Delhi District Court
Cbi vs . Sushanta Mukherjee & Ors. Page No. 1 Of ... on 7 September, 2013
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IN THE COURT OF MS. POONAM A. BAMBA:
SPECIAL JUDGE (PC ACT) : CBI - 03 :
NEW DELHI DISTRICT : PATIALA HOUSE COURT :
NEW DELHI
In re :
CC No. 30/11
Case ID No. 02403R0408362009
RC No. 15A/2008/CBI/ACB/ND
U/s 120B IPC r/w S. 7 of P. C. Act
STATE (CBI)
VS
1. Sushanta Mukherjee
S/o Late Sh. N. N. Mukherjee
R/o 28-B, DDA Flats, Phase-I,
Masjid Moth Near Chirag Delhi Fly Over
New Delhi -110048.
2. Amrik Singh
S/o Late Sh. Sher Singh
R/o J-4, Malka Ganj,
Delhi-110007.
Date on which charge sheet was filed - 08.12.2009
Date on which charges were framed - 16.11.2011
Date on which arguments concluded - 31.08.2013
Date on which judgment pronounced - 07.09.2013
APPEARANCES:-
Sh. S. C. Sharma, Ld. PP for the State (CBI).
Sh. Sunil Satyarthi, Ld. Counsel for accused no.1.
Sh. Dinesh Sharma, Ld. Counsel for accused no. 2.
CBI Vs. Sushanta Mukherjee & Ors. Page No. 1 of 174
CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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07.09.2013
JUDGMENT
1.0 This case was registered on 31.03.2008 on source information. Accused Sushanta Mukherjee (A-1) retired as Chief Manager of DSIIDC. After his retirement, he was engaged as full time Consultant and Advisor and was designated as OSD, in Indian Made Foreign Liquor (IMFL) Division of DSIIDC for a period of one year w.e.f. 01.06.2006 to 31.05.2007; his tenure was further extended up to 31.12.2007; A-1 was assigned the duties of policy advisor, procedure, monitoring of IMFL division and CWC (Community Works Centre) Division; all inputs regarding the issue of supply of orders for procurement of liquor and all other files pertaining to liquor division and those pertaining to administration, transfer/ postings of staff of IMFL Division, inspections, etc., used to be routed through him. Accused Amrik Singh was working as Assistant Manager (Enforcement) in Recovery Division and OMB Division of DSIIDC since July, 2007. It is alleged that A-2 was very close to A-1 and used to flaunt his influence boasting that he could get any job of IMFL division done through A-1. He was the front man of A-1. 1.1 During investigation, pursuant to the orders of CBI Vs. Sushanta Mukherjee & Ors. Page No. 2 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND -3- Secretary (Home), Govt. of India, the mobile / telephone numbers of both the accused persons were put under surveillance by the Special Unit of CBI, Delhi; and as many as 211 telephone calls were intercepted and recorded with effect from 06.09.2007 to 31.12.2007 involving conversation of accused persons with others; details of 211 calls allegedly involving conversations between the accused persons and/ or either of the accused persons with employees of DSIIDC or Distributors of Liquor or their representatives, etc., are provided by way of a chart in a tabular form on pages 6 to 13 of the charge-sheet.
1.2 It is alleged that examination of such intercepted calls revealed that the accused persons were indulging in corrupt practices for seeking illegal gratification from employees/ In-charges of DSIIDC liquor shops for getting them transferred/ posted at places of their choice; accused were also forcibly obtaining illegal gratification from In-charge/ staff of DSIIDC shops under the threat of their transfers to distant places, unfair inspections and other administrative troubles. CBI Vs. Sushanta Mukherjee & Ors. Page No. 3 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND -4- 1.3 Investigation further revealed that placing of supply orders of liquor and beer in IMFL division besides files pertaining to payments to distributors / distillers, was dealt with and recommended by A-1; and that both the accused persons in league with each other had been indulging in corrupt practices and obtaining illegal gratification in cash and kind from various distributors/ distillers of liquor for placing supply orders as well as for promotion of their liquor brands; they obtained illegal gratification even by harassing them/ threatening to delay their payments; money was mostly being collected in denomination of Rs.1000/- notes. 2.0 On completion of investigation and after obtaining sanction for prosecution against the public servant A-2 Amrik Singh as per Section 19 of The Prevention of Corruption Act, 1988 (PC Act), the charge sheet was filed under Section 120B IPC read with Section of 7 of PC Act and substantive offence punishable under Section 7 of PC Act. No sanction was required against A-1, he having already retired.
3.0 Ld. Predecessor Court vide order dated 29.10.2011, CBI Vs. Sushanta Mukherjee & Ors. Page No. 4 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND -5- charged the accused persons u/Sec. 120B IPC for entering into criminal conspiracy. They are also charged u/Sec. 7 read with Sec. 13 (1) (a) r/w 13 (2) of PC Act and 120B IPC. Both the accused persons are further charged for the offence punishable u/Sec. 11 PC Act r/w Sec. 120B IPC. The accused persons are further charged individually for offences punishable under Section 7, 11 and 13 (1) (a) r/w Sec. 13 (2) of the PC Act. The charge against the accused persons was framed accordingly on 16.11.2011. Needless to mention that both the accused persons pleaded not guilty and claimed trial.
4.0 In support of its case, the CBI examined 61 witnesses. These witnesses can be divided into six categories, viz., officials of DSIIDC, Distillers/ Distributors/ their representatives, Nodal officers/ other officials of mobile phone companies, independent witnesses, expert witness/ scientific officer and witnesses from CBI including IO. 5.0 Statement of accused persons u/Sec. 313 Cr.PC was recorded on 26.03.2013. Both the accused denied the incriminating facts/ evidence put to them and stated that they CBI Vs. Sushanta Mukherjee & Ors. Page No. 5 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND -6- are innocent and are victims of unfair and discriminatory investigation. They chose not to lead any defence evidence. 6.0 I have heard the Sh. S. C. Sharma, Ld PP for the State/ CBI, Sh. Sunil Satyarthi, Ld. Counsel for A-1 and Sh. Dinesh Sharma, Ld. Counsel for A-2 at length and have perused the record carefully.
7.0 It was argued by Ld. PP that the accused persons in league with each other demanded illegal gratification in cash or kind from employees posted at liquor outlets for their transfer/ posting at the place of their choice and even under threat of transfer to inconvenient place; and also from dealers/ suppliers of liquor to DSIIDC liquor vends for expediting clearance of their bills and under threat of stopping purchases from them/ delaying payments.
7.1 Ld. PP further argued that the intercepted calls between the accused persons and the witnesses/ employees of DSIIDC and the dealers/ suppliers of liquor have been duly proved by these witnesses. Although, most of the witnesses CBI Vs. Sushanta Mukherjee & Ors. Page No. 6 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND -7- turned hostile, but they have identified their and the accused persons' voice in such calls; they have proved the conversations and the respective transcripts of such conversations/ intercepted calls. It was also submitted that some of the conversations between accused persons and the witnesses are self explanatory and the demand for illegal gratification in cash or kind for transfer/ stopping transfer of the employees/ for placing of orders with distributors/ suppliers of the liquor and receipt of the same, is evident. The allegations against the accused persons have been proved beyond reasonable doubt.
8.0 On the other hand, Ld. counsel of A-1 argued that A-1 was simply a Consultant. Power of transfer/ posting of employees of DSIIDC vested in Executive Director (ED)/ Managing Director (MD); A-1 was only a recommending authority; final decision was taken by MD. Therefore, there was no occasion for A-1 to favour anyone or to threaten employees to get them transferred to inconvenient places; moreover, there was a well defined transfer policy in DSIIDC and A-1 could not have influenced the transfers/ postings. It was also argued that CBI Vs. Sushanta Mukherjee & Ors. Page No. 7 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND -8- there was even well defined policy for procurement of liquor from various dealers/ suppliers; requirement of various outlets was reported every day, which was entered in computer; such data/ requirement was even available on website. Therefore, A-1 could not have threatened any dealer/ supplier with stopping supplies of their brands, in case demand of illegal gratification was not fulfilled.
8.1 Ld. counsel for both the accused persons also pleaded that State/ CBI has failed to place on record any substantive piece of evidence of demand of illegal gratification by the accused persons. CBI has miserably failed to prove the allegations against the accused persons; all the witnesses turned hostile and nothing material could be extracted from them by Ld. PP even in their cross-examination. Ld. counsel further submitted that even if the recorded conversations are considered to be self explanatory, as pleaded by Ld. PP, still the said conversations have no evidentiary value. It was argued that the intercepted calls/ conversations between the accused persons and the witnesses, no doubt are admissible in evidence; but, the same is not a substantive piece of evidence; CBI Vs. Sushanta Mukherjee & Ors. Page No. 8 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND -9- such, tape recorded conversations/ their transcripts can be used only to corroborate or contradict the witness's versions before the court. It was further contended that as none of the prosecution witnesses have deposed against the accused persons, their recorded conversations with the accused persons are of no consequence. Ld. counsel placed reliance upon judgments of the Hon'ble Supreme Court in R. M. Malkani Vs. State of Maharashtra, AIR 1973 SC 157, N. Sri Rama Reddy & Ors. Vs. Sh. V. V. Giri, AIR 1971 SC 1162 and Mahabir Prasad Verma Vs. Dr. Surinder Kaur, AIR 1982 SC 1043, in support. 8.2 It was further argued by Ld. defence counsel for both the accused persons that even the statement of witnesses Suresh Nand Jual, D. K. Sharma, Rajbir and Prem Kumar Kalra, u/ Sec. 164 Cr.PC, are of no consequence, as all the witnesses denied any demand of bribe by the accused persons, before the court.
8.3 Ld. counsel for A-2 also argued that the call details between A-2 and some of the witnesses during the course of the trial also do not constitute any evidence; the accused no. 2 CBI Vs. Sushanta Mukherjee & Ors. Page No. 9 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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was and is still working in the department and nothing incriminating can be inferred against him just because he was in touch with the witnesses/ employees of DSIIDC during trial. It was also submitted that in view of A-2 being in touch with the witnesses during trial, his bail was cancelled vide order dated 11.10.2012 and he was remanded to judicial custody. But, the witnesses examined even thereafter did not support prosecution version.
9.0 In rebuttal, Ld. PP submitted that once the witnesses admitted the conversation between them and the accused persons and also narrated the same and its context, before the court, the said conversation became their statement before this court. Therefore, the judgments as relied upon by the Ld. defence counsel have no applicability to the present case.
10.0 Let me now consider the evidence which has come on record, in the light of above arguments. It is not in dispute that after his retirement, A-1 was re-appointed as a full time Consultant, OSD (IMFL) for a period of one year by DSIIDC on CBI Vs. Sushanta Mukherjee & Ors. Page No. 10 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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contract basis w.e.f. 01.06.2006 till 31.05.2007, vide order dated 31.05.2006 Ex.PW19/A-1 (also given mark - Ex.PW2/C). Later, vide Ex.PW19/A-2 i.e. order dated 03.07.2007 (wrongly typed as 04.07.2007 in the testimony of PW-19), the said contract was further extended for a period of another six months i.e. w.e.f. 01.06.2007 to 31.12.2007. These facts have also come in the testimony of PW1 Raj Kumar Khanna and PW-19 V. K. Gupta, who were Chief Manager (Personnel) and Sr. Manager (Personnel), DSIIDC, respectively, during the relevant period.
