Delhi District Court
(C.B.I. vs . Uday Shankar & Ors.) on 25 April, 2017
Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.)
Dated : 25.04.2017
IN THE COURT OF : MS. ANU GROVER BALIGA :
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
In the matter of :
CBI VS. Uday Shankar & Ors.
CC No. 02/2015
FIR NO. RC4(A)/2004/CBI/ACUV/New
Delhi dated 21.5.2004
Branch CBI/SPE/ACUV/New Delhi
U/s : 120B IPC r/w 7, 11, 12, 13(1)(a) r/w 13
(1) (e) r/w 13 (2) of Prevention of Corruption
Act,1988
CENTRAL BUREAU OF
INVESTIGATION (C.B.I)
...Through
[Ms. Shashi, Ld. Public Prosecutor for CBI]
v e r s u s
1.Uday Shankar S/o Late Sh. Sudershan Singh R/o Flat No. 4203, SectorD, Pocket 3 & 4 Vasant Kunj, New Delhi.
2. Sanjeev Kumar S/o Sh. Damodar Singh R/o Flat No. 1101, Tower17, Close South Nirwana Country, Gurgaon122018.
C.C. No: 02/2015 Page No. 1 of 91
Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017
3. S.K. Gupta S/o Sh. P.C. Gupta R/o D17, Rana Pratap Bagh, Delhi.
.....Accused persons
Date of Institution : 29.12.2006
Date on which the case was : 22.10.2011
received on transfer in this court
Date of reserving judgment : 3.4.2017
Date of pronouncement : 25.04.2017
JUDGMENT :
1. Briefly stated the allegations made against the aforementioned accused persons in the chargesheet are as follows :
a) Accused No. 1, Uday Shankar, an officer of M/s Hindustan Petroleum Corporation Limited, was posted on deputation as Joint Director (Investigation), Anti Adulteration Cell, Ministry of Petroleum, Govt. of India on 28.03.2001. In order to prevent adulteration, he was C.C. No: 02/2015 Page No. 2 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 authorized to conduct inspection at units/retail outlets engaged in the manufacture and distribution of petroleum products. On 14.08.2002, he led a team of Officers which inspected the premises of M/s Hazoor Sahib Chemicals Pvt. Ltd., Ghaziabad, a company of accused No. 3, S.K. Gupta. The said company was a Naptha licensee and used to deal with Naptha/solvent, which was being illegally diverted for the purpose of adulteration of petrol etc. An inspection note dated 23.08.2002, in file No. 76 (DD) 2002/ACC, recommending verification of some firms, to whom large quantity of sales were shown by the above company, was prepared by Shri S.K. Chandila, Sr. Administrative Officer and initialed by accused Uday Shankar and put up before Shri G. Prasanna Kumar, the then Director General, Anti Adulteration Cell who then directed the accused Uday Shankar to make the necessary verification.
b) It is alleged that accused Uday Shankar kept the aforesaid C.C. No: 02/2015 Page No. 3 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 file with him and no further action was taken. Meanwhile, CBI, Special Unit, New Delhi received order from Ministry of Home Affairs, to monitor the communications from telephone numbers viz. 9868128356 and 01126104502, pertaining to accused Uday Shankar number 9811326056, pertaining to accused Sanjeev Kumar and numbers 011 27410001, 01127410006 and 9810066480, pertaining to accused S.K. Gupta and disclose the same to CBI.
c) The aforementioned interceptions revealed that on 20.05.2004, accused Uday Shankar contacted accused S.K. Gupta, who was in Dubai and asked, "do teen ka jarurat parega, kisi ko bologe".
Accused S.K. Gupta responded, "bolo jab aap aadesh denge tab ho jayega". It was decided that the venue of delivery of money shall be communicated through SMS. Accused S.K. Gupta informed that he would be reaching Delhi on 21.05.2004. On 21.5.2004 Uday Shankar C.C. No: 02/2015 Page No. 4 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 again telephoned S.K. Gupta and raised the demand to Rs. 7 lacs.
d) The interceptions also revealed that accused Sanjeev Kumar @ Guddu was closely associated with accused Uday Shankar in his illegal activities of collecting gratification from various persons having official dealings with him and that on 21.05.2004, accused Uday Shankar rang up from phone No. 01126890348 to Mobile No. 9811326056 of accused Sanjeev Kumar asking him to arrange for collecting the bribe amount from S.K.Gupta. During the conversations on 21.05.2004, between all three accused persons, it was decided that Rs.7,00,000/ would be delivered by accused S.K. Gupta or his representative at around 12.00 noon at the HPCL Petrol Pump near Ashok Hotel, Niti Marg, New Delhi.
e) Accused Sanjeev Kumar then deputed one Naveen Jain to collect the bribe money to be delivered by accused S.K. Gupta for C.C. No: 02/2015 Page No. 5 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 accused Uday Shankar. Since the taped conversations (and later a secret source also) disclosed that all the above accused persons were involved in corrupt activities which necessitated action by the CBI, CBI, ACUV Branch registered a First Information Report on 21.05.2004 at 10.40 a.m. against accused Uday Shankar, accused Sanjeev Kumar and accused S.K. Gupta u/s 120B IPC r/w Sec. 7, 11, 12, 13 (1) (a) r/w Sec. 13(1)(e) r/w Sec. 13 (2) of the P.C. Act, 1988 wherein apart from allegations with respect to the specific demand made by accused Uday Shankar from accused S.K. Gupta, it was also alleged that accused Uday Shankar is habitual of taking illegal gratification and accused Sanjeev Kumar @ Guddu is closely associated with the corrupt activities of accused Uday Shankar and that accused Uday Shankar was in possession of disproportionate assets worth Rs.1,25,00,000/.
f) The FIR was entrusted to Shri Rohit Kapoor, DSP who then alongwith two independent witnesses and other CBI officers reached the C.C. No: 02/2015 Page No. 6 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 HPCL Petrol Pump near Ashok Hotel, Niti Marg, New Delhi on 21.5.2004 at around 12.10 p.m. After a while they saw accused Uday Shankar reaching there in Maruti Esteem Car No. DL 3 CT 1273 and soon thereafter, a Toyota Qualis No. HR 26 S 6219 driven by Naveen Jain (identified by the secret informer) and accompanied by Shri Naresh Saini (identified by the secret informer) also reached there. Shri Naveen Jain and accused Uday Shankar talked to each other for sometime whereafter Shri Naveen Jain gave his mobile phone to accused Uday Shankar who talked for some time to accused S.K. Gupta from the said phone. During this talk, Shri Naresh Saini wrote the address of accused S.K. Gupta on a piece of paper. Thereafter, Shri Naveen Jain and Shri Naresh Saini came and sat in the "Toyota Qualis" car and Uday Shankar went back to his car and all the said persons started to leave the petrol pump.
g) At this stage, Shri Rohit Kapoor, DSP, CBI stopped the said C.C. No: 02/2015 Page No. 7 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 vehicles and challenged them. Shri Naveen Jain on questioning confirmed his identity as Naveen Jain s/o Shri Hitesh Chandra Jain, R/o 141, Kirti Nagar, Sector 15, Part I, Gurgaon. Shri Naresh Saini on questioning introduced himself as son of Shri Teja Singh, R/o 980/5, Patel Nagar, Gurgaon. Shri Naveen Jain disclosed that he had come there on the directions of accused Sanjeev Kumar, who had directed him to contact accused Uday Shankar at Petrol Pump near Ashok Hotel, Niti Marg, New Delhi and collect money as directed by him and he had asked his friend Shri Naresh Saini to accompany him. Shri Naveen Jain further disclosed that after meeting at the Petrol Pump near Ashok Hotel, Niti Marg, New Delhi, accused Uday Shankar borrowed his mobile phone and made a call to accused S.K. Gupta, and during the conversation accused Uday Shankar gave the mobile phone to him for confirming the address of accused S.K. Gupta. Shri Naveen Jain talked to accused S.K. Gupta and took his residential address which was noted down by Shri Naresh Saini C.C. No: 02/2015 Page No. 8 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 on a piece of paper. Accused Uday Shankar also purportedly made a disclosure that he had come to the petrol pump to take illegal gratification of Rs. 7 lacs from S.K. Gupta and that after speaking to S.K. Gupta, using the phone of Naveen Jain he had come to know that S.K. Gupta was tired as he had returned from abroad that morning itself and therefore could not come to the petrol pump for delivering the money and he therefore had told S.K. Gupta that he would be sending Naveen Jain to collect the money from his residence.
h) Shri Rohit Kapoor, DSP, in view of the said disclosures then directed the CBI team officers, the independent witnesses and accused Uday Shankar to proceed with Shri Naveen Jain to the residence of accused S.K. Gupta at Rana Pratap Bagh. The team accordingly proceeded in different vehicles and reached Rana Pratap Bagh at around
02.00 p.m. After locating the house of accused S.K. Gupta, Shri Rohit C.C. No: 02/2015 Page No. 9 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 Kapoor, Shri N.K. Mishra and Shri Ashish Mukherjee (Independent witness) stayed at a safe distance. Shri R.G. Mishra, Inspector, CBI was directed to accompany Shri Naveen Jain along with independent witness Shri Dale Ram inside the residence of accused S.K. Gupta at D17, Rana Pratap Bagh, Delhi.
i) At about 02.05 p.m., the door of accused S.K. Gupta was knocked by Shri Naveen Jain who asked the attendant for the said accused. Accused S.K. Gupta was accordingly informed by the attendant and after permission, the door was opened and Inspector R.G. Mishra, Naveen Jain and Dale Ram were let in. These three were then taken to the first floor and made to sit in the drawing room. After a while accused S.K. Gupta came to the Drawing Room and asked the identity of aforesaid three persons. Shri Naveen Jain introduced himself as Naveen Jain, Shri R.G. Mishra as his driver and Shri Dale Ram, independent C.C. No: 02/2015 Page No. 10 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 witness, as the friend of Shri R.G. Mishra. Shri Naveen Jain then told accused S.K.Gupta that accused Sanjeev Kumar had sent him for taking the money. Accused S.K. Gupta rang up accused Sanjeev Kumar to confirm the genuineness of Shri Naveen Jain and Naveen Jain also talked to accused Sanjeev Kumar. On confirmation of the identity of Shri Naveen Jain, accused S.K. Gupta brought a sum of Rs.7,00,000/ in a polythene bag and handed it over to Shri Naveen Jain.
j) Shri R.G. Mishra, Shri Dale Ram and Shri Naveen Jain thereafter came out of the house of accused S.K. Gupta and the aforesaid facts were told by them to the other team members. The amount given to Shri Naveen Jain was again counted by the team and it was found to be Rs.7,00,000/. Two recovery memos were prepared regarding the aforesaid proceedings.
