & Ors. Page 131 of 160

343. In this background the court shall discuss the evidence on record regarding ownership of Goa property.

344. The prosecution is relying on PW17 Sh. Ajay Kumar Gupta, Chartered Accountant by profession to show that this witness on the request of Sh. Nikhil Nanda had arranged investment of Rs.2 Crore in M/s Nitya Resorts so that payments by way of bank drafts could be made to the seller of the property. This investment was secured with the help of Sh. Ravinder Kumar Aggarwal. He has deposed that cash was sent to Sh. Ravinder Kumar Aggarwal/his representative by Sh. Nikhil Nanda through Chabbilal or Rajpal and on receiving the cash, Sh. Ravinder Kumar Aggarwal/his representative had handed over the cheques for that amount. Before recording the statement of this witness u/s 161 of Cr.P.C. on 16.03.2012, his statement was also recorded u/s 161 Cr.P.C. on 27.10.2010, Ex. PW17/D1. In this statement, the witness had not deposed anything about request of Sh. Nikhil Nanda for investment of Rs.2 Crore in M/s Nitya Resorts.

345. PW19 Sh. Jawahar Gautam of M/s Kashyap Motors belonging to Sh. Rajender Kashyap, had delivered a bag of money to one Sh. Sahni at Green Park and after delivering the bag, on the request of this witness, Sh. Sahni had confirmed the receipt of money to Sh. Rajender Kashyap.

346. PW22 Sh. Nikhil Nanda is an old friend of Sh. Ashutosh Verma since 1990, when both of them were preparing for Civil Services. He deposed that Sh. Ashutosh Verma had delivered some packets CBI vs. Sh. Ashutosh Verma & Ors. Page 132 of 160 of money at his office which were collected by Mr. Rajender Kashyap or somebody from his office. He had introduced Sh. Ashutosh Verma to Sh. Amit Saxena for helping him in registration of property deal at Goa and on the request of Sh. Ashutosh Verma, he had introduced Sh. Ajay Gupta to Sh. Ashutosh Verma who arranged investment of Rs.2 Crore in M/s Nitya Resorts. On the request of Sh. Ashutosh Verma, Sh. Nikhil Nanda had arranged services of a surveyor through his friend Professor Satish for the survey of property at Goa and had paid a sum of Rs.25,000/ as the fee of the surveyor. It came on record during crossexamination that this witness had also given statements u/s 161 of Cr.P.C. on three other earlier occasions i.e. on 07.07.2008, Ex. PW22/D1, 20.09.2010, Ex. PW22/D2 and on 10.11.2010, Ex. PW22/D3. In these statements, there is no inculpatory statement against Sh. Ashutosh Verma.

347. PW24 Sh. Deepak Chawla was one of the Directors of M/s Nitya Resorts along with Sh. Jawahar Gautam during the time when the transaction for execution of Sale Deed was underway. Statement of this witness was recorded u/s 164 of Cr.P.C., Ex. PW24/1 on 09.04.2012, where he stated that he was told by Sh. Ashutosh Verma that M/s Nitya Resorts Pvt. Ltd. is a company of Sh. Amit Saxena where investment was made by Sh. Verma. He had deposed that on the directions of Sh. Ashutosh Verma, he had visited Calcutta and contacted Sh. Vineet Khaitan who had arranged investment of Rs.2 Crores in M/s Nitya Resorts through CBI vs. Sh. Ashutosh Verma & Ors. Page 133 of 160 five Calcutta based companies and persuaded Sh. Khaitan that it should be told to CBI that the companies are genuine investors who have invested in M/s Nitya Resorts and are not entry operators. He had also stated that Sh. Ashutosh Verma had tried to transfer shares of M/s Nitya Resorts in the name of company M/s Whitening Expressions where this witness (PW24) was Director but the transfer could not take place as the company was defunct company. He has also deposed that Sh. Ashutosh Verma tried to purchase the shares of five companies through Kashyap Vehicle Works Pvt. Ltd. (KVWPL) but due to some dispute between him and Sh. Rajender Kashyap, the same could not be purchased, though 10% payment has been made to five companies from account of KVWPL. However, in the court he stated that this statement was recorded under pressure of CBI therefore, no reliance is being placed on the said statement.

348. PW26 Sh. Amit Saxena is also an old friend of Sh. Nikhil Nanda.

He deposed that Sh. Nikhil Nanda had informed him about some land in Goa and he had shown his interest to develop the same. He deposed that he was made to talk to one Sh. Ashutosh Verma by Sh. Nikhil Nanda in this regard. On the asking of Sh. Ashutosh Verma, he told that he is Director of M/s Nitya Resorts and in December 2008, a sum of Rs.2 Crores was transferred to his company M/s Nitya Resorts by Sh. Ashutosh Verma for payment to owner of the property, Sh. Pradeep Sahni. He deposed that after the execution of Sale Deed some differences had arisen CBI vs. Sh. Ashutosh Verma & Ors. Page 134 of 160 between him and Sh. Ashutosh Verma and he and his wife resigned as Directors from the company and Sh. Deepak Chawla and Sh. Jawahar Gautam became the new Directors. He deposed that a meeting had taken place between him and Sh. Ashutosh Verma in the office of Sh. Nikhil Nanda. He deposed that for that meeting and for negotiations, he had taken photocopies of the pay orders which he had got made for sale consideration and expense sheet which was exhibited as Ex. PW26/1. Like others, statement of this witness was also recorded u/s 161 of Cr.P.C. more than once. It was recorded on 28.09.2010, Ex. PW26/D1 and 26.11.2010, Ex. PW26/D2. In these statements, he had shown his ignorance about Sh. Ashutosh Verma and had stated that the primary investor in M/s Nitya Resorts was Sh. Nikhil Nanda. Later on, he shifted his stand and stated that Sh. Deepak Chawla had introduced the investors in M/s Nitya Resorts.