10.1 It is also not in dispute that A-2 was posted as Assistant Manager (Enforcement), in Overseas Manpower Bureau (OMB) and Recovery Division during July 2007 to 31.12.2007. The same has also come in the testimony of PW-1 and PW-19. PW-19 has deposed about the postings of A-2 from time to time and that A-2's designation earlier was Enforcement Executive, which was changed to Assistant Manager (Enforcement). Both PW-19 and PW-1, have deposed that vide Office Order dated 29.08.2007 Ex.PW1/K, A-2 was posted as Assistant Manager (Enforcement) in OMB Division in addition to CBI Vs. Sushanta Mukherjee & Ors. Page No. 11 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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his existing duties of Recovery Division. 11.0 With regard to the nature of duties of both the accused persons, PW-19 Sh. V. K. Gupta deposed that powers and duties of A-1 were defined in letter dated 20.06.2006, which is Ex.PW19/B (D-9). As per Ex.PW19/B, A-1 was allocated the work of - "Advisor Policy, Procedure, Monitoring of IMFL & CWC Division". PW-19 as well as PW-2 have also deposed that vide office note dated 22.06.2006 and Office Order dated 22.06.2006, issued pursuant to the said note, by the then MD, Jalaj Srivastava, which is Ex.PW19/B-1 (original Office Order is exhibited as Ex.PW2/B), it was directed that inputs from EDP Division should be sent to DM (Liquor), who would make his recommendations to the OSD (Liquor) i.e. A-1/ ED/ MD; that is, all such files should be routed through A-1. 11.1 PW-1 as well as PW-19 have also deposed that transfer of employees within the Division was within the domain of Chief Manager/ Head of the Division/ Executive Director. Whereas, transfer from one Division to another was handled by Personnel Division and put up for approval of ED/MD. It has also CBI Vs. Sushanta Mukherjee & Ors. Page No. 12 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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come in the testimonies of PW-2 and PW-19 that transfer/ posting of employees of IMFL Division was under the control of A-1. It is noted that PW-12 Praveen Rai in his cross-examination by A-1 stated that there was no fixed criteria about posting of an employee at any particular liquor outlet of DSIIDC. 11.1.1 PW-2 has deposed that during his tenure in 2006-2007 there were approximately 92-93 retail outlets of IMFL/ country liquor around Delhi; 80% of the staff in these outlets were the employees of DSIIDC; A-1 was the Administrative head regarding transfers and posting of the employees posted at such outlets; all the employees posted in the IMFL Division were under the administrative control of A-1 for matters of transfers and postings besides functioning of IMFL Division; and that recommendations of A-1 were almost final. PW-19 also has categorically denied in his cross-examination on behalf of A-1 that A-1 had no administrative or financial powers.
11.1.2 PW-2 has further deposed that vide order dated CBI Vs. Sushanta Mukherjee & Ors. Page No. 13 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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12.07.2007, Ex.PW2/A (D-8 C-95), the then MD directed that all the files to ED/ MD by DM (IMFL) should be put up through Advisor (IMFL) i.e. A-1. It is seen that vide this note, Ex.PW2/A, the MD clarified and directed that order dated 22.06.2006 of ex Managing Director would continue to prevail and that, "the files should be submitted to ED/ MD by DM (IMFL) through Advisor (IMFL)" i.e. A-1.
11.2 Much emphasis was laid by Ld. counsel for A-1 that CBI's own witnesses i.e., PW-1 Raj Kumar Khanna as well as PW-12 Praveen Rai have admitted in their cross-examination that A-1 only had the power of recommendations for transfer/ posting/ deployment of employees in IMFL Division; and the final authority for effecting such transfer/ deployment was vested with the ED/MD of DSIIDC. Same is not in dispute. But, PW-2 has also stated that A-1's recommendations were almost final. PW-2 even demonstrated few cases where A-1's recommendations for transfer/ posting were accepted by Managing Director. PW-2 deposed that vide note dated 23.11.2007-N/60, in file Ex.PW2/D, the transfer and posting of Nathu Ram, D. K. Gautam, AG (II) and Parveen Rai, Manager, CBI Vs. Sushanta Mukherjee & Ors. Page No. 14 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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was proposed vide note-sheet Ex.PW2/E; the said file was routed through A-1 and bears a detailed note dated 26.11.2007, in the hand-writing of A-1, which is Ex.PW2/F; the said note/ transfer/ postings of the concerned employees was approved by the MD vide note dated 04.12.2007, which is Ex.PW2/G. Even PW-3 has deposed that proposal of transfer and posting of Yashwant Singh, AG-I, from Rajendra Place wine shop to Azad Pur wine shop was put up by Vimal Malhotra vide note dated 14.08.2007 - N/58/59, Ex.PW3/A, to A-1. A-1 had forwarded the said proposal to ED/ MD vide his note Ex.PW3/A-1; and the same was approved by the MD vide note dated 24.08.2007 Ex.PW3/A-2.
11.3 Regarding requisition of liquor, no doubt there was a system in place. But, PW-3 has deposed that requisition of any ad-hoc requirement can be made, subject to the satisfaction of competent authority. Further, it has come in the testimony of PW-2 that A-1 had control over placing of orders to various distributors for supply of liquor to DSIIDC outlets. PW-19 has deposed that all the files regarding requisition of liquor by each of such retail outlets used to be routed for final approval CBI Vs. Sushanta Mukherjee & Ors. Page No. 15 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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through A-1 and so also the details regarding sales, turn-overs; the orders for requisitioning liquor from various distributors used to be put up for approval before A-1 and which were then processed further and put up to the higher authorities; the recommendations of A-1 used to be almost final regarding the matters entrusted to him. PW-2 has stood by the same in his cross-examination by A-1 and denied that A-1 had no powers and that such powers were vested with ED/ MD alone. Even, PW-27 Amarjeet Singh, Deputy Manager, M/s Radico Khetan Ltd., which was supplying liquor to DSIIDC vends and PW-28 Arpan Sood, Power of Attorney Holder/ distributor for M/s Rajasthan Liquor Pvt. Ltd., have deposed that although there was a system of procurement (of liquor) in place, but the accused persons had a say in the procurement of liquor of their company.
11.3.1 Even in the cross-examination of PW-13 Suresh Nand Juyal, In-chage, Wine Shop, Shahdara, by A-1, it has come out that the requirement of an Outlet used to be sent and after scrutiny, the said demand for supply of liquor used to be placed before A-1 for his approval. Although, PW-13 admitted that the CBI Vs. Sushanta Mukherjee & Ors. Page No. 16 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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matter used to be placed before MD for his approval. But, the fact that A-1 had a role in the same and had a say in all such matters, is borne out from his and above witnesses' testimony. 11.4 From the above evidence, it is established that A-1 had an effective role in transfer/ posting of staff of IMFL Division/ liquor vends; and also in placing of order for requisitioning liquor from distributors/ dealers/ suppliers etc. and release of payments for the same etc. 12.0 Let me now examine whether A-1 & A-2 demanded illegal gratification in cash or kind from the employees of DSIIDC/ dealers/ distributors/ suppliers of liquor to DSIIDC, for showing favour/ disfavour by misusing/ abusing their official position. Ld. defence counsel has argued that CBI has utterly failed to prove the allegations; tape recorded conversations relied upon by prosecution, are of no consequence, as none of the witnesses have supported the CBI case. 12.1 It may be mentioned at the outset, that the voices of the witnesses and the accused persons in the intercepted CBI Vs. Sushanta Mukherjee & Ors. Page No. 17 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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calls/ audio recording thereof; and the contents of conversations between them, have not been disputed by the accused persons in view of the suggestion made by them (accused persons) to the Investigating Officer (IO)/ PW-61 in cross-examination. It was suggested by A-1 himself to PW-61/ IO, in his cross-examination that the conversations involving accused persons as relied upon by prosecution were with regard to their official transactions and made during the ordinary course of business. Further from the suggestion made to PW-61/ IO in cross-examination on behalf of A-2 also, it is evident that even A-2 has admitted the conversations between him and the employees of DSIIDC/ dealers/ distributors, etc. It was suggested to IO on behalf of A-2 that more than 1000 calls were recorded but he has deliberately concealed the remaining calls; and had all the recorded calls were placed on record, same would have revealed the official context of the conversations recorded by CBI and would have explained 211 calls, as relied upon by the prosecution. 12.2 Further, even PW-57, Sh. Deepak Kumar Tanwar, Senior Scientific Officer, CFSL who examined the voices CBI Vs. Sushanta Mukherjee & Ors. Page No. 18 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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recorded in 211 audio calls and compared them with sample voices of accused person and witnesses, has also proved his report Ex.PW57/A. He has deposed that the questioned voices of witnesses/ accused persons in the calls recorded in CD Mark Ex.Q1 are similar to their respective sample voices, in respect of their linguistic and phonetic features; they are similar in respect of their formant frequencies distribution, intonation pattern, number of formants and other general visual features invoice grams; and that the questioned voices are the probable voices of respective accused persons and the witnesses. PW-57 also deposed that no pause, discontinuity etc. could be detected in the recorded conversations and specimen voice recordings, on laboratory examination of CDs Mark Ex.Q1 and S1 to S3, S5 to S36. It may be mentioned that nothing worthwhile to the contrary could be extracted in PW-57's cross- examination by the accused persons.
12.2.1 Further, A-1 did not dispute PW-57's report - Ex.PW57/A, when put to him at the time of recording of his statement u/Sec. 313 Cr.PC. He simply stated that "I do not know".
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12.3 In view of the above, the contents of conversations in 211 calls and voices of both the accused persons therein are not in dispute. It may also be mentioned that even all the witnesses (except PW-40) identified their respective voices and the voices of the respective accused persons in such conversations. The witnesses have stood by their version in cross-examination. All the witnesses (except PW-40) also admitted contents thereof and their transcripts; and that the respective transcripts were signed by them after hearing the conversation, when the same were played before them by CBI. It is noted that even the Ld. Predecessor Court had recorded its observations in the testimony of respective witnesses that the recorded conversations (as played in the Court during examination of the witnesses) conform to the transcripts on record.
12.4 Let me now deal with learned defence counsel's argument that the tape recorded conversations/ their transcripts are not a substantive piece of evidence and same could be used by the prosecution only to corroborate or contradict the witnesses. As all the prosecution witnesses CBI Vs. Sushanta Mukherjee & Ors. Page No. 20 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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turned hostile, such tape recorded conversation/ their transcripts are of no help to CBI.
12.5 Needless to mention that the testimony of a witness cannot be thrown away lock, stock and barrel merely because the witness has turned hostile. The extent to which the testimony inspires confidence, can very well be taken into consideration. Let me now deal with the case law relied upon by learned defence counsel. It may be mentioned that the Hon'ble Supreme Court in Sri Rama Reddy's case (supra) and R.M. Malkani's case (supra) mainly dealt with the admissibility in evidence, of the tape recorded conversation. Hon'ble Court in Sri Rama Reddy's case (supra) even made a specific observation in this regard, which reads as under:-
"2 ....the tape recorded conversation could be admitted in evidence. But we make it clear that we have dealt with only the question regarding the admissibility in evidence of the tape recorded conversation, which is distinct and separate from the weight to be given to such evidence which question will be dealt with in the main judgment to be delivered in the election petitions".
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12.5.1 It would however be useful to refer to other observations made by the Constitutional Bench of the Hon'ble Supreme Court in N. Sri Rama Reddy & Ors. (supra) in Paras-12, 13 and 19:
"12. We will now refer to the case law on the subject. In Hopes v. H. M. Advocate, (1960) Scots Law Times 264 a tape-recorded conversation which took place between a complainant and a blackmailer was played before the jury and sought to be put in evidence by a police officer who had listened to the conversation as it was transmitted through the loudspeaker. Objections were raised to the admissibility of the said evidence.
......
13. .........
From the above decision it is apparent that the tape itself is primary and direct evidence admissible as to what has been said and picked up by the recorder. ............
19. In Pratap Singh's case, (1964) 4 SCR 733 = (AIR 1964 SC 72) it has been held that rendering of a tape-recorded conversation can be legal evidence by way of corroborating the statement of a person who deposes that the other speaker and he carried on the CBI Vs. Sushanta Mukherjee & Ors. Page No. 22 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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conversation and even of the statement of a person who may depose that he overheard the conversation between the two persons and what they actually stated had been tape- recorded that weight to be given to such evidence will depend on the other facts which may be established in a particular case."