C.C. No: 02/2015 Page No. 11 of 91
Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017
k) Accused Uday Shankar, accused Sanjeev Kumar, Shri Naveen Jain and accused S.K. Gupta were thereafter placed under arrest and on 21.05.2004 itself, the office premises of accused Uday Shankar was searched by Shri S.K. Sharma, DSP, CBI and, file No. 76 (DD)2002/AAC of M/s Hazoor Sahib Chemicals Pvt. Ltd. was seized.
2. Thus the case of the prosecution in a nutshell in the present case is that accused S.K. Gupta was a Naptha licencee and used to deal with naptha/solvent, which was being illegally diverted for the purpose of adulteration of petrol etc and accused Uday Shankar despite being directed by his superior officer did not take any action against the aforesaid activity of adulteration and abused his official position and demanded and attempted to accept bribe money of Rs.7,00,000/ from accused S.K. Gupta through his conduit, accused Sanjeev Kumar. (Admittedly a separate chargesheet has been filed against the accused C.C. No: 02/2015 Page No. 12 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 Uday Shankar and accused Sanjeev Kumar with respect to the allegations that Uday Shankar had amassed assets disproportionate to his income and that accused Sanjeev Kumar had aided and abetted him in doing so).
3. Based on the material on record, one of the Ld Predecessors of this court framed charges against all the accused persons for the offences punishable under section 120B of the IPC read with section 7 or in the alternative section 11 and sections 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act 1988. Separate charges were also framed against each of the accused persons - accused Uday Shankar was charged for having committed the offence punishable under section 7 of the Prevention of Corruption Act or in the alternative for having committed the offence punishable under section 11 and also for the offence punishable under section 13 (1) (d) read with Section 13 (2) and Section 15 of the said Act. Accused S.K. Gupta and accused Sanjeev C.C. No: 02/2015 Page No. 13 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 Kumar were charged for having committed an offence punishable under section 12, read with section 7 or in the alternative section 11, of the Prevention of Corruption Act.
4. In order to prove its case the prosecution has examined 23 witnesses. PW1 Surjit Singh is the Personal Secretary of accused Uday Shankar and as per his deposition he had handed over the file pertaining to Hazoor Sahib Chemical Pvt. Ltd to the CBI officials and the said file as per this witness had been kept in an almirah in the office of the accused Uday Shankar. PW 2, Shri Suresh Kumar Chandila, the then Deputy Director, Anti Adulteration Cell has proved the inspection report Ex.PW2/A which was prepared by him with respect to the inspection carried out, at the premises of M/s Hazoor Sahib Chemicals Pvt. Ltd., Ghaziabad on 14.08.2002, by a team led by accused Uday Shankar. PW 3, Dr. G. Prasanna Kumar, the then Director General, Anti Adulteration C.C. No: 02/2015 Page No. 14 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 Cell has interalia deposed that the inspection report Ex.PW2/A had been put up before him by accused Uday Shankar and that he after endorsing thereon that verification be carried out with respect to the supply of naphtha to some firms by M/s Hazoor Sahib Chemical Pvt Ltd. Ghaziabad, had marked the file to accused Uday Shankar and that despite the said marking no action was taken by accused Uday Shankar on the said report. PW 4 Shri Amit Gupta, PW 12 Shri Narender Kumar Verma and PW 14 Shri Shiv Kumar Verma, have interalia deposed about the sale of solvents made by the company of accused S.K. Gupta to different factories. PW 5 Insp. M.C. Kashyap has interalia deposed about intercepting the phone calls of the accused persons after receiving the requisite orders of the Secretary, Ministry of Home Affairs, preparing recorded call information report with respect to the intercepted calls and thereafter copying the relevant calls on a compact disc. PW 6 Shri Bharat Ram and PW8 Sh. Virender Singh have interalia deposed that C.C. No: 02/2015 Page No. 15 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 the accused persons Uday Shankar and accused Sanjeev Kumar had given their voice samples in their presence respectively. PW7 Shri G.A. Shirwaikar, Executive Director, LPG has proved the sanction order Ex.PW7/A vide which he had given sanction for prosecution of accused Uday Shankar. PW 15, Shri Deepak Tanwar is the Senior Scientific Officer, CFSL who has examined and compared the recorded voices of the accused persons in the intercepted conversations and their voice samples and his report dated 15.12.2006 has been exhibited as Ex.PW15/B. PW9 Sh. Avdesh Kumar, an official of a Cooperative Housing Building Society has placed on record some documents regarding the membership of accused Uday Shankar in the said Society. PW10 Dale Ram and PW17 Ashish Mukherjee are the two independent witnesses who were members of the CBI trap team and they have deposed about the proceedings witnessed by them. PW13 C.C. No: 02/2015 Page No. 16 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 Inspector R.G. Mishra and PW16 the then DSP and Rohit Kapoor are the CBI officials who had headed the trap team. PW22 Gulshan Arora and PW23 Pawan Singh are the Nodal Officers of M/s Hutchson Essar Telecom and M/s Idea Cellular Ltd respectively and they have placed on record the call detail records of two mobile numbers which had been intercepted. PW20, an official from the RTO Gurgaon has placed on record the registration records of the vehicle Toyota Qualis which was involved in the alleged incident. PW19 Pawan Handa has interalia deposed about the relationship between the accused Uday Shankar and Sanjeev Kumar and the modus of their operating. The prosecution has also examined Naveen Jain (PW11) and Naresh Saini (PW18), the two persons who were apprehended at HPCL petrol pump alongwith the accused Uday Shankar. PW 21, Shri D.V. Tripathi, is the Investigating Officer who was handed over the investigation after the trap and he has interalia deposed about the documents seized by him and the C.C. No: 02/2015 Page No. 17 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 investigation carried out by him (the depositions of all the aforementioned witnesses are not being referred to in detail herein for the sake of brevity and the relevant part thereof have been referred to in the later part of the judgment wherever necessary).
5. The depositions of all the aforementioned witnesses were put to the accused persons and their statements were recorded under section 313 Cr.P.C. All the three accused persons in the said statements have denied their complicity in the present case and have interalia denied that they had the telephonic conversations relied upon by the investigating agency. Accused Uday Shankar has interalia taken a defence that after inspection at the factory premises of his coaccused S.K. Gupta, he had sent the inspection report to the Director General, Anti Adulteration Cell and that the file had never come back to him for taking any action and that therefore there was no occasion for him to have shown any undue C.C. No: 02/2015 Page No. 18 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 favour to this accused. He has also denied that he ever demanded Rs. 7 lacs from the accused S.K. Gupta and according to him he has been falsely implicated in the present case at the behest of some custom officials, against whom he had assertedly found material to show that they were aiding illegal import of kerosene and naphta. As per the version given by this accused, on 21.5.2004 he was forcibly picked up by the CBI officials at about 11:30 - 11:45 a.m near Bikaji Gama Place. According to this accused on the said day he had left his office at about 11:20 a.m in the official vehicle allotted to his office through a private contractor and that on the said day his wife had told him to hand over a packet of clothes for the child of his coaccused Sanjeev Kumar Singh and he had told Sanjeev Singh that since he has to go to HPCL office at Laxmi Nagar to sought out some leave matter, he would be dropping the said packet at HPCL Petrol Pump but that he however forgot the said packet at his office only and while his vehicle was crossing the red light C.C. No: 02/2015 Page No. 19 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 of Bikajigama Place, three persons stopped his vehicle, introduced themselves as CBI officials and boarded it and directed his driver to go to the HPCL Petrol Pump. He has further gone on to narrate that at the petrol pump, he for the first time, saw Naveen Jain who was already present there alongwith other CBI officials and that one of the CBI officials then took the mobile phone of Naveen Jain and after dialling a number told him that S.K. Gupta has been called and he should speak to him and ask for his address and he did as he was told. He has further gone to state that thereafter he was made to sit in a CBI vehicle with two other officials apart from the driver and was taken to an area near Azad Pur Road, where the vehicle was parked in a small gali and he remained sitting in the said vehicle for about 1 - 2 hours after which he was taken to the CBI office in Khan Market.
6. Accused Sanjeev Kumar, denied that he had anything to do C.C. No: 02/2015 Page No. 20 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 with the activities of accused Uday Shankar and has taken a defence that he had never acted as a middle man for him for any transaction and that on the date of the incident he had sent Naveen Jain to meet Uday Shankar to collect some clothes for his son. According to this accused, his brotherinlaw Dr. Jitender and the fatherinlaw of accused Uday Shankar hail from the same village in Bihar and that he considers Ms. Meera Shankar, the wife of Uday Shankar as his sister and that is how he had known the accused Uday Shankar. This accused in his statement under section 313 Cr.P.C has interalia narrated that a day or two before 21.5.2004 Meera Shankar had called him on his mobile and had told him that she wants to send some clothes for his son and that she would be sending the same through Uday Shankar and that he should collect the same from him. He has further stated that he used to run a taxi business in Gurgaon in the year 2004 and that Naveen Jain used to work alongwith him and on 21.5.2004 he requested Naveen Jain to go to Delhi to pick up C.C. No: 02/2015 Page No. 21 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 the packet of clothes from accused Uday Shankar and that it was this accused and Naveen Jain who had decided amongst themselves to meet at HPCL Petrol Pump and that he therefore had no knowledge as to what all transpired at the HPCL Petrol Pump.