349. PW37 Sh. Rajender Kashyap, CMD of M/s. Kashyap Motors has deposed that he had met the seller of property Sh. Pradeep Sahni along with Sh. Ashutosh Verma and the sale consideration was 4- 4.5 Crores which was to be paid half in cash and half in cheque. He deposed that his General Manager (Finance) Sh. Jawahar Gautam had received the money from Sh. Ashutosh Verma and paid to Sh. Pradeep Sahni. Application for fund transfer under RTGS for Rs.10,00,000/ dated 04.03.2010 pertaining to his company under the signatures of Smt. Pallavi Verma W/o Sh.

CBI vs. Sh. Ashutosh Verma & Ors. Page 135 of 160

Ashutosh Verma and similar form for Rs.5,00,000/ were proved as Ex. PW37/3 and Ex. PW37/4.

350. PW43 Ms. Renu Mishra, PW47 Sh. Siddharth Parulkar and PW 55 Sh. Satish Gupta have deposed about survey of the property at Goa for which payment of Rs.25,000/ was given by Sh. Nikhil Nanda.

351. On behalf of A1 Sh. Ashutosh Verma, lengthy written arguments have been submitted heavily relying on the statements of above noted prosecution witnesses which were recorded u/s 161 of Cr.P.C. and which are not relied on statements to submit that the Goa property either belongs to Sh. Amit Saxena (PW26) or Sh. Nikhil Nanda (PW22). It is recorded earlier that in the previous statements, these prosecution witnesses have made no inclupatory evidence against Sh. Ashutosh Verma and one of them has even gone on to deny any familiarity with Sh. Ashutosh Verma.

352. What is the reason for this somersault?

353. Is it pressure from CBI, as deposed by PW24 Sh. Deepak Chawla?

354. The answer is given by A1 Sh. Ashutosh Verma himself in his written submissions at page 42 where he has stated as under: "d. On 11.11.2011, there was a raid at the office of Nikhil Nanda (PW22) at B1/E23, Mohan Co operative Society as per D44. The raid is significant CBI vs. Sh. Ashutosh Verma & Ors. Page 136 of 160 as all the witnesses mentioned at points (i) to (vi) above changed their story after the raid. The statements recorded prior to 11.11.11 were suppressed from the Court and the evidence was constructed and manufactured to frame the Accused No. 1."

355. Ex. PW23/1 (D44) is the search list pursuant to search conducted at B1/E23, JHS Svendgaard Lab Limited, Mohan Co operative Industrial Estate, New Delhi of Sh. Nikhil Nanda on 11.11.2011. Pursuant to that search, one hand written note partly in the handwriting of PW26 Sh. Amit Saxena and Ex. PW22/1 partly in the handwriting of PW22 Sh. Nikhil Nanda was seized. Photocopies of three banker's cheques in favour of M/s Elliot Prima Resorts Pvt. Ltd. were also seized. As per Ex. PW22/1, Rs. 10 Lakhs being 5% of Rs.2 Crores as entry charges were given to AG which is now clear will refer to Sh. Ajay Gupta, Nitya Commission is noted as 3%, Rs.13,74,260/ which would correspond to Rs.4,58,01,333/ suggesting that this was the cost of Goa property and Rs.2 Lakhs as company formation Nitya.

356. As per Ex. PW26/1 which is in the handwriting of PW26 Sh. Amit Saxena, it is written stamp duty Rs.5,86,000/, Rs.3,83,460/ and SubRegistrar Rs.30,000/ and Lawyers Fee Rs.27,000/ totaling Rs.10,26,460/ + Pradeep Sahni Rs.11,61,500/ = total INR 21,87,960/ + demand drafts.

357. Earlier, PW26 Sh. Amit Saxena had deposed that Sh. Nikhil Nanda was the owner of M/s Nitya Resorts Pvt. Ltd. to an extent of CBI vs. Sh. Ashutosh Verma & Ors. Page 137 of 160 95% shareholding and Sh. Nikhil Nanda was evasive regarding Goa property in his previous statements u/s 161 Cr.P.C. However, he could not explain how Ex. PW22/1 and Ex. PW26/1 and photocopies of demand drafts given to M/s Elliot Resorts for purchase of Goa property were found at his premises vide search list Ex. PW23/1.

358. Thereafter, when he was cornered, he started telling the truth regarding cash transaction and arranging entry of Rs.2 Crores in favour of M/s Nitya Resorts by Sh. Ashutosh Verma with the help of Sh. Ajay Kumar Gupta, PW17.