12.5.2 Thus, the tape itself is a primary and direct evidence of what has been said and recorded and weight to be given to such evidence will depend on the facts as established in a particular case.
12.6 In R. M. Malkani's case (supra), the Hon'ble Apex Court while reiterating the views of the Hon'ble Court in Sri Rama Reddy's case (supra) observed as under :
"23. Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape-record. A contemporaneous tape-record of a relevant conversation is a relevant fact that is admissible under Section 8 of the Evidence Act. It CBI Vs. Sushanta Mukherjee & Ors. Page No. 23 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act. ......
.......
27. When a Court permits a tape recording to be played over it is acting on real evidence if it treats the intonation of the words to be relevant and genuine. ......"
12.7 It may be mentioned that the Three Judges Bench of the Hon'ble Supreme Court in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors., AIR 1975 SC 1788 (1) held that the use of tape recorded conversation is not confined to purpose of corroboration and contradiction only. When duly proved to be genuine, it can be used as substantive evidence. The Hon'ble Court also noted that there could be no, more direct or better evidence of a statement than its tape record. The observations made by the Hon'ble Court in this regard are reproduced hereunder:-
"19. We think that the High Court was quite right in holding that the tape records of speeches were "documents", as defined by Section 3 of the Evidence Act, which stood on CBI Vs. Sushanta Mukherjee & Ors. Page No. 24 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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no different footing than photographs........ .......
21. The High Court also referred to N. Sri Rama Reddy v. V. V. Giri, (1971) 1 SCR 399 = (AIR 1971 SC 1162), for the proposition that, like any document, the tape record itself was "primary and direct evidence admissible of what has been said and picked up by the receiver." In other words, its use was not confined to purposes of corroboration and contradiction only, but, when duly proved by satisfactory evidence of what was found recorded and of absence of tampering, it could, subject the provisions of the Evidence Act, be used as substantive evidence. Thus, when it was disputed or in issue whether a person's speech, on a particular occasion, contained a particular statement there could be no more direct or better evidence of it than its tape record, assuming its authenticity to be duly established.
22. In our opinion the High Court had rightly relied upon the tape recorded reproduction of the appellant's speeches....."
12.8 In view of the above position of law and also because the facts in that case were very distinct, the judgment of Two Judges Bench of the Hon'ble Supreme Court in Mahabir CBI Vs. Sushanta Mukherjee & Ors. Page No. 25 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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Prasad Verma's case (supra), as relied upon by Ld. defence counsel is of no assistance to the accused in instant case. 12.9 Coming back to the instant case. As noted above in para 12.3, identity of voices of the accused persons and the witnesses, in the tape recorded conversations and the contents of conversation in the calls in question, are not in dispute. Moreover, the prosecution witnesses in their examination-in-chief have explained the aforesaid conversations between them and the accused persons and their context. Further facts regarding such conversations, have been elicited by Ld. PP in cross-examination of the witnesses. Thus, the tape recorded conversations/ their transcripts in the instant case, having been duly proved, are the primary and direct evidence of the conversations which took place between the accused persons and the witnesses and can be used as substantive piece of evidence.
12.10 In view of the above, I find no merit in Ld. defence counsel's argument that the tape recorded conversations/ their transcripts in the present case are of no consequence. CBI Vs. Sushanta Mukherjee & Ors. Page No. 26 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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12.11 Let me now examine the evidence on record in the light of above facts and the settled position of law, as discussed above.
13.0 Before I proceed to examine the evidence/ testimony of CBI's witnesses, it would also be pertinent to mention here the observations of the Ld. Predecessor court about the demeanor of some of the witnesses. The learned Predecessor Court has made observations in the order-sheet dated 27.07.2012 that "PWs Naresh Gambir, Surender Kumar and Dharmender Yadav are present. The witnesses were called in the morning but none appeared and later they have appeared along with the accused persons at 11:00 am". Further, as the prosecution witnesses were turning hostile and were not supporting the prosecution case, S.P., Prosecution as well as concerned SP were directed to make inquiries whether the accused persons tried to approach or influence the witnesses.
13.1 On 16.08.2012, report in this regard alongwith annexures (call record) was filed by SP, Vivek Priyadarshan. On CBI Vs. Sushanta Mukherjee & Ors. Page No. 27 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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30.08.2012, IO/ DSP Rajesh Chahal had placed on record some more information/ call details gathered during the period and its analysis suggesting that A-2 approached some of the witnesses before their deposition was recorded in the Court. The said documents were also supplied to the learned counsel for A-2. The accused persons were given an opportunity to file reply. IO's report mentioned that the call records of mobile numbers 9811235820 and 9811347359 of A-2 and A-1, respectively, were obtained from the service provider for the period 01.10.2011 to 08.08.2012. It was revealed that the accused persons had been approaching some of the witnesses namely Sudershan Sharma, Praveen Rai, D. K. Gautam, D. K. Sharma, Nathu Ram, P. K. Lakra, S. N. Juyal and Rajbir Singh during the pendency of the trial. The IO reported that on 30 instances from 03.10.2011 to 30.07.2012, there was telephonic contact between A-2 and PW-16 Sudershan Sharma. On one occasion i.e. on 26.05.2012, there was a contact between A-1 and PW-16 Sudershan Sharma. It was also reported that on 12 occasions between 18.01.2012 to 31.07.2012 there were telephonic contacts between A-2 and PW-4 P. K. Kalra. Similarly, there were 6 instances between 25.04.2012 to 03.05.2012 when A-2 CBI Vs. Sushanta Mukherjee & Ors. Page No. 28 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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contacted PW-12 Praveen Rai; on two occasions i.e. on 19.12.2011 and 21.04.2012, there are telephonic contacts between A-2 and PW-10 Nathu Ram. The record of said call details/ its analysis is placed as Annexures- I to IV. 13.1.1 In view of the above, CBI had filed an application dated 16.08.2012, for cancellation of bail of A-2. 13.2 The learned Predecessor Court after perusing the status report and the documents/ details of call record filed by CBI had observed that prima facie A-2 had been in contact with PW-4 P. K. Kalra, PW-8 Narayan Dutt, PW-11 D. K. Gautam, PW-12 Paraveen Rai, PW-10 Nathu Ram Yadav, PW-7 Rajbir Singh, PW-13 S. N. Jual. In view of the same, the learned Predecessor Court allowed CBI's request for recalling the said witnesses to confront them with the documents/ call record details.
13.3 Aforesaid witnesses, PW-4 P. K. Kalra, PW-8 Narayan Dutt, PW-10 Nathu Ram Yadav and PW-12 Parveen Rai were accordingly, examined by the Learned Predecessor court as CBI Vs. Sushanta Mukherjee & Ors. Page No. 29 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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court witnesses on 11.10.2012. In their said examination, the aforesaid witnesses admitted that they had been talking to A-2, during the pendency of the trial. But, on being questioned by the Ld. Predecessor Court about the contents and reasons for their frequent contacts with A-2, the above witnesses evaded the real context of such conversation and took lame excuses. Details of the same shall be discussed while dealing with testimony of respective witnesses.
13.4 It may be mentioned that the Learned Predecessor Court vide order dated 11.10.2012 cancelled the bail of A-2, taking note of the above facts and demeanor of witnesses particularly PW-4 Prem Kumar Kalra. Ld. Predecessor Court observed that the CBI has been able to demonstrate that there was a definite pattern that the witnesses PW-4, PW-8, PW-10 and PW-12 were contacted just before or on the day they were examined in the court as witness, or soon thereafter; from which, an inference can be drawn that A-2 had been trying to approach/ influence the witnesses.
13.5 It is significant to note that the aforesaid order of CBI Vs. Sushanta Mukherjee & Ors. Page No. 30 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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cancellation of bail dated 11.10.2012 was not challenged by A-2.
14.0 In the above backdrop, I now proceed to examine the evidence/ testimonies of witnesses on record. Let me first examine the testimony of distributors/ dealers/ their agents/ attorney holders, who were supplying liquor to DSIIDC outlets and knew accused persons by virtue of their dealings. Demands from Dealers/ Suppliers of liquor : 15.0 PW-36 Vikramjeet Dhall, son of the MD of M/s Dhall Food and Beverages Pvt. Ltd., (which was supplying imported liquor/ beer/ wine to select outlets of DSIIDC in Delhi) has deposed that during the period 2007-08, he was assisting his father; he had been meeting A-1 in connection with their business. He also identified A-1 before the Court. After hearing the conversation in calls no. 89 and 105, dated 17.10.2007 and 06.11.2007, respectively, (when played in the court), transcripts of which are Ex.PW36/A, Ex.PW36/B, respectively (D-50, Pages 198 to 200 and Pages 241 & 242, respectively), PW36 deposed that his conversation with A-1 in call no. 89 was CBI Vs. Sushanta Mukherjee & Ors. Page No. 31 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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regarding supply of some imported brands, which were being introduced in the market for the first time. It is noteworthy that PW-36 then proceeded to state further that they had agreed to provide free samples of the said new brands to A-1 with the understanding that A-1 shall not pick up such brands from the shops/ outlets of the DSIIDC; but, A-1 still picked up the bottles of their brands from the shops and then asked them to reimburse the amount of the said bottles; the total costs of the bottles which were picked up by A-1 was around Rs.3000/- to 4000/-.
15.1 With respect to call no. 105, transcript of which is Ex.PW36/B, PW-36 stated that the same was regarding demand by A-1 pertaining to difference in amount, to be reimbursed to him towards their brand of liquor bottles picked up by A-1 from DSIIDC outlets/ shops in previous year and current year; A-1 complained that their (PW-36's) employee had not settled the account regarding their brand of liquor used by A-1 for personal consumption. It is also noteworthy, PW-36 even deposed that subsequently, they did not receive any order from A-1. CBI Vs. Sushanta Mukherjee & Ors. Page No. 32 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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Resultantly, they cancelled their dealings with A-1. PW-36, however, further stated that he could not recollect, perhaps they received some orders from A-1 but they decided not to deal with them.
15.2 In his cross-examination by accused, PW-36, although admitted that A-1 had made payments for the bottles, picked up by him for personal consumption, but then further stated (voluntarily) that A-1 was asking for reimbursement of such payments. PW-36 stood by the same in his further cross-examination in this regard and denied that A-1 never sought any reimbursement towards payments made by him for purchase of their brands of liquor.
15.2.1 It has also come in the cross-examination of PW-36 that the samples of liquor used to be sent to A-1 for his personal consumption or for corporation trial and were never sent by them to the shops/ DSIIDC outlets, as suggested to him. PW-36 categorically denied that he was deposing falsely at the behest of CBI.
CBI Vs. Sushanta Mukherjee & Ors. Page No. 33 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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15.3 It is evident from the testimony of PW-36 that A-1 used to pick up liquor from DSIIDC outlets for personal consumption. To ensure that A-1 did not do so, A-1 was supplied free samples of new brands of liquor for personal consumption. Despite that, A-1 picked up such brands of liquor from DSIIDC outlets without making payment and would ask the dealer/ supplier to make payment; even when he made payment, he would ask the dealer/ PW-36 to reimburse the same and followed up the matter with respect to the same and even regarding previous year's balance and expressed his displeasure in this regard. It is also evident that when payment was not made, no order was placed with PW-36's company. In these compelling circumstances, PW-36's company had to discontinue their dealings with accused. 16.0 The fact that gratification other than legal remuneration was being demanded by accused persons in cash and by way of liquor is also established vide testimonies of PW-22, PW-24, PW-32 and PW-35.
17.0 PW-24 Naresh Gambhir, who was working as Sales CBI Vs. Sushanta Mukherjee & Ors. Page No. 34 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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Manager with M/s Dhull Food Beverages during the period 2003 till 2007 deposed that he was looking after transportation/ loading and unloading of liquor from various liquor shops including that of DSIIDC; he was also dealing with payment towards purchases/ supplies; during his dealings with DSIIDC, he used to visit their accounts office and used to meet the officials; he also met accused persons on few occasions and had even talked to them over telephone. Both the accused were identified by the witness.