7. Accused S.K. Gupta in his statement under section 313 Cr.P.C has also interalia denied that he had been apprehended red handed while he was handing over Rs. 7 lacs as bribe to Naveen Jain on the asking of accused Uday Shankar. According to this accused, on 21.5.2004 at about 11:30 a.m three persons came to his residence and introduced themselves as CBI officials and interrogated him about his business and his relations with the accused Uday Shankar. As per the version put forward by this accused he told the said CBI officials that accused Uday Shankar had only once inspected the premises of his firm in August 2002 and that he did not know him at all but that the CBI C.C. No: 02/2015 Page No. 22 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 officials did not believe him and started searching his house and seized Rs. 10,45,000/ from his house which he had kept therein for his business purposes and that when he asked them as to why they have seized the said amount, they told him that he should do as told or they will falsely implicate him in money laundering cases and they even slapped him 23 times. He has further stated that the said persons then took away the mobile phones of his and his wife and even unplugged the landline connection and that about 12:30 - 12:45 a.m they told him that the accused Uday Shankar would be calling him on his mobile phone and that he should give him his address and directions for the same and that he did as he was told under their pressure and coercion. He has further gone on to narrate that the CBI official Rohit Kapoor told him that they only need to apprehend the government official Uday Shankar and that he should cooperate with them and he, on the instructions of Rohit Kapoor, had telephonically called Sanjeev Kumar and asked him if Naveen Jain C.C. No: 02/2015 Page No. 23 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 had been sent to collect the money from him. According to this accused though he cooperated fully with the CBI officials, they falsely implicated him in this case and did not even return to him the amount of Rs. 10,45,000/ that had been seized from his house. In support of his defence this accused examined one Anand Jain, a Chartered Accountant who had been working for his company M/s Hazoor Sahib Chemicals Pvt. Ltd and his own brother Vipin Gupta as DW2. Anand Jain has placed on record the balancesheets of the company M/s Hazoor Sahib Chemicals Pvt. Ltd for the years 20022003, 20032004 and 20042005. DW2 Vipin Gupta, the brother of accused S.K. Gupta in his deposition has interalia explained as to how the amount of Rs. 10,45,000/ was lying in the house of accused S.K. Gupta and how on 21.5.2004, his brother S.K. Gupta was forcibly picked up from his residence by the CBI officials.
C.C. No: 02/2015 Page No. 24 of 91
Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017
8. After the defence evidence was concluded, Ld PP for CBI Ms. Shashi, Dr. Anurag Ld counsel on behalf of accused Uday Shankar, Sh. P.K. Dubey, Ld counsel on behalf of accused Sanjeev Kumar and Sh.
Pawan Kumar, Ld counsel on behalf of accused S.K. Gupta advanced final arguments. All the Ld counsels have also filed on record detailed written submissions.
9. On behalf of the prosecution, Ld PP has interalia submitted that the prosecution has proved on record three sets of incriminating circumstances which prove the guilt of all the three accused persons beyond all reasonable doubt. She has pointed out that the first of the said circumstances is the recording of the telephonic conversations which took place between all the three accused persons and this according to her proves not only the demand of bribe made by accused Uday Shankar from the accused S.K. Gupta but also proves that Naveen Jain was sent by C.C. No: 02/2015 Page No. 25 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 accused Sanjeev Kumar on the asking of accused Uday Shankar to the petrol pump in question to collect the bribe amount from accused S.K. Gupta on 21.5.2004. The second incriminating circumstance relied upon by the Ld. PP is the presence of accused Uday Shankar and Naveen Jain on 21.5.2004 at the petrol pump in question and thereafter the making of telephone call by accused Uday Shankar to S.K.Gupta and reiterating his demand of 7 lacs and also telling S.K.Gupta that he is sending Naveen Jain to his residence to collect the bribe amount and for this she has relied upon the testimony of PWs 13, 16 and 17. The third set of incriminating circumstance relied upon by the ld PP is the apprehension of accused S.K. Gupta from his residence at the time of his handing over the demanded bribe of Rs. 7 lacs to Naveen Jain in the presence of the CBI official PW
13. According to Ld PP the aforementioned circumstances have all been proved beyond any reasonable doubt against the three accused persons and that the same prove that all three of them are guilty of the charges for C.C. No: 02/2015 Page No. 26 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 which they have faced trial.
10. In reply all the Ld Defence counsels have submitted that the first set of circumstance namely the recorded telephonic conversations assertedly held between the accused persons has not at all been proved by the prosecution. It has been submitted on behalf of the defence that the following deficiencies in the evidence led in this regard make the said telephonic conversations absolutely inadmissible in evidence.
Alleged Phone Tapping was without permission - though calls of the accused were being tapped since January 2004, sanction was granted by MHA as per the orders filed on record, for Sh. Uday Shankar on 20.2.2004, for Sh. Sanjeev Kumar on 20.4.2004 and Sh. S.K. Gupta on 13.5.2004.
Further even the eight purported orders of MHA placed on record have not been proven by any of the prosecution witnesses and C.C. No: 02/2015 Page No. 27 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 therefore cannot be read in evidence. Four orders of interception have not even been placed on record and have been withheld by the IO for which he has not given any explanation.
No evidence has been led to show that the orders of the MHA were communicated to the concerned mobile service provider and further no telephone number has been revealed by the investigating agency on which the allegedly intercepted calls were diverted by the service mobile provider to the investigating agency. Intercepted calls have to be matched with the calls in the CDRs of the intercepted numbers, to prove that the numbers purported to have been intercepted are actually the numbers that have been intercepted. However the alleged CDRs have not been proven as they do not have a certificate under section 65 B of the Evidence Act and there is no way of knowing whether the numbers allegedly intercepted are actually the ones purported to have been C.C. No: 02/2015 Page No. 28 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 intercepted. It has been pointed out that the CBI official M.C. Kashyap who had assertedly prepared a CD of the intercepted calls has taken a stand that he had via email requisitioned the CRDs from the service provider and thereafter matched the same with the report of the intercepted calls. However neither the said email nor the said CDRs used by M.C. Kashyap have been placed on the judicial record.
In the alternative it has been submitted that if the CDRs placed by the service provider on record of the court during trial are read in evidence, it is clear that there is an unexplained difference in timing and duration of the calls shown in the RCIR and CDR and no clarification whatsoever has been sought by the prosecution from the service provider regarding this difference in time. The testimony of M.C. Kashyap makes it apparent that he has no knowledge about the working of the system via which the calls C.C. No: 02/2015 Page No. 29 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 were intercepted and a CD thereof was made and therefore the purported certificate issued by him u/s 65B of the Evidence Act is of no value whatsoever.
There is no explanation forthcoming from the prosecution as to on what basis M.C. Kashyap copied in the CD in question only 14 intercepted calls and left out the remaining calls which were available with him including the ones that were made on the date of the alleged trap.
The fact that M.C. Kashyap himself cut and pasted only 14 intercepted calls raises a huge question of authenticity of the CD in question and in such circumstances the tampering of the CD cannot at all be ruled out.
The CBI expert who has purportedly analyzed and compared the voice samples of the accused persons with that of the intercepted calls has admitted in his crossexamination that he was not asked to C.C. No: 02/2015 Page No. 30 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 verify whether the CD in question has been tampered or not and in the absence of the said verification and examination of the recording equipment by the said expert, the guidelines laid down by the Hon'ble Supreme Court and Hon'ble Delhi High Court in their various judgments before treating a tape recorded conversation as admissible in evidence, have not been satisfied and therefore the said CD containing intercepted call conversations allegedly between the accused persons cannot at all be read in evidence.
The opinion of the CFSL expert, PW15 Deepak Tanwar cannot at all be relied to hold that the voices in the recorded telephonic conversations belonged to the accused persons because his cross examination not only reveals that the requisite precautions were not taken by the IO at the time of recording of the voice samples of the accused persons but also makes it clear that he himself has not been C.C. No: 02/2015 Page No. 31 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 able to conclusively opine that the voice in the recorded telephonic conversations belongs to the accused persons only. Various judicial dicta has been referred to to contend that voice identification is completely insufficient for a court to base conviction upon it. It is the contention of the Ld counsels that in the present case where the investigating agency has not even bothered to prove that the mobile numbers in question were subscribed to in the name of the accused persons, the opinion of the CFSL expert can hardly be relied upon by this court to give a finding that the recorded telephonic conversations were made by the accused persons only.
11. In addition, Ld counsel Dr. Aggarwal on behalf of accused Uday Shankar and Ld counsel Sh. Pawan Kumar on behalf of accused S.K. Gupta have strenuously contended that even if for the sake of arguments the telephonic conversations relied upon by the prosecution are C.C. No: 02/2015 Page No. 32 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 held to be admissible by this court, even then the same do not at all prove the commission of the offences punishable u/s 11 or section 13 (1) (d) of the P.C. Act by the accused persons. The submission of the Ld counsels is that the prosecution has not been able to show as to what favour was to be granted by accused Uday Shankar to accused S.K. Gupta for which S.K. Gupta would pay Rs. 7 lacs to Uday Shankar. It has been submitted that in the inspection report Ex.PW2/A prepared by S.K. Chandila, there were no incriminating findings against accused S.K. Gupta which would have warranted any action against him and further the said file containing inspection report was never even put up before accused Uday Shankar after endorsement by the DG, Sh. Prasanna Kumar and therefore there was no occasion for the accused Uday Shankar to have taken any action against S.K. Gupta or to have shown any favour to him. According to the ld counsels the telephonic conversations only reveal that Uday Shankar requested the accused S.K. Gupta for some financial help and that the C.C. No: 02/2015 Page No. 33 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 same cannot be construed at all be an illegal gratification. The contention of Ld counsel Dr. Aggarwal is that the offences punishable under the P.C Act mandatorily require the presence of a dishonest intention on behalf of the accused and according to him the prosecution in the present case has failed to prove that the accused Uday Shankar had any dishonest intention in demanding Rs. 7 lacs from accused S.K. Gupta.