359. The evidence of PW16 Sh. Arun Gupta is also important in this regard. This witness was Company Secretary in the firm known as Corporate Professionals as an independent associate. He deposed that he had met Sh. Ashutosh Verma at the office of Corporate Professionals for improving relations between Geiper Consulting Pvt. Ltd. and Kashyap Vehicles Pvt. Ltd. He deposed that Sh. Ashutosh Verma had introduced one person namely Sh. Deepak Chawla and discussed about two companies namely M/s Nitya Resorts and M/s Whitening Expressions or Laboratories Pvt. Ltd. He deposed that he had sent by email, his report for change of Directors to Sh. Ashutosh Verma after obtaining structure of M/s Nitya Resorts and M/s Whitening Expressions. He also deposed that Sh. Jawahar Gautam was interacting with him on behalf of M/s Kashyap Vehicles and he had come in contact with Sh. Jawahar Gautam through Sh. Ashutosh Verma. The seizure memo CBI vs. Sh. Ashutosh Verma & Ors. Page 138 of 160 vide which he had handed over the documents to CBI is Ex. PW 16/1 (D46). Certificate in support of emails and printouts thereof was exhibited as Ex. PW16/2 (D46). The entire file containing printouts of emails exchanged was exhibited as Ex. PW16/3 (D

47) and Ex. PW16/4 (D48). He submitted that as per Ex. PW 16/3, Page No. 142 Sh. Chander Sahni had sent email to this witness giving a list of tasks which were to be done by the team of this witness. These included obtaining search report of Whitening Expressions Laboratories Pvt. Ltd. He had also stated that 1,75,000 shares of M/s Nitya Resort were to be purchased by M/s Whitening Expressions. In this email, the reference has been made to one A.V. which stands for Ashutosh Verma and it is stated that after the transfer of 1,75,000 shares to Whitening Expressions, he would be having 83.33% shares of M/s Nitya Resorts. He had also stated that thereafter shareholding of Sh. Ashutosh Verma was to be further increased to more than 90%. The witness also deposed during his crossexamination that till the time he conducted the search, he did not find any shareholding or directorship of Sh. Ashutosh Verma either in Whitening Expressions or in Nitya Resorts. May be at that stage, Sh. Ashutosh Verma was not having shareholding or directorship in M/s Nitya Resorts but the contents of email noted above leaves no doubt that Sh. Ashutosh Verma was planning to takeover M/s Nitya Resorts to the extent of 83.33% and further shareholding of Sh. Ashutosh Verma had to be increased to more than 90%. M/s Nitya Resort is the purchaser of the Goa property. The evidence of CBI vs. Sh. Ashutosh Verma & Ors. Page 139 of 160 prosecution witnesses noted above have shown that it is benami property of Sh. Ashutosh Verma. The evidence of PW16 has further clarified the backdoor action that was being taken by Sh. Ashutosh Verma to take over M/s Nitya Resorts by having 90% of its shares.

360. On behalf of Sh. Ashutosh Verma, lengthy submissions have been made to submit that allegation of purchase of property at Survey No. 119/1, Morjim, Goa is out of "alleged illegal proceeds" is not made out.

361. The property at Goa was purchased contemporaneously with the filing of Appraisal Report by A1 Sh. Ashutosh Verma.

362. Para 16.32 of the chargesheet extracts from D60, Mark PW 59/X57 conversation between A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah on 04.03.2008 at Hotel Intercontinental, Nehru Place, New Delhi.

363. This recording is by way of bugging.

364. The court has already held that the said recording is not admissible as the expert witness who had examined the same for ruling out the tampering has stated during his crossexamination that since the original source of recording of data prior to its transfer on CD was not examined by him and therefore he cannot say whether it was subjected to editing or not. Otherwise, it is clear from the conversation that A1 Sh. Ashutosh Verma had obtained huge amount of gratification that is why he was telling Sh. Bipin CBI vs. Sh. Ashutosh Verma & Ors. Page 140 of 160 Shah "I tell you something जज अभभ आपनन जज whatever we did इसमम जज बनन ललयन इससन जयनदन कभभ इसकन 10% भभ शनयद नहभह आएगन ठभक".

365. Since the recording is not admissible, the submission of accused is accepted that there is no evidence that the property at Morjim Goa was purchased out of alleged illegal proceeds.

366. In this judgment, it is already recorded that there is no evidence that A1 Sh. Ashutosh Verma received illegal gratification from A2 Sh. Suresh Nanda.

367. The thrust of written arguments is on those statements of witnesses which were recorded u/s 161 of Cr.P.C. where they had not made inculpatory statement against Sh. Ashutosh Verma. This court is of the opinion that earlier the prosecution witnesses were trying to shield A1 Sh. Ashutosh Verma but when search was conducted at the premises of Sh. Nikhil Nanda and incriminating documents were found in his own handwriting along with photocopies of bank drafts given for purchase of property at Goa, only then he and the other prosecution witnesses started telling the truth.

368. The evidence of PW17 Sh. Arun Gupta has also supported the version of prosecution witnesses that Sh. Ashutosh Verma was de facto owner of property at Goa and that is why he was planning to acquire the shares of M/s Nitya Resorts to an extent of 90%. The witness has been categorical that A.V. refers to Ashutosh Verma.

CBI vs. Sh. Ashutosh Verma & Ors. Page 141 of 160

369. In Call No. 32 dated 08.03.2008 between Sh. Ashutosh Verma and Sh. Nikhil Nanda also there is a conversation, Ex. PW22/13 where A1 Sh. Ashutosh Verma is pressing PW22 Sh. Nikhil Nanda to spare 46 hours and visit Goa and see the property which is located at beach as it was a big decision.

370. Therefore, this point of determination is decided holding that the Goa property at Morjim is the property of Sh. Ashutosh Verma but it is not proved that he purchased the same from illegal gratification given by Sh. Suresh Nanda through A4 Sh. Bipin Shah.