17.1 PW-24 after listening to calls no. 09 and 10 dated 08.09.2007 and call no. 43 dated 19.09.2007, played in court, the transcripts of which are Ex.PW24/A, Ex.PW24/B and Ex.PW24/D, respectively (D-50 pages 15 & 16, page no. 17 and pages no. 80 & 82, respectively) deposed that when A-2 called him up for supplying bottles of red wine, he was on leave; he was not in a position to supply the same because of his daughter's impending marriage; he requested A-2 to accept the bottle of white wine, as the same was cheaper; but A-2 insisted upon him for supply of red wine and followed up the matter with him; however, A-2 ultimately accepted the bottle of white CBI Vs. Sushanta Mukherjee & Ors. Page No. 35 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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wine.
17.2 It would be pertinent to refer here to the relevant portion of conversation between PW-24 Naresh Gambhir and Amrik Singh (A-2) vide Call No. 9, which is reproduced as under :
Call No. 9 (Ex.PW24/A) :
"......
.......
AS : main panch minute me aa janda
NG : haan mai bhi
AS : Lal le kai aai jara
NG : ayain
AS : Lal le aai yaar
NG : Lal nahi hai yaar, wo duja haiga
AS : keda
NG : wo duja wo --- paanch sau wala
AS : chal dekh leyi lal mil jaai to bada badiya
hai
NG : lal jaruri hai
AS : haan yaar mai koi portable cheej
phat de ke aa janga
NG : Achcha
AS : mere naal a cooperate kar le
............
............"
CBI Vs. Sushanta Mukherjee & Ors. Page No. 36 of 174
CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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17.2.1 From the the justification given by A-2 in the aforesaid conversation for demanding 'red' that, it is "portable"
and easy to carry, it is more than evident that reference to "red" & "500" was to "Rs.1,000/-" & "Rs.500/-" currency notes. Had it been wine, whether it was "red" or "white", how would the colour of wine have affected its portability. Further, it would not be out of place to mention here that it has come in the testimony of PW-11 Devender Kumar Gautam that in his conversation with A-2, "red" meant "Rs.1000/-" currency note. Even in A-2's own conversation with PW-21 and PW-41 he referred to Rs.1,000/- currency note as "lal wale". 17.3 With respect to call no. 43, PW-24 deposed that his said conversation with A-2 was regarding delivery of imported scotch and wine to A-1, which used to be collected by A-2 in routine. PW-24 further deposed that as they were dealing in imported brands, the accused persons used to request for supplying certain brands 3 - 4 times a month on an average and that they used to oblige the accused persons by supplying liquor at a discounted price.
CBI Vs. Sushanta Mukherjee & Ors. Page No. 37 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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17.3.1 Reference is made to Call no. 43 (transcript Ex.PW24/B) relevant portion of which is reproduced hereunder :
Call No. 43, Ex.PW24/D :
"AS : Haan ji NG : haan ji paa ji ki haal hai? ........
NG : Sir ais tarah hai ki tuada jeda kam hai, hun main busy haiga nahi to kal kar dena si. Main ek aadh din ee kar danga AS : nahi koi gal nahi raje explain nahi ho paya na .........
NG : Te mai ek minute, saab da number ki hai AS : Koi gal nahi, mainu kartiti koi gal nahi NG : chalo saab nu tu kai dai, Naresh Ji da message aa gaya hai ki main, kal parso da mera sagan haiga 23 da sun, mai koshish karna agar kal mai thoda ja free ho sakya na te mai kal kar danga, nahi te mai AS : Mainu telephone kar dayi, mai Patel Nagar to pick-up kar langa koi dikkat thodi hai, pahle kitta hai te hun vi kar langa.....
........
NG : Te Friday shasmi ya tera kam kar danga CBI Vs. Sushanta Mukherjee & Ors. Page No. 38 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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ya Saturday savere .........
NG : Theek hai o thoda honda amount te mai kolo hune vi de denda gharo, amount thoda zyada haiga na is pichche mai kai raya si AS : Hoon - O main gal kiti si percentage te mai kaya ghat hoi nahi, twade walo ki kami hai .......
NG : Nahi mai kya saab naal gal kara koi AS : Nahi tu chinta na kar tu, mai aape kar langa ..........
NG : Theek hai aur ona nu phone kar de tu kahin Naresh ne kah ditta hai ki mai busy haiga hai, twada kal ya parso kam ho jayega .........."
17.3.2 From perusal of the above conversation particularly the portion that had the amount been less, he (PW-24) would have provided the same from his residence; but the same being a big amount, he would have to arrange. It is apparent that reference therein is made to money and not to liquor bottles and PW-24 sought a day or two's time for CBI Vs. Sushanta Mukherjee & Ors. Page No. 39 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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paying the same as, he was busy with marriage arrangements; PW-24 has stated in his testimony that at that time he was busy with his daughter's marriage. From the conversation, it is also apparent that money was to be paid to A-2 for A-1; PW-24 assured that work of A-1 shall be done; and when A-2 informed PW-24 that the "percentage" could not be reduced, PW-24 asked A-2, should he talk to "Saab" (A-1). On which, A-2 told that he himself will speak and assured PW-24 not to worry. Same reflects proximity of A-2 with A-1. In view of these facts, an effort on the part of the witness to save himself from being a bribe giver and to shield the accused persons, is quite apparent.
17.3.3 Even if PW-24's version that reference was to liquor bottles, is accepted for a while, it is established that demand for liquor was made by A-2 on A-1's behalf; and PW-24 assured to supply the same. The fact that A-2 was taking bottles of scotch/ wine from PW-24, is admitted by A-2, in view of his own suggestion to the PW-24 in cross-examination. In response to which, PW-24 categorically denied that no bottles of scotch/ wine were ever supplied to the accused persons at discounted CBI Vs. Sushanta Mukherjee & Ors. Page No. 40 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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price. Thus, as per PW-24, accused, as a matter of routine used to take/ were supplied liquor bottles at discount. No explanation has comeforth from accused persons as to why was the liquor being routinely demanded/ obtained from suppliers and that too at a discounted price.
17.4 With respect to call no. 37 dated 18.09.2007 and call no. 145 dated 03.12.2007, transcripts of which are Ex.PW24/C (D-50 Pages 65 & 66) and Ex.PW24/E (D-50 Pages 327 & 328), PW-24 deposed that his conversation with A-1 (in call no. 37) was regarding request by the A-1 to him to make payment of two bottles of wine costing about Rs. 4000/-, which A-1 had taken from the liquor outlet of DSIIDC at Masjid Moth; and as per usual practice told him (PW-24) that he would reimburse the said amount later on; and that he had received the said payment later. With respect to call no. 145, PW-24 deposed that the said conversation was about demand of cognac by A-1 and about some payments, which were to be collected for A-1 from Mr. Vikramjeet Singh Dhull, his employer. But, he further stated that he did not remember the details, thereof.
CBI Vs. Sushanta Mukherjee & Ors. Page No. 41 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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17.4.1 Reference is made to relevant portion of conversation between A-1 and PW-24 vide calls no. 37 & 145, which are reproduced as under :
Call no. 37 (between A-1 and PW-24),
(Ex.PW24/C) :
".........
SM : tera boss bhi goli baaji kar raha hai kya wo aaunga kah ke aata nahin hai khair chakkar kya hai?
........
NG : to ab maine chhuttiyan le li hai kal se ............
SM : Nahi to Amrik to nipta diya tune NG : Maine wo hi kiya tha wo hi apni jeb me se. Main aaj-aaj wo mere dene aa raha hai wahin - wahin jo maine diye the naa-- saaman ..............
NG : baaki ka maine koi baat nahi kari, mai abhi baat karta hoon aur aapke paas bhejata hoon usko main SM : Achcha baat karke bhej yahan pe, aise kaise chalega yaar-----
NG : main--main Sameer ko bhejata hoon aapke paas ........
........"
CBI Vs. Sushanta Mukherjee & Ors. Page No. 42 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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Call No. 145 (between A-1 and PW-24), (Ex.PW24/E) :
"......
SM : Ek kaam kar - ek to - mere ko na usse
Dhull se
NG : haan ji
NG : haan ji
SM : ek koniyak la de
NG : Sir, Dhull ko to maine chhod diya
SM : phir bhi use kah de na --
NG : mai kah deta hoon
SM : kah ke ek --- bhijva do
.........
SM : Theek hai - aur dusari baat - wo ji -jo ---
ka jo payment wagerah de gaya tha NG : haan --- haan SM : wo hisaab nahi kar gaya NG : aiyan SM : hisaab nahi kar gaya wo NG : kaun SM : Dhull .......
NG : Achcha - ab yahi kami hai uske andar na NG : Suno meri baat SM : haan NG : ye kab de ke gaya hai hissab .........
CBI Vs. Sushanta Mukherjee & Ors. Page No. 43 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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SM : Jo --- jo tune diya tha bas--- NG : achcha uska nahi kar gaya ........
NG : Mai bolu Vikram to bolu aapse baat kar le SM : Haan--- Vikram ---aake baat kare ---
dukaan pe na kare ..........."
17.4.2 It is apparent from call no. 37, that A-1 was complaining about PW-24's boss avoiding him. A-1 even enquired whether A-2's demand has been met by them. PW-24 informed A-1 that he has given from his pocket; and that same would be reimbursed to him by the dealer. In view of the same, PW-24's story of supply of liquor bottles to A-1 and A-1 reimbursing the cost, is evidently an attempt to shield the accused. Same is even contrary to PW-24's statement u/Sec. 161 Cr.PC, wherein he has stated that the cost of liquor bottles provided to A-2/ A-1 was reimbursed to him by the distributor. It would be pertinent to refer to the relevant portion of his version u/Sec. 161 Cr.PC ".....I state that Sh. S Mukherjee, OSD was asking for providing wine bottles to Amrik Singh which I confirmed that I had provided the same from my own pocket. However, the CBI Vs. Sushanta Mukherjee & Ors. Page No. 44 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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said cost of the wine bottles was returned to me by the said distributors. Now I do not remember the name of the said distributor. Shri Mukherjee used to call the distributors like Sameer Mahendru, Vikramjeet Singh Dhall etc to discuss the issues of release of payments etc. But they also used to avoid him because S Mukherjee also used to demand for expensive bottles.
...... a bottle of foreign wine/ scotch costs anywhere Rs.4000/- to Rs.40,000/- and Mukherjee and Amrik Singh used to demand 4 - 5 such bottles every month which demand the distributor were finding very difficult to fulfill. He had also threatened the distributors that he would not release the payments as well as the orders of their brands. It is true that I had sent the message to Sameer Mahendru that Sh. Mukherjee wanted to see him. But Sh Mahendru avoided the same."
17.5 From the above, it is seen, despite PW-24 informing that he has left Dhall's company, A-1 insisted upon him to get cognac from Dhall. A-1 even complained that Dhall has not even given proper "hisaab" of payment made by him (dhall). Considering the above evidence in entirety, it is established CBI Vs. Sushanta Mukherjee & Ors. Page No. 45 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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that the accused persons were demanding money and expensive liquor/ wine etc. from PW-24/ his employer as a matter of routine. Accused persons received and even picked up liquor from DSIIDC vends and asked the company/ its representative to reimburse. The accused persons have failed to demonstrate that they made payments for liquor which was picked up from vends/ requested from the company. 17.5.1 Even if for a while, their plea that payments were made later, it has remained unexplained as to why and how were they obtaining liquor supplies on credit from a dealer/ supplier with whom they had official dealings; and even at a price (discounted) less than the market price. In such a situation, a legal presumption u/Sec. 20 PC Act can be drawn against the accused persons, as discussed in detail in para 49.0 and its sub-paras (infra).