12. The submission further is that there is a gap of almost two years between the inspection carried out by accused Uday Shankar on 14.8.2002 and the alleged demand made by him in the month of May 2004 and therefore the contention is that there is absolutely no connection between the said inspection report and the demand made. Ld counsel Sh. Pawan Kumar has further contended that section 11 of the PC Act is attracted only where the public servant is presently having official dealings with another person or is likely to have official dealings with C.C. No: 02/2015 Page No. 34 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 him in future and it is not applicable to the cases where a public person had in the past some official dealings with the concerned person.
13. As regards the proceedings that purportedly took place at the HPCL petrol pump, it has been pointed out by the Ld Defence counsels that the own witness of the prosecution, PW10 Dale Ram has not supported the version of the prosecution and has categorically stated that it was the CBI officials who made Naveen Jain and Uday Shankar speak to S.K. Gupta. Apart from the said fact it has been pointed out that no employees of petrol pump were joined to call the proceedings and that itself casts a doubt on the proceedings that assertedly took place at the petrol pump. It has also been submitted that no site plan of the petrol pump was prepared to show the position of the vehicle in which Uday Shankar assertedly came and parked itself or to show the position of the vehicle in which Naveen Jain came. According to the Ld Defence C.C. No: 02/2015 Page No. 35 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 counsels the fact that neither the car in which accused Uday Shankar allegedly came to the petrol pump was seized nor the statement of the driver of the car was recorded clearly shows that the accused Uday Shankar had not on his own come to the petrol pump and he was infact forcibly brought there by the CBI officials as narrated by him in his statement tendered under section 313 Cr.PC. As regards the disclosures made by accused Uday Shankar and Naveen Jain at the petrol pump, the contention is that the same are hit by section 26 of the Evidence Act as by the time the said disclosures were allegedly given, the said persons were effectively in the custody of the CBI.
14. The third set of circumstance namely the handing over of the bribe of Rs. 7 lacs by accused S.K. Gupta to Naveen Jain, has also not been proved at all as per the contentions of the Ld Defence counsels. In this respect it is again the testimony of PW10 Dale Ram which has been C.C. No: 02/2015 Page No. 36 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 relied upon. It has been pointed out this witness has categorically deposed that some CBI officials were already present at the residence of accused S.K. Gupta when he alongwith the team of CBI officials reached the said residence and this according to Ld counsel Sh. Pawan Kumar proves the defence taken by the accused S.K. Gupta in his statement u/s 313 Cr.P.C. In addition the depositions of PW13 Inspector R.G. Mishra and PW17 Ashish Mukherjee have also been referred to in detail to show that infact it was an amount of Rs. 10,45,000/ which was seized from the house search of accused S.K. Gupta and not from any bag that S.K. Gupta had handed over to Naveen Jain. It has also been pointed out the fact that the investigating agency has not even bothered to produce the bag in which the alleged bribe amount of Rs. 7 lacs was kept by accused S.K. Gupta and handed over to Naveen Jain clearly shows that the entire version put forward by the prosecution of the proceedings that took place at the premises of S.K. Gupta was concocted by the CBI officials. C.C. No: 02/2015 Page No. 37 of 91
Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 Various other contradictions and inconsistencies in the depositions of PW13 and PW16, the senior most CBI officials in the trap team have also been pointed out to contend that they are not credible witnesses.
15. Apart from the aforementioned contentions, it has also been contended by the Ld Defence counsels that the evidence on record by the prosecution clearly reveals that the FIR in the present case was ante dated. It has been pointed out that the prosecution has not been able to give any satisfactory explanation as to how the FIR which was purportedly registered on 21.5.2004 at 10:45 a.m contains therein the name and address of Naveen Jain when as per the statement made by the main Investigating Officer Rohit Kapoor in his crossexamination, the name and address of Naveen Jain was disclosed to the investigating agency for the first time only after his apprehension at about 12:10 p.m on 21.5.2004.
C.C. No: 02/2015 Page No. 38 of 91
Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017
16. It has also been contended that the entire investigation should be held to be illegal in as much as no preliminary inquiry was conducted by the investigating agency despite that such an inquiry is mandatory as per the CBI manual.
17. All Ld Defence counsels have relied upon various judgments in support of their contentions. The judgments placed on record and relied upon by Ld counsel Dr. Anurag for accused Uday Shankar are as follows :
State of H.P Vs Jai Lal & Ors. (1999) 7 Supreme Court Cases
280.
Ram Singh & Ors. Vs Col. Ram Singh 1985 (Supp) Supreme Court Cases 611.
Anvar P.V Vs P.K. Basheer & Ors. (2014) 10 Supreme Court C.C. No: 02/2015 Page No. 39 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 Cases 473.
People's Union For Civil Liberties (PUCL) Vs Union of India & Anr. (1997) 1 Supreme Court Cases 301.
C. Sukumaran Vs State of Kerala (2015) 11 Supreme Court Cases 314.
Runu Ghosh Vs CBI 2011 SCC Online Del 5501 R. Balakrishna Pillai Vs State of Kerala (2003) 9 Supreme Court Cases 700.
State of Maharashtra & Ors. Vs Jalgaon Municipal Council & Ors. (2003) 9 Supreme Court Cases 731.
C.K. Jaffer Sharief Vs State (2013) 1 Supreme Court Cases
205.
Chittaranjan Shetty Vs State (2015) 15 SCC 569 C.C. No: 02/2015 Page No. 40 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017
18. The judgments placed on record and relied upon by Ld counsel Sh. P.K. Dubey for accused Sanjeev Kumar are as follows :
People's Union For Civil Liberties (PUCL) Vs Union of India & Anr. (1997) 1 Supreme Court Cases 301.
Anvar P.V Vs P.K. Basheer & Ors. (2014) 10 Supreme Court Cases 473.
Harpal Singh @ Chota Vs State of Punjab (2017) 1 JCC 296. P. Sirajuddin etc Vs State of Madras (1970) 1 SCC 595. Ram Singh Vs Col. Ram Singh AIR 1986 SC 3 Ashish Kumar Dubey Vs State through CBI (2014) 142 DRJ
396.
S.K. Saini & Anr. Vs CBI (2015) 3 JCC 2169.
19. The judgments placed on record and relied upon by Ld counsel Sh. Pawan Kumar for accused S.K. Gupta are as follows : C.C. No: 02/2015 Page No. 41 of 91
Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 N.R. Sekharan Vs State of Kerala 2015 SCC OnLine Ker 16304 N.A. Abdul Rahiman Vs State of Kerala 2015 SCC OnLine Ker 14979.
Yogesh Kumar Vs State 2009 SCC OnLine Del 641 State Vs Someshwar & Ors. 2005 SCC OnLine Del 537. Ripun Bora Vs State WP 2011 SCC OnLine Del 5235. R.S. Nayak Vs A.R. Antulay AIR 1986 SC 2045. Aghnoo Nagesia Vs State of Bihar (1966) 1 SCR 134. Ramjanam Singh Vs State of Bihar AIR 1956 SC 643. Tryambak Lilaji Binner Vs State of Maharashtra 2002 Crl.L.J 3059. Nilesh Dinkar Paradkar Vs State of Maharashtra JT (2011) 3 SC 429. C.C. No: 02/2015 Page No. 42 of 91 Judgment in the matter of:- CC No. 02/2015 (C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 19A. In rebuttal, Ld PP for CBI Ms. Shashi has contended that
even if there are any shortcomings in the mode of proving the orders of interception and the same cannot be read in evidence, the telephonic conversations are still admissible in evidence as per the judicial dicta pronounced by the Hon'ble Supreme Court in the cases titled and reported as R.M. Malkani Vs State of Maharashtra, AIR 1973 SC 157 and Umesh Kumar Vs State of Andhra Pradesh & Anr (2013)10 SCC 591 and as per the judicial dicta pronounced by the Hon'ble Delhi High Court in the case titled and reported as Dharamvir Khattar Vs Union of India 2013 Cri LJ 2011.
20. As regards the contention of the defence with respect to the tampering of the CD containing the recorded telephonic conversations, Ld PP has referred to, in detail, the deposition of PW5 M.C. Kashyap to contend that his deposition proves beyond all reasonable doubt the veracity and authenticity of the recorded telephonic conversations and it C.C. No: 02/2015 Page No. 43 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 is her submission that the certificate tendered by this witness u/s 65 B of the Evidence Act makes the recorded telephonic conversations not only admissible but also proves that the CD containing the said conversations has not been tampered with at all. The submission of the Ld. PP is that the voice logger machine could not have been produced in the court or before the expert for its examination, for the said recording device, like a computer is so huge that it is next to impossible to move it from its place of installation. It is her further contention that as has been deposed by PW5, the very nature of the voice logger machine is such that it automatically records all the telephonic conversations and there is no question of interpolation therein by any means whatsoever. She has therefore submitted that the non examination of the voice logger machine, the recording device in the present case by an expert is not fatal to the admissibility of the CD containing the telephonic conversation between the accused persons and that the judicial dicta relied upon by the Ld C.C. No: 02/2015 Page No. 44 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 Defence counsels in this respect does not come to the aid of the defence.
21. As regards the copying of only 14 intercepted calls in the CD in question, the submission is that these were the only relevant calls which prove the conspiracy entered into by the accused persons and that therefore no prejudice can stated to have been caused to the accused persons if the other calls have not been placed before the court by the investigating agency. It has been further submitted that each of the intercepted calls is saved in a separate folder in the voice logger machine and therefore there cannot be any question of tampering of the said telephonic conversations merely because only 14 intercepted calls were copied in the CD.