371. The eleventh point for determination is whether charge u/s 120B of IPC is proved against all the accused?

372. This court is reproducing the entire written submissions on behalf of A1 Sh. Ashutosh Verma, which are as under: "i. The CBI has alleged that the Accused No. 1 conspired with the accused persons by allegedly giving "favour" to Accused No. 2 in diluting/altering or making changes in the appraisal report at the behest of the accused persons. In alleging conspiracy, the CBI has purely relied upon purported intercepted calls and recorded conversation, which are fabricated and completely inadmissible in evidence. Further, the CBI has not relied upon the appraisal report or Accused no. 1's laptop FSL report in alleging purported favour to have been given. In fact, the investigating officer in his evidence has stated that the limit of the investigation was to see if the appraisal report was submitted and not whether any actual purported CBI vs. Sh. Ashutosh Verma & Ors. Page 142 of 160 dilution/changes etc. were made in the manner alleged in the chargesheet.

ii. The undisputed evidence and documents relied upon by CBI when read with the provisions of the Income Tax Act and the CBDT search and seizure manual further reveals that the Accused No. 1 was in no position to give purported favour in the manner alleged by CBI as his supervising officer S. Rehman (PW58), Addl. DIT, Inv. Was directly overseeing and reviewing the search and drafting of the appraisal report and the appraisal report, itself, had no bearing on the income tax assessment of the Accused No.2.

iii. Charge against the Accused No. 1 is for commission of offence under Section 7 and not Section 13(1)(d) of the P.C. Act and that "abuse of official position" is not an ingredient of commission of an offence under Section 7 of the P.C. Act. However, considering CBI has alleged the Accused have committed conspiracy by relying upon allegations of purported "favour," the evidence demolishing the story of "favour" have been dealt with in details in the arguments.

iv. Therefore, without prejudice to the foregoing, there is no material available to raise a mere suspicion, much less grave suspicion or proof beyond reasonable doubt, that Accused No. 1 gave any purported favour or entered into a criminal conspiracy with the other accused persons to give favour. CBI has failed to p rove that the circumstances led to an irresistible conclusion of guilt and has failed to prove each and every alleged circumstance in the chain of circumstances. CBI has failed to prove even one circumstance beyond reasonable doubt and therefore, CBI vs. Sh. Ashutosh Verma & Ors. Page 143 of 160 the offence of conspiracy is not made out. Reliance is placed upon the following caselaw.

v. The Hon'ble Supreme Court in 'Subramanian Swamyu v. A Raja' (2012) 9 SCC 257 discharged the accused of commission of offences under Section 120B of IPC and Section 13(1)(d) of PC Act finding that even if it is assumed thare were official discussion, no criminal conspiracy can be made out [@Paras 2,3, 63 and 64].

vi. The Hon'ble Supreme Court in 'K.R. Purshothaman v. State of Kerala' reported in (2005) 12 SCC 631 acquitted the accused of the allegations of misappropriation of gold in conspiracy with other accused as he was charged merely because he was the Asst. Commissioner of the board who had merely accompanied the other accused to Coimbatore. The Hon'ble Court held that meeting of minds to commit an illegal act by illegal means is the first and primary condition and that each and every incriminating circumstance must be proved as a complete chain with the only irresistible conclusion of guilt for the offence of conspiracy to be proved. The Hon'ble Court further held that each circumstance must be proved beyond reasonable doubt and the evidence must be admissible and reliable [@ Paras 1417 & 21].

vii. The Hon'ble Supreme Court in 'State of MP v. Sheetla Sahai' reported in (2009) 8 SCC 617 discharged that accused of the commission of offences under Section 13(1)(d) of the PC Act and Section 120B of I.P.C. on the finding that if the accused merely acted upon the recommendations of authorities and obtained independent opinion on the recommendations, such fact could not constitute criminal misconduct or lead to the conclusion of CBI vs. Sh. Ashutosh Verma & Ors. Page 144 of 160 hatching of criminal conspiracy [@ Paras 5254 and 55].

viii. The Hon'ble Supreme Court in 'State of Kerala v. P. Sugathan' reported in AIR 2000 SC 3323 and 'Eshar Singh v. State of Andhra Pradesh' reported in (2004) 11 SCC 585 has held that a few bits here and a few fits there on which prosecution relied cannot be adequate for connecting the accused with the commission of the crime of conspiracy. Relevant portions of Eshar Singh [Supra] is para 49.

ix. Documents and electronic evidence relied upon by CBI in alleging purchase of property in Morjim, Goa are inadmissible under Section 10 of the Evidence Act as the CBI has miserably failed to prove any alleged conspiracy between the accused persons under Section 120B of the I.P.C. Reliance is placed upon the Hon'ble Delhi High Court's landmark decision in 'L.K. Advani v. CBI' reported in (1997) 66 DLT 618, [Para 81, 89, 90 & 91)."

373. The written submission on behalf of A4 Sh. Bipin Shah on the point of conspiracy is that the elements of conspiracy are completely lacking in the present case and the chain of circumstances to establish the involvement of A4 Sh. Bipin Shah is lacking in material particulars and in the absence of the same, Sh. Bipin Shah deserves to be acquitted of the present case filed against him. Reliance is placed on Vinay Jain vs. State & Ors., Manu/DE/0435/2015.