18.0 PW-22 Sh. Dinesh Kumar @ Mehta was working as Salesman in the office of Pradeep Tandon, an Agent/ Power of Attorney of M/s Mc Dowell & Company Ltd., which was engaged in distribution and sale of IMFL to DSIIDC etc. He has deposed CBI Vs. Sushanta Mukherjee & Ors. Page No. 46 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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that he knew both the accused persons as he had been meeting them with respect to the official dealings. 18.1 PW-22 after hearing his conversation with A-2, vide call no. 113 dated 14.11.2007, transcript of which is Ex.PW22/A (D-50 Pages 263 & 264), testified that as far as he could remember, in the said conversation, he was instructed by Sh. Pradeep Tandon to deliver a sum of Rs. 1,70,000/- to A-2; and that as per discussion with A-2, he had handed over the same to A-2's father. He further stated that he did not know the purpose of the payment of the said amount to A-2. But, again said that the said money was given to Sh. Pradeep Tandon by a relative of A-2 residing somewhere in Punjab. In his cross-examination by learned PP, PW-22 reiterated that he had personally delivered the said amount to A-2's father. 18.2 From the reference to aforesaid conversation Ex.PW22/A, it is seen that PW-22 told A-2 that amount has been arranged from somewhere so as to give it to him (A-2); there is no mention of amount having been sent by any relative. It is thus, evident that the amount was sent by Pradeep Tandon. Not CBI Vs. Sushanta Mukherjee & Ors. Page No. 47 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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only this, A-2 even enquired from PW-22 whether the amount was in large/ red currency notes i.e. Rs.1,000/- denomination. If the amount was sent by some relative, where was the occasion for A-2 to enquire about denomination of currency. Relevant portion of said conversation is reproduced hereunder:
Call No. 113 :
"......
AS : Sawere ghar father ko de ja
......
M : haan mai ghar Jamna paar hi hoon ---
aisa hai ji ki maine kahin se paise liye the - tuada (amount da pata) tha aur wadde note hai, de danga ghar hi aaj AS : haan wadde haige na lal waale M : haan lal waale AS : haan to theek hai phir ghar chhod ja dada kah raha hai ki unu phon kar aaj ........
AS : Theek hai ghar daddy nu de ja
M : Ek Sattar hai
......."
(Words -"amount da pata" shown as "aspasht" in Ex.PW22/A are mentioned in Ex.PW22/DA.) 18.3 PW-22 admitted that his statement was recorded by CBI Vs. Sushanta Mukherjee & Ors. Page No. 48 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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CBI but, denied that he had stated to CBI that Pradeep Tandon had told him that the said amount of Rs 1,70,000/- was to be paid to accused persons, as they were threatening to harm his business. Said denial is contrary to PW-22's version under Section 161 Cr.PC, Ex.PW22/DA, with which he was confronted.
Even if PW-22's version that the said amount was sent by A-2's relative, is accepted for a while, no explanation from A-2 has come regarding the details of relative and why and for what purpose he sent the said amount of Rs.1,70,000/-. The onus was upon A-2 to demonstrate the nature of payment. In absence of any such explanation, legal presumption in terms of Section 20 P.C. Act can be drawn against A-2, [discussed in detail in para 49.0 and its sub-paras (infra)] 19.0 PW-32 Dharamveer Yadav was working as Sales Executive in M/s Khode India Ltd. during 2007 and had been supplying their brand of liquor to DSIIDC. He also stated that he knew both the accused persons and identified them in the court. After hearing the recorded conversation vide call no. 35, dated 17.09.2007 and call no. 36 dated 23.11.2007, between him and A-2, transcripts of which are Ex.PW32/A (D-50 Page-
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61) and Ex.PW32/B (D-50 Page 301), respectively, PW-32 deposed that A-2 had facilitated availing of friendly loan of Rs.
10,000/- from someone returnable in 12 months; and PW-32 was discussing return of the said loan amount with A-2. In conversation vide call no. 136 (wrongly typed as 36 in the testimony), PW-32 inter alia, is saying to A-2 that "Sir wo dena tha hisaab kitaab". PW-32 explained that he was talking about returning of loan amount to A-2 at the rate of Rs.1,000/- per month.
19.1 Perusal of aforesaid conversation reveals that there is no mention of any loan in the said conversation. This theory of loan is even contrary to PW-32's version in his statement u/Sec. 161 Cr.PC, which is Ex.PW32/C (this exhibit mark is not mentioned in testimony) with which he was confronted; in statement u/Sec. 161 Cr.PC it is recorded that that the accused persons had threatened to curtail the supply orders, in case monthly payment of bribe was not made; and that the payment of bribe every month for accused no. 1 used to be made through A-2, in order to get supply orders. In the aforesaid conversation also, A-2 was expressing his displeasure to PW-32 CBI Vs. Sushanta Mukherjee & Ors. Page No. 50 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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about his not being regular; A-2 also asked PW-32 to come, as even A-1 wanted to talk to him (PW-32).
19.2 Even if the loan story of PW-32 is accepted for a while, it is seen that A-2 did not dispute the factum of loan, as PW-32 was not cross-examined by A-2. If that be so, nothing has come on record from A-2's side, from whom that loan was arranged by A-2 for PW-32; and how and why was he facilitating loans for persons with whom he had official dealings. In view of the same, it is evident that the aforesaid conversation was about demand/ payment of money to A-2; and that the story of friendly loan and its repayment in monthly instalment by PW-32 is an obvious attempt to camouflage demand of money and an attempt to safeguard his own interest and to shield the accused persons.
20.0 PW-35 Balesh Kumar Bhati was working as Sales Executive with Sh. H.S. Munjral, having annual licence of M/s Pernod Ricard India (Pvt.) Ltd. After hearing call no. 45 dated 20.09.2007, transcript of which is Ex.PW35/A (D-50 pages 85 and 86), PW-35 deposed that the said conversation with A-2 CBI Vs. Sushanta Mukherjee & Ors. Page No. 51 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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was regarding providing of carry bags by their company to various outlets of DSIIDC. In his cross-examination by Ld. PP, PW-35 admitted that their company was not into manufacturing of carry bags. PW-35 denied that they were supplying liquor bottles in routine to A-2, but he then voluntarily went on to state that they had obliged A-2 once or twice by supplying liquor bottles. PW-35 stood by the same in his cross-examination by A-2 and categorically denied that no liquor bottles had been supplied to accused at any point of time, free of cost.
20.1 In his further cross-examination by learned PP, PW-35 denied that he had told CBI that they had even been making the payment to A-2 as they were threatened that otherwise their supplies would be cut down. He also denied that he told CBI that in the aforesaid conversation A-2 had asked him to bring in currency notes in denomination of Rs.500/- or Rs.1,000/- for payment of bribe. He also denied that they were giving monthly payments to both the accused persons for sustaining the supply of their brands of liquor and for release of payment. Such denial by PW-35 is contrary to his statement CBI Vs. Sushanta Mukherjee & Ors. Page No. 52 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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u/Sec. 161 Cr.PC, which is Ex.PW35/DA, with which he was confronted.
20.2 In Ex.PW35/DA, PW-35 has stated before CBI that the aforesaid conversation vide Call No. 45 was regarding handing over of some money to A-2 in Connaught Place on that day; Sh. H.S. Munjral had given money to him for further handing over to A-2; he had accordingly handed over the bundles of notes to A-2. He further explained that in that context, A-2 was asking him to get the money changed and not bring the bundles by saying "Haan te zara change kara ke le aayi mere kol gatthar na le aayi". Further, a reference to the transcript Ex.PW35/A of the aforesaid call reveals that A-2 was asking PW-35 not to bring the bundle. On which, PW-35 assured him that he would make efforts to change the same from the bank. The relevant portion of the said conversation is reproduced as under :
"AS : Nahi ghar paase thoda haiga main, mere daftar baitha haan teri intzaar hi special kar raya haan BB : Achcha - bas main thoda AS : Tere to baad hi nikalna hai main BB : Achcha, te aive haiga main bank to CBI Vs. Sushanta Mukherjee & Ors. Page No. 53 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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kara ke phir aa raha haan othe ............
...........
AS : Haan te zara change kara ke le aayi mere kol gatthar na le aayi BB : o gatthar hi haiga, change kitho karavanga AS : Hain? - Mainu nahi pata main kah ditta si munjral nu kara ke layayi - easy nahi honda ........
........
BB : Chalo jina ho sakega aune te kara hi layavanga AS : Jina nahi, jis tarah vi kara AS : hune pahunch raha hai te tu pahunch hi nahi --
BB : O main bank te haiga si na - puttha kam pai gaya hai. Main aa raya wan, tavade kol aa raya han"
20.2.1 From the above, it is evident that the reference in the conversation was not to any carry bags, but to delivery of money. A-2 insisted upon PW-35 to get the currency changed as it was not easy to carry the bundle/ "gathar" (of small currency notes). In view of the same, the explanation of PW-35 in his CBI Vs. Sushanta Mukherjee & Ors. Page No. 54 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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testimony that the reference in the conversation is to "carry bags" is evidently an attempt on his part to safeguard his interest and to shield the accused.
21.0 The fact that the accused persons were demanding bribe for expediting release of payments has also come in the testimony of PW-47 and PW-48.
22.0 PW-47 Anil Sapra partner in M/s Phoenix Marketing agent of M/s Millennium Beer Industries Pvt. Ltd. deposed that they had been supplying their brands to DSIIDC; he knew A-1 as he had been dealing with him since 2003, and had been talking to him on his mobile number, but stated that he did not know A-2 as he never dealt with him. After hearing call no. 133 dated 21.11.2007, the transcript of which is Ex.PW47/C (D-50 Page
298). PW-47 deposed that in the said conversation between him and A-1, he was seeking A-1's permission to visit his house to give him Diwali gift. In his cross-examination by A-1, PW-47 stood by the same and denied that he never visited A-1's house and never gave him any Diwali Gift. CBI Vs. Sushanta Mukherjee & Ors. Page No. 55 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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22.1 The other conversations between PW-47 and A-1 viz. Calls No. 25 dated 11.09.2007, & No. 44 dated 30.09.2007, no. 133, dated 21.11.2007, transcripts of which are Ex.PW47/A (D-50 Page 46-47), Ex.PW47/B (Page 83-84), Ex.PW47/C (Page 298-299), respectively, were about reconciliation of delivery challans with different kiosks of DSIIDC and expediting their payments.
22.2 Although, PW-47 in his examination in chief stated that A-1 did not demand any money from him for prompt payment of their bills or for more supply orders. But, in his cross-examination by Ld. PP, PW-47, while denying the suggestion that he stated to CBI that A-1 demanded bribe for giving more orders to them and for fast tracking their bills, went on to state that from his discussions with A-1, at times he could sense that A-1 was demanding bribe, but, they never paid anything to him. He was not cross-examined in this regard by A-1. Thus, A-1 did not dispute that by way of his aforesaid conversation with respect to expediting release of payment for supplies made by PW-47's company/ for more supply orders to them, he subtly communicated his demand for CBI Vs. Sushanta Mukherjee & Ors. Page No. 56 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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bribe.
22.3 Let me reproduce the relevant portion of Calls no. 44 and 133, which is as under :
Call no. 44 (Ex.PW47/B) :
"....
AS : Main ho aaunga sir ghar pe
.....
SM : O cheque ka amount check kar jaiga AS : Sir mujhe pata hai sir ....
AS : 10 ke hisaab se hai na
....
AS : 10 matlab 10,000 cases hai na sir
.....
AS : Detail maine aapse le liya tha first week
me hi --- 10168 cases hi --- into 16 --- theek hai sir ho jayega SM : To kyon AS : Sir mere ko discount de rahe ho na aap .....
AS : chalo jo aap kaho theek hai 18 ke
hisaab se it will be delivered today
....."
Call No. 133 (Ex.PW47/C) :
"....
CBI Vs. Sushanta Mukherjee & Ors. Page No. 57 of 174
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AS : Sir - jara ghar kisi ko kah denge mai jaunga aadhe ghante baad SM : Haan bol doonga main ....
AS : 5600 peti ka tha sir
....
AS : Fifty six hundred peti thi sir
....