22. Countering the submissions of the defence that the accused Uday Shankar had no criminal intention in requesting the accused S.K. C.C. No: 02/2015 Page No. 45 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 Gupta for a loan of Rs. 7 lacs and that he had no occasion to grant any favour to accused S.K. Gupta, Ld PP has submitted that the noting made by Sh. G. Prasanna Kumar on the inspection report placed before him, to the effect that verification of the firms to whom large quantity of sale of naphtha should be done and the fact that despite this noting no action was taken by Uday Shankar and he kept the file in his almirah for almost two years shows that he did so only to favour S.K. Gupta. Thus according to Ld PP the demand of money made by accused Uday Shankar had a tangible relation to the inaction on part of accused Uday Shankar despite the directions of Director General, Anti Adulteration Cell and it was a quid pro quo transaction between the two accused persons. It is also the contention of Ld PP that the intercepted telephonic conversations make it clear that the demand of Rs. 7 lacs made by accused Uday Shankar was not at all a loan as contended by the defence. She has pointed out that in the conversation recorded at 12:41 p.m on 21.5.2004, the accused Uday C.C. No: 02/2015 Page No. 46 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 Shankar specifically tells accused S.K. Gupta that he must, while handing over the money, say that the money was in the form of loan and this according to her itself shows that the transaction was not that of a loan. She has further contended that the entire tenor of the conversation between the accused persons defies any theory of a friendly loan and the same coupled with the fact that the accused Uday Shankar despite sending Naveen Jain to the petrol pump in question to collect the money, himself also went to confirm the delivery of money completely negates that the transaction was that of a loan.
23. As regards the deposition of PW10 Dale Ram, not supporting the version of the prosecution, the submission is that this witness has turned hostile as he has been won over by the accused persons and that despite him turning hostile, this court should accept the prosecution version on the basis of the deposition of the other trap C.C. No: 02/2015 Page No. 47 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 witness Ashish Mukherjee and the CBI officials more so when the same is corroborated by the recorded telephonic conversations. In respect of this contention Ld PP has relied upon the following judgments :
State of UP Vs G.K. Ghosh AIR 1984 SC 1453 Gurpreet Singh Vs State of Haryana AIR 2002 SC 3217 Gubbala Venugopalaswamy Vs State of Andhra Pradesh 2004 Crl.L.J 2557 (SC).
Radha Mohan Singh Vs State of UP 2006 Crl.L.J 1121 (SC) State of Maharashtra Vs Narsingrao Gangaram Pimple AIR 1984 SC 63.
Sardul Singh Vs State of Haryana (2002) 8 SCC 372.
24. Having carefully considered the submissions of both the Defence and the Prosecution and the evidence on record, this court is of C.C. No: 02/2015 Page No. 48 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 the considered opinion that though the prosecution has been able to prove that the accused Udai Shankar in dischage of his official duties, had shown favour to accused S. K. Gupta, the accused persons cannot be held guilty of the offences that they have charged with. In the considered opinion of this court though it has been rightly contended by the Prosecution that the fact that the file pertaining to Hazoor Sahib Chemicals Pvt Ltd, the firm of accused S.K.Gupta, Ex.PW 2/A marked to the accused Udai Shankar by the Director General, Anti Adulteration Cell on 23.8.2002 with directions to verify the supply of Naptha by this firm to its various customers, was recovered from his office without there being any such verification carried out by him proves that he had shown favor to accused S. K. Gupta, however the said fact alone, is not sufficient in itself to prove the commission of the offences with which the accused persons have been charged with in the present case. This is so because when it is the specific case of the prosecution that as a reward for not C.C. No: 02/2015 Page No. 49 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 carrying any verification on the lines proposed by the DG, the accused Uday Shankar demanded and attempted to obtain 7 lacs from accused S.K. Gupta, they were also bound to have proved the said demand, which they have failed to do. Before adverting to the reasons for the said conclusion this court makes it clear that it does not agree with the contentions of the Defence that since the prosecution has failed to specifically prove that the aforementioned file after it was put up before the PW3 G. Prasanna Kumar, the then Director General, Anti Adulteration Cell was handed over back to the accused Uday Shankar, it cannot be held that the file was with him and he had an opportunity to favour the accused S.K. Gupta and further that even otherwise the inspection having been done two years prior to the alleged demand cannot be held to have any tangible relation therewith- in the considered opinion of this court the deposition of PW1 Surjit Singh, the Private Secretary / Assistant to the accused Uday Shankar clearly proves that the file C.C. No: 02/2015 Page No. 50 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 pertaining to accused S.K. Gupta, was received back by accused Uday Shankar after the Director General had put up his comments / directions on the same for this witness has clearly deposed that the file in question was kept in an almirah kept in the office of accused Uday Shankar himself. This witness has categorically deposed in his examination that he used to maintain and have custody of only those files which were pertaining to the work of accused Uday Shankar and that all such files were kept in two almirahs in the office of the accused Uday Shankar. The further contention of the defence that had the accused Uday Shankar intended to show favour to S.K. Gupta, he would not have kept the file in question in open in the two almirahs but would have kept the file guarded with him also does not hold much merit. In the considered opinion of this court it was not necessary for the prosecution to have proved that the file in question was recovered from the physical possession of the accused - the fact that it was recovered from his office and no action had been taken C.C. No: 02/2015 Page No. 51 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 by him despite the directions of his superior officer to verify certain facts clearly proves that he had the occasion and motive to demand a bribe from the accused S.K. Gupta in consideration of his not acting upon the file in question. The further contention of the defence that the inspection report, Ex.PW2/A itself did not contain any incriminating facts against S.K. Gupta has also not much merit for the said report clearly mentions that the quantity of naphtha having been shown to have been supplied to some firms was found to be very high and that the said supplies required verification and inquiry. It is also immaterial whether or not the verification would have actually disclosed any incriminating facts against accused S.K. Gupta - the material fact is that the accused Uday Shankar despite being a public official and duty bound to have verified the facts directed by his superior, the Director General, in this case did not do so. The fact that the inspection was done two years prior to the alleged demand of bribe, infact shows that for a period of almost two years, the C.C. No: 02/2015 Page No. 52 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 accused Uday Shankar had been continously showing favour to the accused S.K. Gupta by not taking any action, as directed by the Director General. Further the contention of Ld. Counsel Sh. Pawan Kumar that for the purposes of invoking section 11 of the PC Act against the accused persons Uday Shankar and S.K.Gupta, the business to be transacted by Uday Shankar, the public servant, with accused S.K.Gupta should have been in "present" has absolutely no merit for the words "have been", "to be" and "likely to be", used in the said section clearly show that the transaction of proceedings of business could have been in the past, present or in future.
25. However having held so, coming back now to the reasons as to why this court is of the opinion that the prosecution cannot still be held to have proved its case against all the accused persons for it has failed to prove the demand made by accused Uday Shankar it will be now relevant C.C. No: 02/2015 Page No. 53 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 to consider the evidence produced by the investigating agency in this respect. Though to prove the said demand by accused Uday Shankar the prosecution has firstly relied upon two telephonic conversations that purportedly took place between these two accused persons on 20.5.2004, in the considered opinion of this court the prosecution has failed to prove that these two calls copied in CD, Ex.PW5/ME1 had been made by the accused Uday Shankar only and further that the recording made in the said CD has not been tampered with. As per the deposition of PW5 M.C. Kashyap, after the orders for interception of the telephone numbers purportedly being used by the accused persons were received from the Home Secretary the service providers were requested to divert all the calls of the telephone numbers under surveillance, to the telephone number provided by the CBI and the said telephone number of the CBI was attached with the computer system which is called a voice logger and this system recorded every call which was diverted by the service C.C. No: 02/2015 Page No. 54 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 provider, to the telephone number provided by the CBI and that after he had heard all the intercepted calls, alongwith the senior officials, he had copied 14 of the intercepted calls in the CD, Ex.PW5/ME1. He has further narrated that thereafter he had prepared the Recorded Calls Information Report, (RCIR) Ex.PW5/B and that the said report contains the details of each of the 14 calls which were intercepted and recorded. In his crossexamination this witness has categorically stated that he had prepared the said report after matching the calls from the call details record requisitioned from the service providers in question. However he admits that he had neither provided to the IO, the email vide which he had requisitioned the said detail records nor the email vide which the said details were received from the service providers. In other words the call detail records on the basis of which the details of the telephone calls recorded in the voice logger are mentioned in the report Ex PW5/B were not provided by this witness to the IO. Further admittedly the concerned C.C. No: 02/2015 Page No. 55 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 investigating officer D.V. Tripathi, to whom PW5 M.C. Kashyap had handed over the CD in question alongwith the report has also not collected all the said details. He has vaguely deposed in his examination in chief that during investigation he had collected some call details record from M/s Idea Cellular and one or more mobile companies, the names of which he cannot recall and that in this regard he had received the documents D18 to D21. Now a perusal of Ex.PW5/B, the RICR prepared by PW5 shows that the numbers of the telephones / mobiles which were intercepted are 9811326056, 9868128356, 26104502, 26104428, 9810066480 and 9891129606. However D18 to D21 are the call detail records only of 9868128356, 9891129606 (belonging to PW Naveen Jain as per the prosecution) and 9811326056 (belonging to Shweta Singh, the wife of accused Sanjeev Kumar as per the prosecution). The CDRs of the remaining numbers were not even collected by the IO.