374. In the opinion of this court, there is evidence suggesting conspiracy amongst the accused.

CBI vs. Sh. Ashutosh Verma & Ors. Page 145 of 160

375. On 28.02.2007, search and seizure action was conducted in the premises of Sh. Suresh Nanda. A1 Sh. Ashutosh Verma was leading the Income Tax team being Deputy Director, Investigation. More than 20,000 documents were seized during the search. Period provided for completing the search is 60 days. Period provided for submitting the appraisal report is another 60 days. In case appraisal report is not filed within 60 days, extensions have to be sought for. The case was a complex case and appraisal report could not have been completed within 60 days. Time for filing the appraisal report was being extended from time to time. Lastly, it was extended till 31.01.2008. Thereafter, there is no extension. The role of officer submitting appraisal report is not a limited role. It cannot be said that any lapse in the appraisal report is to be corrected by the assessing officer who is having the final say in the matter. The scheme of things is such that the appraisal report has a strong bearing on the decision of the assessing officer because the entire analysis of the document, evidence etc. is to be done by Deputy Director (Investigation) and he makes a recommendation on the basis of that analysis. If the officer preparing the appraisal report withholds some material, keeps it out of the appraisal report or dilutes the appraisal report in a manner which may help the assessee, it would be an obstacle in the decision of the assessing officer because the appraisal report is to give true and complete overview of the evidence collected and something like this done and the assessing officer to form his CBI vs. Sh. Ashutosh Verma & Ors. Page 146 of 160 own independent opinion will have to go through the entire evidence again which would defeat the purpose of preparation of appraisal report and its submission to the assessing officer. It is without any substance to submit that the appraisal report is vetted by Additional Director (Investigation) and thereafter by the Director. The experience of this case has shown that after the appraisal report was filed, it did not undergo close scrutiny either by PW58 Sh. S. Rehman, Additional Director (Investigation) or PW12 Sh. Shailender Handa, Director (Investigation). Ex.PW12/2 is the noting by A1 Sh. Ashutosh Verma for submitting the Draft Appraisal Report. This is stated to be 22.02.2008. This date is mentioned twice on the notesheet and there is cutting on both the dates under the signatures of A1 Sh. Ashutosh Verma. A closer scrutiny of the date shows that there is overwriting and perhaps the date is 28.02.2008 which has been changed to 22.02.2008 by overwriting. In statement under Section 313 of Cr.P.C., in response to question no. 71, A1 Sh. Ashutosh Verma had responded to the cuttings that he does not know. The cuttings are just below the signatures of A1 Sh. Ashutosh Verma and if he himself does not know who has done this cutting, then he only has to help himself. It is not his response that the date was written by mistake wrongly and he corrected the same. Considering the response of A1 Sh. Ashutosh Verma, this court is of the view that this overwriting is by A1 Sh. Ashutosh Verma to show that before his meetings with A4 Sh. Bipin Shah, he had already submitted the Appraisal Report. Be that as it may, it shows that PW59 Sh. S. CBI vs. Sh. Ashutosh Verma & Ors. Page 147 of 160 Rehman prepared Executive Summery on 29.02.2008 and submitted the same to the Director (Investigation). It shows that he could not have gone through twenty thousand pages seized in the search and he would have prepared the Executive Summery merely on the basis of Appraisal Report. So he had no chance to find out whether there is any dilution or suppression in the report by A1 Sh. Ashutosh Verma. PW12 Sh. Shailender Handa, Director (Investigation) only highlighted in the forwarding letter major issues which he could understood from the Executive Summery and the background that he had acquired earlier while attending a meeting on the subject with senior officers of Central Circle, Delhi. PW12 has stated in Ex.PW12/8 that his exposure to cases of this group was very limited. It was a big case where investigations were going on for about a year and Appraisal Report comprising of hundreds of pages. The seized material was voluminous. There was likelihood of time barring matters being involved and it was necessary to forward the Appraisal Report to CIT, Central Circle at the earliest. According to PW12, in a situation like this, when hard pressed for forwarding the report to Central Circle, it was not possible for him to go into any details of the Appraisal Report. Therefore, there were no check and balances on the Appraisal Report and A1 Sh. Ashutosh Verma was all in all and no senior officer could have verified whether there was any suppression of important material in the Appraisal Report. Subsequently, some relief has been given to Sh. Suresh Nanda treating him as an NRI by ITAT which order has been CBI vs. Sh. Ashutosh Verma & Ors. Page 148 of 160 upheld by Hon'ble Delhi High Court as well as Hon'ble Supreme Court. According to DW1, the demand raised by Assessing Officer was Rs.350 Crores. The ITAT orders are not pertaining to the entire Rs.350 Crores demand and there are several aspects over which ITAT had remanded the matter back. The fate of remand is not on records. Sh. Suresh Nanda had no inkling at the time of his arrest that he can get the relief being NRI. That is why, his application for bail is conspicuously silent with regard to his NRI status. He did not take any defence at that time that he has nothing to gain by seeking favours of A1 Sh. Ashutosh Verma by dilution of Appraisal Report being NRI. Therefore, at that time it was of vital importance for Sh. Suresh Nanda to get as many favours as possible from A1 Sh. Ashutosh Verma in dilution of Appraisal Report so that the Assessing Officer assesses less income resulting in less tax. A4 Sh. Bipin Shah is the Chartered Accountant of Sh. Suresh Nanda and associates. He has been clandestinely having meetings with A1 Sh. Ashutosh Verma. Ex.PW18/4 and Ex.PW14/5, calls no.40 and 41 respectively, both dated 22.02.2008 show meeting of A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah at Ashoka Coffee Shop. Call no.46 dated 25.02.2008 Ex.PW1/2 between PW1 Sh. Bhuvnesh Kulshrestha and A4 Sh. Bipin Shah shows that A4 Sh. Bipin Shah had requested for some place for meeting for two hours. Call no.53 Ex.PW1/4 shows that PW1 Sh. Bhuvnesh Kulshrestha had arranged the meeting point at 39 and 40 Golf Link and he was given the mobile number of Care Taker Sh. Suresh by Sh.