SM : Main check kar loonga
AS : Aap kar lijiyega - baaki jo bhi hoga koi
problem nahi
....."
22.3.1 Perusal of the aforesaid conversations reveal that
PW-47 was visiting A-1's house for delivery of liquor cases/ payment as per number of cases. In Call No. 44, dated 30.09.2006, PW-47 even confirmed with A-1 that "10" means "10,000 cases only". He also asked about discount and thereafter, he assured A-1 that, ".....18 ke hisaab se, it will be delivered today". Further, (vide Call No. 133, dated 21.11.2007) PW-47, on reaching A-1's residence told A-1 that it is for 5600 cases; A-1 told that he will check. On which, PW-47 told that "aap kar lijiyega-- baaki jo bhi hoga koi problem nahi hai.". On reaching A-1's residence, PW-47 again called up A-1 and told him "Sir aap phone kar de, main neeche khada hoon.".
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22.3.2 From careful reading of entire conversation in conjunction with PW-47's testimony, it is evident that PW-47 delivered at A-1's residence liquor cases/ money as per number of cases. From reference to "cheque amount" it appears that the gratification by way of liquor/ money was being towards release of payment for supplies made by the company represented by PW-47. No explanation has come-forth from A-1 as to why was PW-47 visiting his home for delivering liquor cases/ money, if the matter under discussion between them was official in nature, as pleaded. This becomes all the more significant in view of PW-47's testimony that he sensed from his discussions with A-1 that A-1 was demanding bribe. 22.4 Thus, it stands established that A-1 demanded/ received illegal gratification from PW-47 apparently for expediting payments.
23.0 PW-48 Vivek Gujral, Sales Executive with M/s N. V. Distilleries Ltd., who was supplying liquor to DSIIDC, also stated in his cross-examination by Ld. PP that from his discussions with both the accused persons at times, he CBI Vs. Sushanta Mukherjee & Ors. Page No. 59 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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could sense that they were demanding bribe, but further stated it was never paid to them.
23.0.1 PW-48 after listening (in the court) to the tape recorded conversation vide Call No. 11 dated 09.08.2007, the transcript of which is Ex.PW48/A (D-50 Page No. 18) explained that his said conversation with A-2 was regarding replacement of a bottle of Vodka. He stated that sometimes he used to supply two bottles of Vodka - Blue Moon Premium and Blue Moon Apple for personal consumption of A-2, on his demand; A-2 had told him that he did not like the Blue Moon Apple and instead asked for Blue Moon Premium. He further stated that A-2 used to make the payment for the said supplies and the same were not given for free.
23.0.2 From this deposition of PW-48, it is clear that A-2 used to ask for liquor for personal consumption from the dealer. Why was A-2 not buying liquor from the Liquor Vends and was instead requisitioning it from dealers/ suppliers, has remained unexplained. It is noted that A-2 in his statement under Section 313 Cr.PC denied having demanded - "illegal gratification in the CBI Vs. Sushanta Mukherjee & Ors. Page No. 60 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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nature of replacement of Vodka bottles". 23.1 As PW-48 did not support prosecution version, he was cross-examined by Ld. PP. In his cross-examination by Ld. PP, PW-48 admitted that he had talked to A-2 on 08.09.2007 (date wrongly typed in examination-in-chief as 09.08.2007) and had met him (A-2) on that day at a shop at Greater Kailash Part- II. But, denied that he had told CBI that both the accused persons used to demand money and the aforesaid conversation was with respect to handing over of money to A-2 at his residence at Greater Kailash, New Delhi. He also denied that he stated to CBI that the word "Red" in the aforesaid conversation meant money in the denomination of Rs.1,000/- and the word "Green" in the conversation meant money in the denomination of Rs.500/-, demanded by A-2. Said denial is contrary to PW-48's version u/Sec. 161 Cr.PC, Ex.PW48/D, with which he was confronted. In his said statement with respect to aforesaid conversation, PW-48 stated that the same was regarding handing over of some money to A-2 in G.K.-II on that day at about 03:00 pm; A-2 had asked him to bring the money in the denomination of "Red", that is, Rs. 1000/- each. However, he CBI Vs. Sushanta Mukherjee & Ors. Page No. 61 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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could arrange the currency in the denomination of Rs. 500/-. 23.2 It is noteworthy that PW-48 did not deny Ld. PP's suggestion that he had also stated in his statement u/Sec. 161 Cr.PC Ex.PW48/D (where it is so recorded), that both the accused persons demanded bribe for placing more supply order and for fast tracking their bills and rather, simply stated that he did not remember whether he stated so; PW-48 then went on to state further that he could sense something from the conversation with accused persons that they were demanding bribe.
23.3 The varieties of Vodka marketed by N. V. Group include - "Blue Moon Crystal Pure", "Blue Moon Orange" and "Blue Moon Spring Apple". There is no product in colour "red". Further, cap color of no Vodka variety is "red". In view of the same, PW-48's explanation in his cross-examination by A-2 that words "Red" and "Green" indicated the cap color on the bottles of Vodka, appears to be a deliberate attempt on the part of witness to conceal the truth.
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23.4 It would be pertinent to refer here to the relevant portion of the aforesaid conversation, which reads as under:-
Call no. 11 (Ex.PW48/A) :
"..........
............
AS : aur gujarish hai ki zara kuchch change karke le aana. Mere waste ye karna. Lal wale ho jaaye to bahut badiya hai. VG : Lal to nahi hoyega hara ho jayega. AS : Theek hai VG : Theek hai AS : Aur teen baje uththe VG : Teen baje G. K.-2 na ..........."
23.4.1 From the use of words "Lal Wale Ho Jayen", in the above conversation, it is evident that the reference certainly was not to a Vodka bottle. Had that been the case, the reference would have been "Lal Wali". Further, as has already been noted above that A-2 himself referred to Rs. 1000/- currency notes as "Lal Wale", in his conversation with PW-21 and PW-41; and that it has also come in the testimony of PW-11 that in his conversation with A-2, the word "Red" meant Rs. 1000/- notes. In view of these facts and circumstances, it is CBI Vs. Sushanta Mukherjee & Ors. Page No. 63 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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more than evident that the reference in the conversation of A-2 with PW-48 was with respect to demand of money in currency notes of Rs.1,000/-. PW-48 himself has stated that he could sense that the accused persons were demanding bribe. 23.5 Considering in totality, PW-48's testimony alongwith above material on record, it is evident that demand for money was being made by A-2.
24.0 The demands for liquor by the accused persons from the suppliers is also made out vide from the testimony of PW-23 and PW-29. PW-23, Pankaj Prabhakar, Area Sales Executive in Mohan Meakin Limited (since 1994 till date), who had been looking after the sales/ marketing of liquor besides other matters of the company, deposed that he knew both the accused persons as he had been meeting them in their office for official work and had also been talking to them on mobile or telephone. After hearing call number 22 dated 10.09.2007, between him and A-1, transcript of which is Ex.PW23/A (D-50 Pages 37 & 38), PW-23 explained that the said conversation was in the context of demand by A-1 of some cases of CBI Vs. Sushanta Mukherjee & Ors. Page No. 64 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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liquor on discounted price for meeting his personal obligations; and also about supply of less quantity as against the demanded quantity of liquor cases. In his cross- examination by learned PP, PW-23 admitted that he had told CBI that A-1 used to demand cases of liquor every month for meeting personal obligations. He further went on to state that "since we had to maintain business relations, (we) used to meet the demand". PW-23 denied that they were forced to meet such demands, as they were threatened that their business would be harmed. Said denial is contrary to PW-23's version in his statement u/Sec. 161 Cr.PC, Ex.PW23/DA, with which he was confronted. It is recorded in Ex.PW23/DA that A-1 used to demand from PW-23 cases of liquor almost every month and sometimes money; he used to ask for cases of liquor even from their contractor and distributor R.N. Tandon. For these reasons, PW-23 used to avoid A-1; A-1 extended threats to harm their business; under compulsion, he used to give some cases of liquor and some money to A-1.
24.0.1 Reference is made to call No. 22/ Ex. PW23/A, relevant portion of which is reproduced hereunder :
CBI Vs. Sushanta Mukherjee & Ors. Page No. 65 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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Call No. 22 (Ex.PW23/A) :
".....
SM : har baar kam karke jaate hai, samajh me nahi aata kya kar rahe hain ......
: Aise kaise
SM : Kah raha hoon main
.......
SM : Yaar mai kah raha hoon na, mai aapse galat kahoonga kya : Aiyen achcha SM : To aisa hai ki aakar baat kar jao final aisa achcha thoda lagta hai ki mai aapko baar baar kahun : theek theek main kal aata hoon SM : kal kisi time aa rahe hai. Colonel sahab aa rahe hai ya nahi aa rahe, yeh batao mujhe ......
: Main aaya - main aaya, saman bhej diya hai maine aapka SM : wo hi to kah raha hoon kam bheja hai : kam bheja hai aise kaise SM : Haan me kah raha hoon na. Mere se aake mila liya karo hisaab mila liya karo aapko pata chal jayega ......."
CBI Vs. Sushanta Mukherjee & Ors. Page No. 66 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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24.1 Perusal of aforesaid conversation vide Call No. 22/ Ex.PW23/A reveals that A-1 was complaining to PW-23 that neither he nor Sh. Tandon talked to him or visited him; A-1 took objection to the same and also complained about the fact that every time they were "doing less".
24.2 From the above testimony of PW-23 and tape recorded conversation, it is evident that cases of liquor were being supplied to A-1 every month by PW-23/ their contractor to maintain business relations; and A-1 even complained about delivery of less quantity than demanded and also expressed his displeasure on laxity in this regard on PW-23/ contractor Tandon's part.
24.3 The fact that cases of liquor were supplied to A-1 for personal consumption, is admitted by A-1 vide his own suggestion put to PW-23 in his cross-examination; although, it was further suggested that the PW-23 was compensated for the supplies made at discounted rates. A-1's suggestion to PW-23 in cross-examination that the supply of cases of liquor was an official and not a personal obligation towards A-1 is contrary to CBI Vs. Sushanta Mukherjee & Ors. Page No. 67 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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A-1's own suggestion of supply of liquor to him at discounted rate. If the same was an official supply, where was the occasion of "discount". Rather, from further suggestion that such supplies "used to be compensated with the consideration at that time or later" also, it is evident that such supplies were personal; and as per PW-23 himself, those payments were sometimes not made at the time of supply but, later on. This story of supply of liquor towards "official obligation" is also absolutely out of sync with PW-23's version/ above evidence that the liquor cases were supplied to maintain business relations and is an obvious attempt on the part of PW-23 to safeguard his interest and to save the accused persons. 24.4 In view of the above, it is clearly made out that A-1 was demanding and receiving liquor from PW-23 for meeting his personal obligations. Even if the plea of A-1 regarding making payment later on is accepted, burden was upon A-1 to demonstrate that such payments were made. Even if A-1 is believed to have made such payments, admittedly he obtained liquor at a discounted price, that is, at a rate less than its market price. Thus, presumption u/Sec. 20 P. C. Act can be CBI Vs. Sushanta Mukherjee & Ors. Page No. 68 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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drawn against A-1 [as discussed in detail in para 49.0 and its sub-paras (infra)].
25.0 PW-29 Anil Kumar Singh, who was Area Sales Manager of M/s Prinod Ricard India Pvt. Ltd., during 2007-2008, deposed that they were supplying their liquor brands to DSIIDC and had been dealing with both the accused persons. PW-29 identified both the accused persons before the court. PW-29 did not support CBI's version. But, in his cross-examination by Ld. PP, PW-29 admitted that he had stated before CBI that the accused persons used to demand bottles of liquor as bribe. He then further stated that - "But, we never delivered any bottles to them". Meaning thereby, that bottles were demanded, but were not delivered. PW-29 stood by the same in his cross-examination on behalf of A-1 and denied that he has deposed falsely in this regard. PW-29 was not cross-examined by A-2.