C.C. No: 02/2015 Page No. 56 of 91
Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017
26. Further even if the contention of the Ld. PP that since Ex.PW5/B has been deposed by PW5 to have been prepared by him only after matching the call details from the CDRs, the same should be relied upon to identify the mobile numbers, is accepted even then it cannot be ignored that the two most material conversations which the accused Uday Shankar allegedly had with S.K. Gupta on 20.5.2004 demanding the bribe of Rs. 7 lacs and which are shown at serial no. 6 and 8 of Ex.PW5/B do not even mention the number which was used by accused Uday Shankar to make the said conversations. Admittedly the prosecution has not brought on record any evidence to show from which number were the said calls made and it is being contended that the said calls were made by accused Uday Shankar only because the voice in the said calls has been opined to be that of him by the CFSL expert PW15 Deepak Tanwar to whom admittedly the CD in question and the voice samples of the C.C. No: 02/2015 Page No. 57 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 accused persons were sent for analysis and comparison. In the considered opinion of this court the testimony and report of PW15 that the voices in the CD in question are the probable voices of the accused persons cannot be relied upon to arrive at the finding that the telephonic conversations intercepted by the investigating agency and those copied in the CD were made by the accused persons only, because this expert PW15 Deepak Tanwar in his crossexamination has admitted that the hard disc of the computer system, i.e the voice logger machine - the recording device in the present case was not sent to him for examination and no opinion was sought from him to examine the CD in question to rule out the possibility of its tampering. The said statements of the expert, in view of the judicial dicta laid down by the Hon'ble Supreme Court in the case titled and reported as Ram Singh Vs Col. Ram Singh, 1985 (Supp.) SCC 611 and that laid down by the Hon'ble High Court in the case titled and reported as Ashish Kumar Dubey Vs State through CBI (2014) 142 DRJ 396 C.C. No: 02/2015 Page No. 58 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 and S.K. Saini & Anr. Vs CBI (2015) 3 JCC 2169, K. Lal Vs CBI 2013 (3) JCC 1637 (supra the judgments relied upon by the Ld Defence counsels), have to be held by this Court, to be sufficient in themselves to make the purported telephonic conversations being relied upon by the prosecution totally inadmissible in evidence. Though no doubt in view of the judicial dicta laid down by the Hon'ble Supreme Court in R.L. Malkhani's case (supra - the judgment relied upon by the Ld. PP) the mere fact that the prosecution failed to prove the interception orders does not make the the said conversations inadmissible, however in view of the judicial dicta laid down in Ram Singh, Ashish Kumar Dubey, S.K. Saini and K.Lal's cases, the CD containing the telephonic conversations is rendered inadmissible in evidence. In the former judgment the Hon'ble Supreme Court has laid down the following conditions which are necessary to be fulfilled before admitting a tape recorded statement in evidence :
C.C. No: 02/2015 Page No. 59 of 91
Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 "(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 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 The Indian Evidence Act.
(5) The recorded cassette must be carefully sealed and kept in safe or official custody.
(6) The voice of the speaker should be clearly audible and not lost or distorted by other sounds or disturbances."
C.C. No: 02/2015 Page No. 60 of 91
Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017
27. In Ashish's case the Hon'ble Delhi High Court after discussing the entire law with respect to the admissibility of a tape recorded evidence and in particular referring to the dicta laid down by the Hon'ble Supreme Court in Ram Singh's case (supra) has categorically held that in the absence of the recording device being examined by an expert for ruling out the possibility of tampering, the cassette containing the recorded conversation is an inadmissible piece of evidence. In the case before Hon'ble Delhi High Court also the recording device namely MCR was neither sent to CFSL for examination nor was produced before the court and in such facts the Hon'ble Delhi High Court held that the condition laid down by the Hon'ble Delhi High Court in Ram Singh's case namely that every possibility of tampering with must be ruled out, has not been satisfied and that therefore the Ld Trial Court had erred in C.C. No: 02/2015 Page No. 61 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 considering the taperecorded statement as admissible in evidence.
28. Now admittedly in the present case as narrated herein above the facts brought to the fore during trial reveal that the recording device, the voice logger machine which was used to record the intercepted telephonic conversations was never examined by the CFSL expert PW 15 Deepak Tanwar and no opinion was sought from him by the investigating agency with respect to the non tampering of the CD in which 14 calls including the two calls in question were copied by PW5 M.C. Kashyap. In other words the condition laid down by the Hon'ble Supreme Court and the Delhi High Court regarding the possibility of tampering with the CD in question has not been ruled out at all by the prosecution. The contention of Ld PP Ms. Shashi that it was not feasible for the investigating agency to send the recording device in the present case, namely the voice logger machine to the expert to rule out the tampering in C.C. No: 02/2015 Page No. 62 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 the CD and that this court must take into consideration the deposition of PW 5 M.C. Kashyap that the very nature of the voice logger machine is such that it cannot be tampered with and that therefore this court must not insist upon the conditions laid down by the Hon'ble Supreme Court and Hon'ble High Court in the judicial dicta referred to by the defence, cannot be accepted for it was not the machine which was required to be sent for its examination but it is the hard disc alone which had to be sent for examination to the CFSL expert. It cannot be doubted that hard disc is a device which is capable of being examined by an expert and since the same was not sent for examination in the present case, it will have to be in view of the judicial dicta laid down by the Hon'ble Delhi High Court in Ashish Kumar Dubey's case that condition no. 3 laid down by the Hon'ble Supreme Court in Ram Singh's case has not been satisfied. Further in the considered opinion of this court it was for the CFSL expert to have given an affirmative opinion in the court about the nature of the C.C. No: 02/2015 Page No. 63 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 voice logger machine being impossible to be tampered with - infact on a question put to him in his crossexamination he has merely deposed that the hard disc of the voice logger machine was not sent to him for examination. This court cannot accept the mere deposition of PW5 to arrive at the said decision, keeping in view the admissions made by him in his crossexamination that he has no knowledge about the software or the hardware of the said voice logger system.
29. Further even if the examination of the recording device is not insisted upon as prayed by the Ld PP, the fact that the investigating agency did not seek an opinion from the expert PW15 Deepak Tanwar about the non tampering of the CD in question, does not permit this court to rely upon the same. Admittedly the CFSL expert PW15 Deepak Kumar Tanwar, to whom the CD in question was sent for examination has nowhere in his report stated that he is of the opinion that the CD has C.C. No: 02/2015 Page No. 64 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 not been tampered with. Infact on a specific question by the defence in this regard, this expert has stated that he has not given any such opinion because it was not sought for by the CBI. A perusal of the forwarding letter of the CBI Ex.PW15/A confirms his deposition that the CBI had not sought any opinion with respect to the tampering of the CD and had only sought the opinion with respect to the matching of the voices in the recorded conversations with that of the sample voices of the accused persons. In the considered opinion of this court in view of such facts, the CD in question is inadmissible in evidence in view of the judicial dicta laid down by the Hon'ble Delhi High Court in the cases titled and reported as S.K. Saini & Anr. Vs CBI (2015) 3 JCC 2169, K. Lal Vs CBI 2013 (3) JCC 1637 (supra). In the said judgments it has been clearly laid down that where the cassette containing the recorded conversation is not examined by an expert for ruling out the possibility of tampering, the same cannot be admitted in evidence. C.C. No: 02/2015 Page No. 65 of 91
Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017
30. The other submission of Ld PP that the deposition and certificate tendered by PW5 M.C. Kashyap under section 65B of the Evidence Act are sufficient to hold that the CD has not been tampered with also cannot be accepted. In the considered opinion of this court the said Section deals with the admissibility of electronic records and not with its genuineness. The Hon'ble Supreme Court in Anvar P.V Vs P.K. Basheer & Ors. (2014) 10 Supreme Court Cases 473 (supra - a judgment relied upon by the Defence) has interalia held that a certificate under section 65B of the Evidence Act makes electronic records admissible as secondary evidence but that for its genuineness, resort will have to be made to Section 45A of the Evidence Act. In the considered opinion of this court it was for the investigating agency to seek an opinion from the CFSL expert about the non tampering of the CD in question and the mere submission of Ld PP that since PW5 had copied the calls in C.C. No: 02/2015 Page No. 66 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 separate folders in the CD, the same should be taken as sufficient to hold that the CD had not been tampered with, cannot be accepted in view of the judicial dicta laid down in S.K. Saini's and K. Lal's cases (supra) Even otherwise the inability of this witness in his crossexamination to satisfactorily explain the differences in the time duration (which in some cases is more than five minutes) of the calls reflected in his report Ex.PW.5/B and the duration of the calls mentioned in the call details record collected by the IO (D18 to D21) gives rise to a reasonable doubt about the authenticity of the CD in question. Though he did state that the differences in the time duration of the calls could be due to the difference in the time setting of the voice logger system and the system maintained by the mobile service providers, he could not explain how then the said difference was not uniform for all the calls. It will also be relevant to mention herein that in a case reported and titled as Dharambir Vs CBI 148 (2008) DLT 289 where the CBI was also similarly relying upon C.C. No: 02/2015 Page No. 67 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 intercepted mobile conversations through a voice logger machine, the hard disc as well as the CD was sent to a CFSL expert at Andhra Pradesh by the CBI for examination and certification that relevant intercepted telephone calls copied on the CDs were infact tallying with the original recordings of those calls in the hard disc and only thereafter was the CD containing intercepted calls relied upon as a piece of evidence - Ld PP has been unable to satisfy this court as to why the said exercise was not followed in the present case., more so when the judicial dicta referred to above makes it mandatory.