CBI vs. Sh. Ashutosh Verma & Ors. Page 149 of 160

Bhuvnesh Kulshrestha. Call no.58, dated 23.02.2008 Ex.PW3/2 shows that A4 Sh. Bipin Shah had told him that he will visit in the evening for one or two hours. Call no.63 dated 23.02.2008 Ex PW18/6 between A1 Ashutosh Verma and A4 Sh. Bipin Shah shows that A1 Sh. Ashutosh Verma was apprehensive of some people outside the premises no. 40 where the meeting had to take place and is reluctant and is asking who are they ? It shows A1 Sh. Ashutosh Verma did not want anybody to see him meeting A4 Sh. Bipin Shah. Only when he was assured that there is no one, he decided to come in. In call No.79 dated 03.03.2008 Ex.PW 18/7, A1 Sh. Ashutosh Verma is assuring A4 Sh. Bipin Shah that except for that, everything else has been incorporated. A4 Sh. Bipin Shah is heard responding that he has also very very categorically and candidly conveyed. It shows that A4 Sh. Bipin Shah was not meeting A1 Sh. Ashutosh Verma in his own case but for somebody else to whom he had conveyed that except for that, everything else had been incorporated. It shows that A1 Sh. Ashutosh Verma is working in tandem with A4 Sh. Bipin Shah for preparing the Appraisal Report. Ex. PW18/8 which is Call No.80 dated 03.03.2008 between A4 Sh. Bipin Shah and A1 Sh. Ashutosh Verma, A4 Sh. Bipin Shah is persuading A1 Sh. Ashutosh Verma to have a meeting with third person for one or two hours so that there is peace of mind. A4 Sh. Bipin Shah is also seeking reassurance from A1 Sh. Ashutosh Verma that rest of the things are in place and they should not have any anxiety to that extent and A1 Ashutosh Verma is telling that A4 Bipin Shah CBI vs. Sh. Ashutosh Verma & Ors. Page 150 of 160 has to assure them. The Appraisal Report pertains to Sh. Suresh Nanda and Associates. Therefore, 'them' here would refer to Sh. Suresh Nanda and Associates. Ex. PW18/9 call no.82 dated 03.03.2008 between A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah shows that top man, referring to PW12 Sh. Shailender Handa, Director (Investigation) was intelligent enough to gauge that popular figure of four hundred, referring to Rs.400 Crores, which has been everywhere is nowhere. It shows dilution in the Appraisal Report. As per call no.86 dated 04.03.2008, Ex. PW 18/10, A1 Sh. Ashutosh Verma and A4 Sh. Bipin Shah are deciding to meet at Hotel Park Royal, Nehru Place, New Delhi in the evening. As per call no.98 dated 04.03.2008, Ex. PW18/11 A 1 Sh. Ashutosh Verma was standing outside the room of A4 Sh. Bipin Shah at 21:43:05 pm. As per call no. 105 dated 05.03.2008 Ex. PW36/7, A1 Sh. Ashutosh Verma had made changes in the Appraisal Report as discussed with A4 Sh. Bipin Shah and then took a fresh (print) and gave it for copying and got it bound. It shows till then he was having the control over final appraisal report. In this meeting again A4 Sh. Bipin Shah is pressing A1 Sh. Ashutosh Verma to have a meeting with the third party. This conversation became the basis of the meeting for all the accused at Mumbai Hotel on 08.03.2008 where they were arrested. PW1 has deposed about arranging a room at Guest House at Golf Links on the request of A4 Sh. Bipin Shah on 23.02.2008. PW3 Sh. Suresh Yadav has also deposed about the visit of A4 Sh. Bipin Shah at the Golf Links Guest House on 23.02.2008. As per PW5 CBI vs. Sh. Ashutosh Verma & Ors. Page 151 of 160 Sh. Sultan Singh, the Driver of Sh. Ashutosh Verma, he had taken Sh. Ashutosh Verma on a secret duty on 04.03.2008. Though the other noting "from 10:00 p.m. to 12:50 a.m. Nehru Place Hotel"

cannot be taken into consideration as the same is written on the instructions of CBI but A1 Sh. Ashutosh Verma has not given any explanation of the secret duty and has only stated that the entry is fabricated. PW6 Sh. Gulzar Ahmad has proved that he had taken Sh. Bipin Shah on 23.02.2008 to 40, Golf Links at around 3:30 p.m. and had dropped him back at Hotel Claridges at around 11:30 p.m. The testimony of these witnesses is matching the recorded conversations. The recorded conversations are between the two accused and there cannot be a third witness unlike the case of Mahabir (Supra) which is a case of landlord and tenant, who could have deposed about their conversations except the electronic record. However, the evidence of aforesaid witnesses are confirming the visit of Sh. Bipin Shah to Golf Link and Nehru Place Hotel which, according to recorded conversations were with Sh. Ashutosh Verma. As per Ex. PW27/2, Car observation cum Seizure Memo dated 08.03.2008 of Vehicle No. MH01VA8163 which was used to bring Sh. Ashutosh Verma from the Bombay Airport to J.W. Marriot Hotel, a suitcase make Samsonite belonging to Sh. Ashutosh Verma was found and Sr. No. 12 of the same shows that:

"a file containing various documents pertaining to Claridges SEZ, Head Office12, Aurangzeb Road, New Delhi" was also seized.