25.1 Ld. defence counsel argued that statement of PW-29 that he stated so before CBI is simply a previous statement and is of no consequence and placed reliance upon CBI Vs. Sushanta Mukherjee & Ors. Page No. 69 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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the judgment of the Hon'ble Delhi High Court in Satish Kumar v. State, 1995 III AD Delhi 588. In that case, in cross-examination by the prosecution, the witness had admitted her statement made before police u/Sec. 161 Cr.PC. But, she was not cross- examined further. In that context the Hon'ble High Court in paras 21 & 22 noted as under :
"21. In her cross-examination by the prosecution, she had affirmed the fact, an suggested to her, that she had told the police that her son Suresh had returned at 12 midnight and had gone behind the hut for urination and she had also stated to the police that the appellant, Satish Kumar, had followed Suresh. ..... .... Suresh Ne Mujhe Chaku Mar Diya HAI".
These statements made by the witness in cross- examination appear to be wholly inadmissible in evidence because it need not be emphasised that any statement to the police made by any witness is not admissible in evidence and such a statement could be used only for the purpose of contradicting the witness in view of provisions of Section 162 of Criminal Procedure Code read with Section 145 of Indian Evidence Act.
22. .......the Additional Sessions Judge had lost sight of such elementary legal principles of CBI Vs. Sushanta Mukherjee & Ors. Page No. 70 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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taking evidence in a case. The prosecutor who put the questions in this form to elicit the answers was also perhaps completely ignorant of the legal procedure for cross-examining the witness produced by the prosecution itself. The questions which ought to have been put to the witness while cross-examination by the prosecutor, should have elicited facts and not statements made to the police. So, this part of the testimony of the witness has to be completely ignored from consideration as to what she had narrated to the police."
25.1.1 Situation in the instant case is little different. Here, besides affirming what was stated by him before CBI, PW-29 also stated that but they did not meet the demand of liquor bottles by accused persons. In the said statement of PW-29, making of demand by accused persons is implicit. Same substantiates prosecution version that accused persons were demanding bribe in kind.
26.0 The fact that the liquor bottles were picked up/ obtained from DSIIDC vends by the accused persons despite protest by the suppliers and that the suppliers were made to CBI Vs. Sushanta Mukherjee & Ors. Page No. 71 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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pay for the same, is borne out from the testimony of PW-34 Sameer Mahendru. It is also made out that such illegal gratification was obtained by the accused persons for expediting release of payments to them. PW-34 deposed that during the period 2007-2008, he was working as an attorney and C&F Agent for M/s Skol Beverages Ltd. and had been supplying its brands to various outlets of DSIIDC. He knew both the accused persons and identified them in the court. After hearing Call No. 38 dated 19.09.2007, transcript of which is Ex.PW34/A [D-50 Pages 67 to 69], PW-34 deposed that said conversation with A-1 (as far as he recollected), was about shortfall in supplies and pending payments from DSIIDC. It is noteworthy that PW-34 further testified that he was approached several times to meet A-1 personally, but, for professional reasons, he always avoided to meet him. He further stated that on several occasions there were demands for supply of liquor bottles to A-1; and many a times, liquor bottles used to be collected from DSIIDC outlets, at the behest of A-1. He further stated that they had even expressed displeasure several times telling them that only discount can be given and nothing can be CBI Vs. Sushanta Mukherjee & Ors. Page No. 72 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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given free of cost. PW-34 stood by the same in his cross- examination on behalf of A-1. He stated in cross-examination that his salesman used to report about collection of beer bottles on behalf of A-1 from time to time. He also stated that on few occasions, payments were made later on towards procurement of the beer bottles but sometimes no payment was made, since the amount was very small. He reiterated in cross- examination that he had shown his displeasure to his salesman but, stated that he never sent any letter of protest to the senior officials of DSIIDC.
26.1 In view of the above, it stands substantiated that demands for liquor bottles by A-1/ on his behalf were made and the liquor bottles were even lifted from DSIIDC outlets, without payment, despite objection by the supplier. 26.2 Further, a closer scrutiny of the conversation vide transcript Ex.PW34/A, reveals that such demands were not only about liquor bottles. In the said conversation A-1 was very upset with PW-34 for not meeting/ calling him up on phone, despite sending repeated messages even through his employee CBI Vs. Sushanta Mukherjee & Ors. Page No. 73 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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Naresh; and not keeping their commitment. It has already come in the testimony of PW-34 that there were certain issues regarding pending payments etc. and that PW-34 was approached number of times to meet A-1, but, he avoided vide aforesaid conversation. A-1 expressed his displeasure about not taking care of the demands. PW-34 conveyed to A-1 that they were not able to sustain/ meet such demands made every month. On which, A-1 told PW-34 that in that case, even he (A-1) would not be able to help and asked PW-34 to take his own decision. PW-34 then responded as under :-
Call No. 38 (Ex.PW34/A) :
".........
..........
S. Mahendru: aap meri help kar do to main to
ek minute na lagau
S Mukherjee: ---jo commitment hai -
commitment rukti hai to
mere ko problem hoti hai
S. Mahendru: nahi nahi. Meri commitment na
kabhi ruki na rukne ke koi
chance hai
S Mukherjee: Abhi to --- is mahine to ruke
hai
S. Mahendru: nahi nahi dada main aapse last
ek request kar gaya tha ki mera
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ad hoc de dena aur kisi ka mat dena. Aur last order hamara chhod dena wo bhi nahi ho paya. Nahi wo meri har cheej jab jhootthi pad jaati hai to mai bhi aage bolne layak nahi rahta na. Mai aage kuch commit karta hoon ki yeh baat ho gayi hai aise aise ho jayega. Chaar hajaar hamari aise nikal jayegi, do hajaar aise nikal jayegi. Wo phir sara end me ruk jaata hai to vo mere ko bolte hai ki aapko kuchch pata nahi yaar kya ho raha hai phir tu kahta hai ki yeh bhi de do, woh bhi de do. Aapko pata hai ki mai to ab more or loss middleman hoon--- ab sab kuchch--
S. Mukherjee : I will not say anythings it is up to you, aap jo decide karo ............
............"
26.3 PW-34's version stands further substantiated by the tape recorded conversation Ex.PW34/A. From the above CBI Vs. Sushanta Mukherjee & Ors. Page No. 75 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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conversation, it is evident that PW-34 was complaining that neither his request for ad hoc (payment) nor that of release of purchase order in his company's favour, had been acceded to; and that he had to face embarrassment in company on that account; that company told him that he (PW-34) was not able to procure business/ get work done and keeps asking them to give "this and that" to the accused persons.
26.4 From the above evidence, it is established that the accused persons obtained, demanded/ accepted illegal gratification in cash/ kind for release of payment/ purchase orders to PW-34, agent for M/s Skol Beverages Ltd. 27.0 PW-20 Rajesh Malhotra was working as Salesman, with Oasis Distilleries Limited during the relevant time and deposed that he knew A-2 and had personal meetings with him and also spoke to him many a times on mobile and telephone. After hearing audio recording of his conversation with A-2 (in court) vide call number 28 dated 12.09.2007 and call number 31 dated 15.09.2007, the transcripts of which are Ex.PW20/A (D-50 Page 51) and Ex.PW20/B (D-50 Page 55), CBI Vs. Sushanta Mukherjee & Ors. Page No. 76 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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respectively, testified that A-2 was a close acquaintance; and that sometimes A-2 used to request for personal favour and sometimes he supplied A-2 with liquor bottles against payment. PW-20 was not cross-examined by either of the accused persons. Thus, admittedly A-2 was demanding and receiving liquor bottles sometimes, as personal favour, without payment.
27.1 Further, as PW-20 did not support prosecution version and simply stated that A-2 never bothered him, he was cross-examined by the State. PW-20 in his cross-examination by Ld. PP denied having stated to CBI that both the accused persons used to demand expensive wines/ scotch from the distributors including their company; and that the same was supplied to avoid harassment. PW-20's said denial is contrary to his statement u/Sec. 161 Cr.PC Ex.PW20/DA, (with which he was confronted), where it is so recorded.
27.2 In view of the above, it is established that A-2 demanded/ received liquor bottles by way of favour from PW-20/ Oasis Distilleries Ltd. In absence of any explanation in CBI Vs. Sushanta Mukherjee & Ors. Page No. 77 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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this regard, a presumption u/Sec. 20 P. C. Act can be drawn against the accused. [Discussion in detail in this regard has been made in para 49.0 and its sub-paras (infra)] 28.0 PW-21, Prabhjot Singh @ Sunny, Distributor of M/s Mount Shivalik Breweries Limited deposed that he used to supply Thunderbolt beer to different customers and he knew both the accused persons and had been dealing with them. He used to call A-2 now and then, but hardly talked to A-1. After hearing audio recording of call number 67 dated 04.10.2007, between him and A-2, transcript of which is Ex.PW21/A, PW-21 deposed that he had brought some personal things to be delivered to A-2, which were given by A-2's relatives based in Ludhiana. In his cross-examination by A-2, PW-21 has stated that he belongs to Jallandhar and has personal relations with A-2. Nothing has been placed on record by A-2 about the details of the said relative and the nature of personal things, which were delivered to A-2. Moreover, it has also remained unexplained as to how PW-21, who belonged to Jallandhar, brought personal things from A-2's relatives based in Ludhiana. Even in the recorded conversation Ex.PW21/A there is CBI Vs. Sushanta Mukherjee & Ors. Page No. 78 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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no mention of any relative from Ludhiana having handed over "things" for A-2. It simply mentions :
"......
Sunny : O samaan dena si yaar.
Amrik Singh : Hai. Aa jaa. Kitthe haige ho... Hello ......."
From the above facts, it is apparent that the explanation provided by PW-21, is just an eye wash. 28.1 As PW-21 resiled from his previous version, he was cross-examined by learned PP. In his said cross-examination, PW-21 denied that he stated to CBI that both the accused persons used to demand bottles of expensive wine and scotch from their company. He also denied that the same was supplied by them to avoid harassment. This denial of PW-21 is contrary to his version in his statement under Section 161 Cr.PC, Ex.PW21/G, (with which he was confronted), where it is stated that :
"...... Amrik Singh used to ask for bottles of whisky & beer and accordingly I had to give CBI Vs. Sushanta Mukherjee & Ors. Page No. 79 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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the same as per their demands as also gifts like Glasses, T-shirts etc. from time to time, so that they do not create impediments for me and do not harass me as they used to threaten us........"
28.2 In view of the above and in absence of any explanation from A-2, it is established that A-2 accepted certain things/ illegal gratification from PW-21, a supplier. Demand of Bribe in cash/ kind from Employees of DSIIDC 29.0 It is also alleged against accused persons that they were even demanding/ accepting bribe from employees of DSIIDC under threat of transfer to inconvenient places/ for favour of transferring them to choicest places or for continuing at such favourable postings. Let me now deal with the testimonies of employees of DSIIDC.
30.0 The fact that the employees were threatened to be transferred to far off places and were even transferred, on not meeting of accused persons' demands, is borne out from the testimony of PW-4, PW-7, PW-31, PW-39 and PW-40. CBI Vs. Sushanta Mukherjee & Ors. Page No. 80 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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31.0 PW-7 Rajbir Singh, Assistant Grade-I, IMFL, DSIIDC was posted as Shop In-charge, Defence Colony, New Delhi, during Sept., 2007 to Dec., 2007. He deposed that he knew both the accused persons and used to talk to A-1. PW-7 did not support the prosecution version and was cross-examination by State. In his cross-examination by the Ld. PP, PW-7 admitted that he was transferred to Rajendra Place, Delhi, which was located about 25 kms away from his residence. But, denied that he was transferred to a distant place as he did not meet the demand of Rs.20,000/- by the accused persons. 31.1 Further, after hearing call recorded on 08.11.2007, the transcript of which is Ex.PW7/B (D-50 Pages 248 to 249), PW-7 stated that he was in conversation with A-1 in the said call. But, denied that in the said conversation he was pleading with A-1 not to get annoyed with him, as he had paid Rs. 10,000/- as against the demand of Rs.20,000/- made by A-2. In response to cross-examination by A-1, PW-7 stated that word '10' in the recorded conversation was regarding 10 bottles of beer, which were taken away by A-2 for which payment was made by him (PW-7) out of his own pocket. CBI Vs. Sushanta Mukherjee & Ors. Page No. 81 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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He further stated that the said payment was later on made by A-2.