31. Thus in view of the discussion hereinabove, in particular the judicial dicta relied upon by the Defence this court is bound to hold that CD in question in the absence of being authenticated by an expert to be free from tampering cannot be considered as admissible evidence. Now in the absence of the two telephonic conversations being relied upon by the C.C. No: 02/2015 Page No. 68 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 prosecution to prove the alleged demand made on 20.5.2004 (in view of the fact the aforementioned calls have been held to be inadmissible, this court does not find it necessary to examine the remaining contentions of the Defence made with respect to the infirmities in the identification of the voices of the accused persons therein by the CFSL expert or the submissions made to contend that the said conversations, if held to be admissible, do not reveal that a demand of bribe was made by accused Uday Shankar), what remains is to be examined in this respect is the evidence produced by the prosecution to show that the accused Uday Shankar had made the said demand even at the HPCL petrol pump in question. According to the version put forward by the prosecution at the said petrol pump, in the presence of the CBI trap team, the accused Uday Shankar had called up the accused S.K. Gupta using the mobile of Naveen Jain and again reiterated his demand of Rs. 7 lacs. As per the depositions of PW13 Inspector R.G. Mishra, PW16 Rohit Kapoor and C.C. No: 02/2015 Page No. 69 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 one independent witness PW17 Ashish Mukherjee, two teams consisting of CBI officials including Rohit Kapoor, Inspector R.G. Mishra and two independent witnesses Ashish Mukherjee and Dale Ram had reached the HPCL petrol pump near Ashok Hotel Niti Marg, New Delhi at or around 12 p.m and a few minutes thereafter they had seen the accused Uday Shankar reaching the petrol pump in a Maruti Esteem car and a few minutes thereafter Naveen Jain accompanied by one Naresh Saini coming to the said petrol pump in a Toyota Qualis. All these three witnesses have interalia deposed that both Naveen Jain and accused Uday Shankar had talked to each other for sometime, whereafter Naveen Jain had given his mobile phone to accused Uday Shankar and then Uday Shankar had made two calls and while making the second call the accused Uday Shankar had handed back the mobile phone to Naveen Jain and during this time Naresh Saini was seen writing something on a piece of paper. They have further deposed that thereafter Naveen Jain and Naresh Saini went back to C.C. No: 02/2015 Page No. 70 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 the Qualis and accused Uday Shankar went back to his own vehicle and when the two said vehicles started to move away, they were intercepted by the CBI officials and after being confronted, accused Uday Shankar admitted that he had come to the petrol pump to take illegal gratification of Rs. 7 lacs from S.K. Gupta and that after speaking to S.K. Gupta, using the phone of Naveen Jain he had come to know that S.K. Gupta was tired as he had returned from abroad that morning itself and therefore could not come to the petrol pump for delivering the money and he therefore had told S.K. Gupta that he would be sending Naveen Jain to collect the money from his residence. It was also allegedly disclosed by accused Uday Shankar and Naveen Jain that S.K. Gupta had given the directions to his residential premises, which was noted down by Naresh Saini on a piece of paper.
32. On the other hand, PW10 Dale Ram, the other independent C.C. No: 02/2015 Page No. 71 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 witness who was also a member of the trap team has completely turned hostile and has not supported the version of the prosecution that accused Uday Shankar had made the aforementioned calls to S.K. Gupta before he was apprehended by the CBI officials. According to his deposition immediately after Uday Shankar and Naveen Jain reached the petrol pump in their separate vehicles, the CBI officials caught them and told Naveen Jain to make a call from his mobile on a number they gave him and ask the recipient of the call for some address. Depositions to the similar effect have also been made by Naveen Jain(PW 11) and Naresh Saini (PW 12) who have been examined as prosecution witnesses.
33. Now even if this court is of the opinion that it would been totally nonsensical for the CBI team to have immediately apprehended Udai Shankar and defeat the purpose of the trap and it is held that the witnesses PW 10, PW 11 and PW 12 are not to be believed completely C.C. No: 02/2015 Page No. 72 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 in respect of the aforementioned depositions, admittedly none of the witnesses PW 13, 16 and 17 have deposed that they could hear the conversation that Uday Shankar purportedly had with accused S.K. Gupta. Further the independent witness PW17 Ashish Mukherjee has also admitted that the disclosure made by accused Uday Shankar or Naveen Jain with respect to the contents of the said conversations were not made in his presence and he was infact told of the said disclosures by Inspector R.G. Mishra. In view of such facts there is no admissible evidence produced to prove the demand made by Uday Shankar at the HPCL Petrol Pump. As regards the contention of the prosecution that since the two telephone calls made from the petrol pump were also intercepted and the accused S.K. Gupta and Naveen Jain are not disputing their telephone numbers reflected in Ex.PW5/B, the RICR prepared by PW5, the said calls can be read in evidence, suffice is to state that the contents of the same as recorded in the CD in question, again cannot be C.C. No: 02/2015 Page No. 73 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 read in evidence in view of the fact that the said CD has been held to be inadmissible in evidence by this court.
34. Further clearly the deposition of the CBI officials themselves that the accused Uday Shankar and Naveen Jain had disclosed to them that Uday Shankar had again asked S.K. Gupta for the bribe amount and had told him that he is sending Naveen Jain to his residence to collect the bribe amount of Rs. 7 lacs, are inadmissible in evidence as per the provisions of Section 26 of the Evidence Act and the judicial dicta referred to by the Ld Defence counsels for the said purported disclosures were given whilst the accused Uday Shankar and Naveen Jain were effectively in the custody of the CBI officials. Ld PP Ms. Shashi has not disputed the said legal position at all, however her contention is that since the factum of change in venue of delivery of money was duly discovered and confirmed in consequence of the disclosures given, at the house of C.C. No: 02/2015 Page No. 74 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 accused S.K. Gupta, when he handed over Rs. 7 lacs to Naveen Jain, the said disclosures can be read in terms of Section 27 of the Evidence Act. She has further submitted that since the accused S.K. Gupta did hand over an amount of Rs. 7 lacs to Naveen Jain after confirming his identity from Sanjeev Kumar, it should also be presumed that the said handing over would have happened only in pursuance of the demand made by accused Uday Shankar. This court is afraid that the said contentions of the Ld PP also cannot be accepted for in the considered opinion of this court the said alleged act of accused S.K. Gupta has also not been proved beyond all reasonable doubt by the prosecution.
35. As per the version put forward by the prosecution PW10 Dale Ram, PW11 Naveen Jain and PW13 R.G. Mishra had entered into the house of accused S.K. Gupta and in their presence, the accused S.K. Gupta after telephonically confirming the identity of Naveen Jain from C.C. No: 02/2015 Page No. 75 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 accused Sanjeev Kumar, had handed over a polythene bag containing Rs. 7 lacs to Naveen Jain. Now apparently both Dale Ram and Naveen Jain have turned hostile and have not supported the version of the prosecution in this respect also. According to PW Dale Ram he had entered the house of accused S.K. Gupta not only with Naveen Jain and Inspector R.G. Mishra but with all the team members and immediately on entering the house of accused S.K. Gupta, the CBI officials started taking the search of the house and one of them asked S.K. Gupta and his wife to make a call somewhere and after the search was concluded Inspector R.G. Mishra handed over him a bag and told him that it contained money. He has further deposed that when the team of CBI officials of which he was a member, had reached the house of accused S.K. Gupta, some other CBI officials were already present at the said house and it was one of the said CBI officials who had opened the gate of the house of accused S.K. Gupta after Inspector R.G. Mishra had made a phone call. PW11 C.C. No: 02/2015 Page No. 76 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 Naveen Jain has also similarly deposed that he was forced by the CBI officials to accompany them to the house of accused S.K. Gupta and there Inspector R.G. Mishra made him to speak to accused Sanjeev Kumar telephonically and thereafter he was taken by some CBI officials to an office in Khan Market.
36. Though no doubt it can be accepted that Naveen Jain being known to the accused persons has deliberately not supported the case of the prosecution being a friend of accused Sanjeev Kumar, the same cannot be stated for the independent witness Dale Ram. Even if for the sake of arguments the contention of Ld PP that since the other independent witness Ashish Mukherjee has supported the version of the prosecution, it should be assumed that Dale Ram has been won over by the accused (though admittedly not even a suggestion to this effect has been put to him), it is to be noted that as per the prosecution itself the bag C.C. No: 02/2015 Page No. 77 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 containing Rs. 7 lacs was not handed over by accused S.K Gupta to Naveen Jain in the presence of Ashish Mukherjee. His deposition in this respect is only to the effect that he came to know that the bag was containing currency notes only after he alongwith the CBI officials had entered the house of accused S.K. Gupta and that thereafter he was told in the evening hours to count the notes that were contained therein. He has nowhere deposed that PW Dale Ram or R.G. Mishra on coming out of the house of accused S.K. Gupta had narrated in his presence, all that had happened therein. In fact the deposition of Ashish Mukerjee also belies the depositions of PW16 Rohit Kapoor and PW13 Inspector R.G.Mishra, (the third witness who has assertedly deposed that accused S.K.Gupta had handed over the bag containing Rs. 7 lacs, in his presence to Naveen Jain), in very material respects. The said two witnesses in support of their version of the events that took place at the residence of accused S. K. Gupta have relied upon two memos namely Ex.PW10/B C.C. No: 02/2015 Page No. 78 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 and Ex.PW10/C. As per the deposition of PW16 Rohit Kapoor, the memo Ex.PW10/B was prepared on his dictation by SI N.K. Mishra after Naveen Jain, R.G. Mishra and Dale Ram had come out of the house of accused S.K. Gupta and had informed the other members of the CBI team that accused S.K.Gupta had handed over a bag containing Rs. 7 lacs to Naveen Jain. As per the deposition of this witness the said memo recorded all the proceedings that had happened since the time the CBI teams had reached the petrol pump till the time the persons Naveen Jain, Dale Ram and Inspector R.G. Mishra had come out of the house of accused S.K. Gupta. A perusal of this memo shows that it is recorded therein that the aforementioned three persons had come out of the house of accused S.K. Gupta at about 14:25 hours and that the memo with respect to proceedings that transpired inside the house of S.K. Gupta at the time of transaction is being prepared separately by Inspector R.G. Mishra as memo no. 2. Now Inspector R.G. Mishra, PW13 in his C.C. No: 02/2015 Page No. 79 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 deposition has deposed that he had prepared this memo no. 2, Ex.PW10/C. A perusal of his memo reveals that it is interalia recorded therein that after the accused S.K. Gupta had handed over a polythene bag containing Rs. 7 lacs to Naveen Jain, Inspector R.G. Mishra, Naveen Jain and Dale Ram had come outside the house of S.K. Gupta and had informed the other members of the team about the transaction of bribe money and the amount was again counted by them and was found to be Rs. 7 lacs and this bribe amount was seized vide this very memo, which was concluded at 14:40 hours. PW13 has further deposed that this memo was prepared inside the house of S.K. Gupta and that the currency notes were not separately counted but only the bundles were counted. In other words as per the CBI officials, PW13 and PW16 the counting of the currency notes had taken place inside the house of S.K. Gupta between 14:25 and 14:40 hours and the said counting had not taken more than 15 minutes and both the memos Ex.PW10/B and Ex.PW10/C had C.C. No: 02/2015 Page No. 80 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 been concluded by 14:40 hours. Now contrary to the depositions of PW 16 and PW13, PW17 Ashish Mukherjee has interalia deposed that the memo Ex.PW10/C was prepared in the house of accused S.K. Gupta during night hours and that it took about half an hour in preparing the said memo and that it took about one and a half hours to count all the currency notes contained in a bag which was told to him had been handed over to Naveen Jain by accused S.K. Gupta. Admittedly during the recording of deposition of PW13, on request of the Ld Defence counsels, the currency notes were got counted again and it took more than one hour for PW13 to count the said currency notes - in such facts it is being rightly contended on behalf of the defence that both PW13 and PW16, the CBI officials have not only deposed falsely in court but even have fabricated the contents of memos Ex.PW10/A and Ex.PW10/B. Though Ld PP had sought to contend that PW13 R.G. Mishra in his examination C.C. No: 02/2015 Page No. 81 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 in chief has explained that the currency notes given to Naveen Jain were not at all counted and it was only the bundles of the currency notes which were counted and that since 8 bundles of currency notes were in the denomination of Rs. 500/ and 30 bundles of currency notes were in the denomination of Rs. 100/, the amount of Rs. 7 lacs could have been arrived at in 15 minutes, she was unable to explain how without counting the currency notes did the CBI officials come to know how many currency notes were contained in each of the bundles to arrive at the figure of Rs. 7 lacs and why was PW17 not supporting the deposition of PW13 and PW16 in this respect. It is also very relevant to point out at this stage that though per the depositions of PW13 and PW16 and the memos Ex.PW10/B and Ex.PW10/C, the accused S.K. Gupta had handed over the bag containing the bribe amount of Rs. 7 lacs before 14:25 hours and that too after telephonically confirming the identity of Naveen Jain from accused Sanjeev Kumar, the own document of the C.C. No: 02/2015 Page No. 82 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 prosecution, Ex.PW5/B, the RICR prepared by PW5 M.C. Kashyap reveals the time of the telephone call made by accused S.K. Gupta to Naveen Jain as 14:40 hours and the Ld PP has been at pains to explain the said inconsistency. It is therefore apparent that the memos Ex.PW10/B and Ex.PW10/C were not properly recorded and PW13 and PW16 have deposed falsely not only with respect to the counting of the currency notes but infact with respect to the alleged handing over of the money by S.K.Gupta to Naveen Jain after telephonically confirming his identity from accused Sanjeev Kumar.