CBI vs. Sh. Ashutosh Verma & Ors. Page 152 of 160

376. To ensure minimum exposure for A1 Sh. Ashutosh Verma during his visit to J.W. Marriot Hotel, Mumbai, PW45 had collected the key of the hotel room in advance and delivered to Sh. Ashutosh Verma at Mumbai Airport. PW46 Sh. Shakti Verma, on the instructions of A4 Sh. Bipin Shah had booked a room in J.W. Marriot Hotel. There is Call No. 133 dated 08.03.2008 between Sh. Bipin Shah and Sh. Shakti Verma, whereby Sh. Shakti Verma has assured Sh. Bipin Shah that everything was under control. Sh. Ashutosh Verma misguided his department about his outstation leave and kept his visit to Mumbai, a secret. As per Ex. PW12/9, Sh. Ashutosh Verma had requested PW12 Sh. Shailender Handa for leave for 07.03.2008 for going out of station to Lucknow. Instead of going to Lucknow, the accused went to Mumbai for holding meeting with the assessee Sh. Suresh Nanda whose appraisal report he had diluted in conspiracy with his Chartered Accountant Sh. Bipin Shah. A1 Sh. Ashutosh Verma has given no explanation for his presence in H.W. Marriot Hotel while holding a meeting with A4 Sh. Bipin Shah and A2 Sh. Suresh Nanda. Even though, the appraisal report was filed by the time the accused were arrested while holding the meeting in the J.W. Marriot Hotel, it is already recorded that the meeting was for satisfaction of Sh. Suresh Nanda and to explain the favour given to him by A1 Sh. Ashutosh Verma with the intervention of A4 Sh. Bipin Shah. Sh. Suresh Nanda has stated in his statement u/.s 313 on 01.05.2019 that he along with his son had agreed to meet Mr. Bipin Shah in CBI vs. Sh. Ashutosh Verma & Ors. Page 153 of 160 J.W. Marriot Hotel, Mumbai on 08.03.2008 as they were already in Mumbai in connection with a meeting with their bankers in Mumbai. He stated that they agreed to meet Mr. Bipin Shah as they were having a SEZ Project in Mumbai where Mr. Bipin Shah was providing local support in Mumbai. He has stated that they were not aware about the presence of Sh. Ashutosh Verma in the meeting. In case Sh. Suresh Nanda was not aware about the presence of Sh. Ashutosh Verma in the meeting, he should have walked out of the same on seeing presence of A1 Sh. Ashutosh Verma in the room instead of participating in the meeting leisurely when they were arrested by CBI sitting on sofa. It is also noted earlier that from the briefcase of A1 Sh. Ashutosh Verma, the file pertaining to Claridges, SEZ Head Office12, Aurangzed Road, New Delhi was seized during the Car Search Memo.

377. In the considered opinion of this court, the material noted above has proved that the A1 Sh. Ashutosh Verma, A2 Sh. Suresh Nanda and A4 Sh. Bipin Shah had entered into a criminal conspiracy punishable u/s 120B of IPC whereby A1 Sh. Ashutosh Verma had agreed to manipulate the Appraisal Report by withholding/destroying certain evidences collected by him during the investigation so as to minimize the tax liabilities of accused Sh. Suresh Nanda and to hide his other nefarious activities.

378. The submission of the accused that the intercepted calls and recorded conversations are fabricated and inadmissible is already rejected in earlier parts of this judgment above. The reason for not CBI vs. Sh. Ashutosh Verma & Ors. Page 154 of 160 relying on appraisal report by CBI is already discussed above. Nonreliance on Laptop FSL Report of A1 Sh. Ashutosh Verma only shows that the appraisal report was not changed on the said laptop on the request of Sh. Bipin Shah but that does not mean that the other evidence on record does not prove conspiracy. The submission of the accused that he was not in a position to give any favour to the assessee is also rejected above. The facts of the case of K.R. Purushothaman (Supra) relied upon by the accused are not applicable to the case in hand. Present case is not of a few bits here and there. Therefore, the relied on judgment i.e. Eshar Singh (Supra) is also not applicable to the case in hand.

379. The twelfth point for determination is whether charge u/s 7 of P.C. Act is proved against A1 Sh. Ashutosh Verma?

380. It is settled law that there has to be demand and acceptance for proving the offence u/s 7 of the P.C. Act. It is already noted that the recorded conversation dated 04.03.2008 between Sh. Ashutosh Verma and Sh. Bipin Shah at Hotel Intercontinental, Nehru Place, New Delhi is not admissible in evidence. The same has neither been exhibited nor proved nor the tampering therein is ruled out in the absence of original recording device. Therefore, without delving deeper, this issue is decided in favour of the accused holding that prosecution has failed to prove the charge u/s 7 of P.C. Act against A1 Sh. Ashutosh Verma.

CBI vs. Sh. Ashutosh Verma & Ors. Page 155 of 160

381. The thirteenth point for determination is whether charge u/s 12 of P.C. Act is proved against A2 Sh. Suresh Nanda and A4 Sh. Bipin Shah?

382. The Accused No. 1 is not convicted for the offence u/s 7 of the P.C. Act. Again, as the conversation of 04.03.2008 is found to be inadmissible, the charge u/s 12 against A2 Sh. Suresh Nanda and A4 Sh. Bipin Shah is not proved.

383. The fourteenth point for determination is whether charge u/s 7 of P.C. Act read with Section 120B of IPC is proved against all the accused?

384. The formal charge framed against the accused on 22.09.2016 is that in consideration of A1 Sh. Ashutosh Verma diluting the appraisal report, A2 Sh. Suresh Nanda and A4 Sh. Bipin Shah paid illegal gratification to A1 Sh. Ashutosh Verma.

385. There is no evidence that A1 Sh. Ashutosh Verma had received any bribe. Therefore, the charge u/s 7 of P.C. Act read with Section 120B of IPC is not proved. Since, the charge u/s 7 of P.C. Act is not proved, the question of sanction u/s 19 of P.C. Act has become redundant and therefore point for determination whether sanction to prosecution A1 Sh. Ashutosh Verma u/s 7 of P.C. Act is valid is left undetermined being infructuous.

386. The last and fifteenth point for determination is whether sanction was required to prosecute A1 Sh. Ashutosh Verma u/s 197 Cr.P.C?

CBI vs. Sh. Ashutosh Verma & Ors. Page 156 of 160

387. At the time of framing of charge on 05.11.2015, this issue was dealt with by the court as under:

38. I have carefully considered the rival contentions and have considered the judgments cited by the learned counsels for the accused and perused the record very carefully.

39. Law in this regard has been discussed and laid down by Hon'ble Supreme Court starting from Ronald Wood Matham v. State of West Bengal (5 judges), 1954 (1) SCR 2016 upto Inspector of Police and Anr. v. Battenpatla Venkat Rathnam & Anr., judgment in Crl. Appeal No. 129 of 2013 (SC). In all these judgments, reliance had primarily been placed by the Hon'ble Supreme Court on Hori Ram v. The Crown (1939) FCR 159. The observation of Justice Varadachariar is a guiding light on the requirement of sanction for prosecution of a public servant under section 197 Cr.P.C. It was observed by Justice Varadachariar as under: The section cannot be confined to only such acts as are done by a public servant directly in pursuance of his public office, though in excess of the duty or under a mistaken belief as to the existence of such duty. Nor it is necessary to go to the length of saying that the act constituting the offence should be so inseparably connected with the official duty as to form part and parcel of the same transaction.

40. The interception that found favour with Varadachariar, J. in the same case is stated by him in these terms at page 187:

CBI vs. Sh. Ashutosh Verma & Ors. Page 157 of 160

"There must be something in the nature of the act complained of that attaches it to the official character of the person doing it". In affirming this view, the Judicial Committee of the Privy Council observed in Gill's case "A public servant can only be said to act or purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty.... The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office". Hori Ram's case is referred to with approval in the later case of Lieutenant Hector Thomas Huntley v. The King Emperor but the test laid down that it must be established that the act complained of was an official act appears to us unduly to narrow down the scope of the protection afforded by section 197 of the Criminal Procedure Code as defined and understood in the earlier case. The decision in Meads v. The King does not carry us any further; it adopts the reasoning in Gill's case.

..... The result of the foregoing discussion is this: There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of performance of his duty.

41. Thus the test for application for sanction 197 Cr.P.C. which this court has to keep in mind is, whether the accused can rightly claim that there was a reasonable connection between the acts complained of and his official duties and, whether such a claim is a reasonable claim and not a pretence?

CBI vs. Sh. Ashutosh Verma & Ors. Page 158 of 160

42. In the present case, accused Ashutosh Verma is stated to have conspired with other accused persons to given them benefit by diluting report which he was preparing in his official duties so as to give advantage to accused no. 2 and 3 by reducing their tax liabilities and hiding their shady defence deals. The accused can reasonably claim that he was preparing the appraisal report in discharge of his official function and at the most can claim that such a report may be erroneous, but it was in discharge of his official function. But faced with the charge that he was actively conniving with accused no. 2 to 4 to change this report and it was on the suggestions of accused no. 4 that he was dishonestly diluting this report, that he agreed to so prepare the report that it would give undue pecuniary advantage to other accused and such an advantage on the face of it would be against public interest; can he claim that in doing so, he was discharging official functions?

43. The answer has to be in negative. The act of having conspired with other accused for reducing the tax liabilities of the accused and thus, to provide a pecuniary advantage to them by abuse of his official position, by no stretch of imagination can be said to be an act done in discharge of his official duties or purported exercise of his official duties. Thus, in the light of the allegations against the accused no. 1, and here I am only referring to the allegation the merits of which will be discussed at a later stage, I find that the stand taken by the accused that what he did was done by him in discharge of his official functions is a mere pretence and the protection of section 197 Cr.P.C is not available to him."

388. The reasoning given by this court that there was no need for sanction u/s 197 Cr.P.C. for framing the charge under IPC offence CBI vs. Sh. Ashutosh Verma & Ors. Page 159 of 160 which was recorded at the time of framing the charge continues to be the valid and applicable reasoning after conclusion of trial. The court at that time had taken a prima facie view of the allegations but now it has been proved beyond doubt that A1 Sh. Ashutosh Verma diluted the appraisal report to favour A2 Sh. Suresh Nanda and Associates on the behest of A4 Sh. Bipin Shah. This is no part of a government servant's duty to meet secretly at odd hours those persons whose matter he is dealing officially. So much so, to keep his meeting at Mumbai secret, Sh. Ashutosh Verma sought permission to visit Lucknow from PW12 Sh. Shailender Handa and proceeded to Mumbai. There is definite evidence that he diluted the appraisal report and thereby committed the offence u/s 120B of IPC making him ineligible for the protective coverage of sanction u/s 197 Cr.P.C.

389. Conclusion: Accused No. 1 Sh. Ashutosh Verma, Accused No. 2 Sh. Suresh Nanda and Accused No. 4 Sh. Bipin Shah are convicted u/s 120 B of IPC.

Digitally signed by ARUN

                                                ARUN         BHARDWAJ
                                                BHARDWAJ     Date:
                                                             2021.04.01
                                                             16:54:30 +0530

Announced in the open court                      (ARUN BHARDWAJ)
on 01.04.2021                                    Special Judge (PC Act)
                                                 (CBI5), Rouse Avenue
                                                 District   Court, New
                                                 Delhi: 01.04.2021




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