37. Apart from the above what this court finds appalling is that the bag in which the currency notes of Rs. 7 lacs was allegedly handed over by accused S.K. Gupta to Naveen Jain has not been produced at all during trial. Despite the defence counsels questioning each of the CBI officials about the said bag, no explanation is forthcoming about where C.C. No: 02/2015 Page No. 83 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 the said bag has disappeared - the witnesses were even unable to tell the colour of the said bag. In the considered opinion of this court if the investigating agency had indeed seized a bag containing Rs. 7 lacs from Naveen Jain, it was a part of case property and the prosecution was bound to have produced it during trial. On their failure to do so, the defence is absolutely right in contending that such a bag was never handed over by accused S.K. Gupta to Naveen Jain and that the CBI officials had seized an amount of Rs. 10,45,000/ which was lying at the residence of S.K. Gupta for his own business purposes and out of the said amount, Rs. 7 lacs was falsely shown to have been paid by accused S.K. Gupta to Naveen Jain. As narrated herein above, the accused S.K. Gupta has, in his statement tendered under section 313 Cr.P.C, taken a stand that during his visit to Dubai, the cash of Rs. 10,45,000/ collected at his business premises was kept at his residence by his father and brother and that the CBI officials after searching his house had seized the said amount despite C.C. No: 02/2015 Page No. 84 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 him informing them that the said cash had nothing to do with the accused Uday Shankar. This accused has also produced his Chartered Accountant and his brother to prove the said defence. Though Ld PP may be right in contending that the depositions of these two witnesses does not prove beyond all reasonable doubt the defence being taken by the accused, it is to be remembered that it is the prosecution which needs to prove its case beyond all reasonable doubt and by not producing the bag which allegedly was handed over by accused S.K. Gupta to Naveen Jain, it is the prosecution which has failed in its duty. The accused S.K. Gupta was only to show that his defence is probable and in the considered opinion of this court the said accused has been able to do so not only by producing witnesses in his defence but also effectively crossexamining the prosecution witnesses in respect of the recovery of a total amount of Rs.10,45,000/ from his residence. Though admittedly the chargesheet does not even mention a word about the search of the house of accused, C.C. No: 02/2015 Page No. 85 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 S.K. Gupta and it only mentions about the amount of Rs. 7 lacs was recovered from the bag that accused S.K.Gupta had handed over to Naveen Jain, during evidence a search list Ex.PW10/D has been deposed about by the prosecution witnesses. As per this search list an amount of Rs. 3,45,000/ is shown to have been recovered separately from the bed room on the first floor of the house of accused S.K. Gupta. However none of the witnesses who as per the prosecution were present during the said search have been able to authenticate the said contents of Ex. PW10/D. Shockingly PW16 Rohit Kapoor, the leader of the search team does not even remember whether or not any such amount was recovered from the house of accused S.K. Gupta. Similarly PW13 Inspector R.G. Mishra, also initially deposed that he does not remember if any cash amount was recovered from the house of accused S.K.Gupta. Though on being shown the search list Ex.PW10/D, he later deposed that an amount of Rs. 3,45,000/ was found in his presence from the bed room on the first floor C.C. No: 02/2015 Page No. 86 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 of the house of the accused, he was unable to stand the test of cross examination in this respect in as much he even failed to answer as to how many rooms were there on the first floor of the house of accused S.K. Gupta and at what time of the search was the said amount recovered and from which specific place. He also has admitted that none of the items seized during the purported search was sealed at the spot. The third witness produced in this respect namely PW17 also appears to have no clue from where this cash was recovered and whether or not it was counted or sealed at all. Though in his examination in chief he has deposed that about Rs. 3.5 lacs was recovered from the house of accused S.K. Gupta in his presence, in his crossexamination initially he evaded to answer the question as to from where specifically was the said cash recovered and merely deposed that he had not noticed the exact place from which the said cash was recovered. However on being further crossexamined he admitted that since he was sitting in the drawing room C.C. No: 02/2015 Page No. 87 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 during the entire search proceedings, he cannot state whether the said cash was recovered from the lockup, bed box or the almirah lying in the bed room of the accused S.K. Gupta. In other words this cash amount was not recovered in the presence of this witness at all and it is clear that he has deposed falsely in this respect in his examinationinchief - in such facts when the investigating agency has failed to produce the bag which the accused S.K. Gupta had allegedly handed over to Naveen Jain and when the prosecution witnesses have been unable to stand the test of crossexamination, this court is of the considered opinion that the version of the prosecution with respect to the events that transpired at the house of accused S.K. Gupta cannot be stated to have been proved beyond all reasonable doubt. Though this court agrees with the Ld PP that the prosecution witnesses are not required to have a photographic memory and remember all the minute details of the incident that took place many years ago and therefore for the said reason this court has not even C.C. No: 02/2015 Page No. 88 of 91 Judgment in the matter of:-CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 attached much importance to the minor contradictions/ inconsistencies in the depositions of the aforementioned witnesses with respect to some other issues for example, the time of reaching the petrol pump, the time of reaching the residence of S.K. Gupta, the place where the vehicles were exactly parked, the apparent ante dating of the FIR, the lack of clarity with respect to the basis on which the FIR was registered - secret informer or intercepted conversations source etc., the contradictions discussed herein above according to this court are very material and are very germane to the case put forward by the prosecution and therefore cannot be at all ignored.
38. In a judgment pronounced by the Hon'ble Delhi High Court in Gurcharan Singh Vs State 1993 (2) Crimes 229, it has been clearly held by the Hon'ble High Court that a condition precedent for the prosecution to prove the guilt of the accused is to first prove that its case C.C. No: 02/2015 Page No. 89 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 is a true narration of facts and that it did happen in the way and manner as it is asserted to have taken place. The Hon'ble Delhi High Court has categorically held that in case the prosecution fails in this primary duty, the courts need not go any further and need not make any more inquiry in as much as the said case is liable to be dismissed on this short ground alone. The Hon'ble Supreme Court also, in its judgment pronounced in case titled as Premchand Vs Union of India reported in 1981 SCC (Crl.) 239, has insisted that in the administration of criminal law, the means that the prosecution agency adopts to secure the conviction of a criminal must also be a good as the ends.
39. In the considered opinion of the Court the discussion of the evidence in the preceding paragraphs makes it clear that the prosecution in the present case also failed to prove beyond reasonable doubt that its case is a true narration of facts as they took place at the residence of C.C. No: 02/2015 Page No. 90 of 91 Judgment in the matter of:-
CC No. 02/2015
(C.B.I. Vs. Uday Shankar & Ors.) Dated : 25.04.2017 accused S.K. Gupta and therefore their case in this has also to be held to have failed. In conclusion this court therefore holds that neither the intercepted telephonic conversations nor the proceedings that purportedly took place at the residence of accused S.K. Gupta have been proved beyond reasonable doubt by the prosecution and therefore all the three accused persons will have to be granted benefit of doubt. As such, this court therefore, hereby holds that the prosecution has been unable to prove its case against the accused persons beyond all reasonable doubt and therefore all of them are hereby acquitted of the offences that they have been charged with.
Announced in the Open Court On the 25.04.2017 (ANU GROVER BALIGA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.
C.C. No: 02/2015 Page No. 91 of 91