31.2 Let me refer to the aforesaid conversation Ex.PW7/B, relevant portion of which is reproduced hereunder :
".........
RB : Ve sardarji sir aaye the wo SM : kaun RB : Amrik Singh sir ........
RB : Ve dus to de diye the sir maine - ab ghar me to kuchch hai nahi sahab ek bhi ........
SM : mat do, maini kab kaha dene ke liye RB : Sir, naaraz mat ho, naaraz mat ho SM : maine kab kaha do ya, maine to nahi kaha do, tunhe RB : ve kah rahe the kal bees pahunchana hai - maine kaha SM : nahi, maine ko nahi kaha-- RB : dekh lena sahab aaj sambhal lena SM : hoon RB : mai hi pahuncha dunga aapke paas ........"
31.2.1 From the aforesaid conversation, it is evident that CBI Vs. Sushanta Mukherjee & Ors. Page No. 82 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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PW-7 is informing A-1 that A-2 had demanded '20' but he has given '10' as he did not have more. On which, A-1 got annoyed with PW-7; PW-7 then assured to give the balance.. Had the reference of '10' & '20' been to bottles, the conversation would have been "Dus to de 'di' hain" and not "de 'diye' hain". Even if PW-7's version is believed, he has stated that beer bottles were "taken away" by A-2. Whereas, in the conversation he stated that "Vo dus de diye the" i.e. he gave '10' to A-2. 31.2.2 Even in his statement u/Sec. 164 Cr.P.C Ex.PW7/A, PW-7 stated before Ld. MM that in Sept., 2007, when he was In- charge of liquor vend at Defence Colony, around Diwali, the accused persons demanded Rs.20,000/-; A-1 over telephone told him that he must meet A-2; PW-7 then gave Rs.10,000/-, to A-2 on his visit to his outlet. He refused to pay the balance amount of Rs.10,000/- and the same was informed to A-1, the next day. Subsequently, A-1 transferred him to Rajendera Palace, which was 30 km away from his residence, because of non-payment of the balance amount. PW-7 though admitted that he had made that statement before Ld. MM. But, further stated that it was made under pressure of IO. In view of the CBI Vs. Sushanta Mukherjee & Ors. Page No. 83 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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above, it is apparent that the said plea of PW-7 is just an attempt to wriggle out of his statement u/Sec. 164 Cr.PC. PW-7 even denied that he stated to CBI that Rs.20,000/- were demanded by accused persons regarding his transfer. Said denial is contrary to PW-7's version u/Sec. 161 Cr.PC, Ex.PW7/A, (with which he was confronted) wherein he has stated that he was transferred to a distant location - Rajendra Place at a distance of about 30 km from his residence at Khanpur because, he did not fully meet accused persons' demand of Rs. 20,000/-.
31.3 Having paid illegal gratification of Rs.10,000/-, there is an obvious attempt on the part of PW-7 to make-up a story, in order to safeguard his interest; and also to shield accused persons. It has already come on record that the witnesses were approached during trial.
32.0 PW-4 Prem Kumar Kalra, Assistant Account Manager, DSIIDC deposed that he was posted in the IMFL Division of DSIIDC during the period 2007-2008 and was deployed as Assistant Accounts Manager at DSIIDC shop at CBI Vs. Sushanta Mukherjee & Ors. Page No. 84 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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Multan Motors, Okhla Phase-II; thereafter, he was transferred and deployed at Lado Sarai, Shop No. 8. PW-4 stated that he knew A-2 being a colleague and dealing with administrative matters; they had been speaking to each other face to face as well as on mobile or telephone; he also knew A-1, who worked as OSD during 2007. PW-4 did not support prosecution version and stated that A-2 never demanded any money from him nor did he harass him with respect to his transfer or posting; nor did he threaten to get him transferred elsewhere. This is contradictory to what was stated by PW-4 before the Ld. Magistrate u/Sec. 164 Cr.PC Ex.PW4/A and also in his statement to the CBI u/Sec. 161 Cr.PC Ex.PW4/I, with which he was confronted.
32.1 The fact that PW-4 was under stress and anxiety while deposing and was not forthright, is evident from the witness's conduct during his deposition. It may be mentioned that PW-4 as per his deposition was retaining the same mobile number since 2007-2008 till the date of his deposition before the court i.e. 25.01.2012. But, he stated that he did not remember his mobile number; and thereafter, he stated that he CBI Vs. Sushanta Mukherjee & Ors. Page No. 85 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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is a heart patient and was feeling anxious. It is recorded in his testimony that the Ld. Predecessor Court offered water to the witness and asked him to relax. Thereafter, with the permission of the court, the Ld. PP suggested to PW-4 that his mobile number is 9899217139, which was admitted by PW-4. Same reflects on the demeanor of the witness. Learned Predecessor Court also noted the demeanor of PW-4 and made an observation in this regard in his order dated 11.10.2012, vide which A-2's bail was cancelled, in view of A-2 approaching the witnesses over phone.
32.1.1 Further, it is also significant to note that PW-4 although admitted that his statement was recorded by the Ld. MM u/Sec. 164 Cr.PC, but stated that he did not remember as to what did he state before the Ld. Magistrate. However, in his cross-examination by Ld. PP, PW-4 admitted that he had stated before the Magistrate that A-2 used to demand bribe from him and at times used to take away liquor bottles without payment. Thereafter, he voluntarily stated that he was very depressed during the relevant time due to the death of his wife. It is also noted that in his further cross- CBI Vs. Sushanta Mukherjee & Ors. Page No. 86 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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examination by Ld. PP, PW-4 admitted that he had signed his said statement after reading the contents and understanding the same. He also admitted that IO had been sent outside at the time of recording of his statement by the Ld. Magistrate. PW-4, however, denied that he stated before the Ld. Magistrate that A-2 used to threaten him to get him transferred to a far off place or to get initiated disciplinary proceedings against him unless his demands were met. PW-4 also denied that he had stated before the Ld. Magistrate that A-2 used to call him up to demand bribe in the currency notes of denomination of Rs. 1,000/-; and that A-2 used to demand Rs.10,000/- to Rs.20,000/- every month and that he kept on refusing on one ground or the other; and that he paid a sum of Rs.10,000/- to A-2, in Oct., 2007 to prevent his transfer/ to thwart a departmental enquiry; and that he also stated that A-2 had told him that he can get any work done with the help of A-1; and that A-2 had got transferred Rajbir, a colleague, as his demands were not met by Rajbir. When confronted with relevant portions of his statement u/Sec. 164 Cr.PC Ex.PW4/A, where it is so recorded, PW-4 stated that he cannot tell as to why such facts are mentioned in his statement before the Ld. Magistrate.
CBI Vs. Sushanta Mukherjee & Ors. Page No. 87 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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32.2 It may be also mentioned that although, PW-4 on one hand stated in his cross-examination by Ld. PP that he knew A-2 for last 20 years and had been dealing with him as a colleague, but refused to identify A-2's signatures on the transcript. PW-4 however admitted that vide transcript Ex.PW4/C (D-50 Page 56) (wrongly typed as Ex.PW4/B in testimony), A-2 called upon him to keep ready, money in red colour meaning thereby, in currency notes in the denomination of Rs.1,000/-. He then went on to explain voluntarily that in the said conversation A-2 was asking to keep Rs.1000/- currency notes converted into small currency notes to deposit the same in the Bank. PW-4 admitted that there is no mention in the said conversation that A-2 was bringing money in smaller denominations or that the said money was to be deposited in the Bank. PW-4's denial that he had stated before CBI that A-2 had been compelling him to give money before 10th of the said month is also contradictory to his statement u/Sec. 161 Cr.PC, where it is so recorded at portion ('X1 to X1'), with which he was confronted.
32.3 Reference to tape recorded conversations between CBI Vs. Sushanta Mukherjee & Ors. Page No. 88 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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PW-4 and A-2, transcripts of which are Ex.PW4/C, Ex.PW4/D and Ex.PW4/E, Ex.PW4/F, Ex.PW4/G, it is evident that PW-4 was referring to A-1 being upset and requesting A-2 to take care, who assured the same. A-2 asked PW-4 to keep the money ready in 'red' i.e. Rs.1,000/-. A-2 also told that he has to visit Sahab (A-1) and he had received only "8,000/-" from a party so far; A-2 asked PW-4 to 'arrange' before 10th. A-2 also commented on PW-4 that he was becoming smart and also gave him subtle threat that many persons were eyeing Lado Sarai; and asked PW-4 to make quick arrangement. PW-4 then told A-2 that the moment he gets payment, he always calls up A-2. A-2 also informed vide Ex.PW4/G that "Dada" (A-1) was also coming, asking PW-4 to make maximum arrangement and also asked him as to how much had Nathu (PW-10- Nathu Ram) handed over?
32.4 It would be relevant to mention here at the cost of repetition that A-2 had approached/ tried to influence the witnesses during trial. PW-4 was also examined in this regard by the Ld. Predecessor Court on 11.10.2012. PW-4 stated that he was using mobile no. 9899217139 for last four years and CBI Vs. Sushanta Mukherjee & Ors. Page No. 89 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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admitted that A-2 was having 9811235820. PW-4 did not deny having called up A-2 or having received phone calls from A-2. He simply stated that he cannot say if he had called A-2 and had conversation with him on 18.01.2012, 19.01.2012, 23.01.2012, 27.01.2012 and 30.01.2012 and on 31.07.2012. He further stated that he did not even remember whether A-2 had called him on 18.01.2012, 24.04.2012, 08.05.2012 and twice on 31.07.2012. But, from PW-4's own response that they talked about some other matter concerning the department and not about the present case, it is evident that A-2 and PW-4 were talking to each other during the trial. It is noted that PW-4' testimony was recorded on 25.01.2012 and 27.01.2012 and as per the call records, A-2 had called PW-4 on 18.01.2012 and PW-4 had called A-2 on 18.01.2012, 19.01.2012, 23.01.2012 and even on 27.01.2012, i.e., soon before and after the dates, on which PW-4's testimony was recorded.
32.5 From the conduct of PW-4, as discussed above, and that he was being approached by A-2/ was calling A-2 and the contradictory statements made by him before CBI, before the Ld. Magistrate and before this court, clearly points towards the CBI Vs. Sushanta Mukherjee & Ors. Page No. 90 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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fact that PW-4 was being influenced. PW-4 was anxious and nervous and was not stating the truth before the court. Considering PW-4's deposition, conversations between him and A-2 and other material on record, demand of money by A-2 and request for keeping it in Rs.1,000/- currency notes, is evident. Thus, as discussed in detail in Para 49.0 and its sub- paras (infra), presumption under Section 20 PC Act can be drawn against A-2.
32.6 The testimonies of PW-31, PW-39 and PW-40 shall be discussed in a while in subsequent paras. 33.0 The fact that A-2 was being approached by employees of DSIIDC liquor vends regarding their transfers/ posting at places of their choice or to stay posted at the existing/ suitable vends; and that A-2 was able to get them transferred/ posted, has come in the testimony of PW-8, PW-9, PW-10, PW-11, PW-12, PW-13, PW-14, PW-15 and PW-16. 34.0 PW-8 Narayan Dutt was working as an Attendant at liquor vend at Mahavir Enclave. He deposed that he knew A-2 CBI Vs. Sushanta Mukherjee & Ors. Page No. 91 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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and used to meet him twice or thrice in about 4 - 5 months and also used to have telephonic conversation with him. After hearing calls number 39 and 40, both dated 19.09.2007 (D-50, pages 70 to 74 and 75 to 76), the transcripts of which are Ex.PW8/A & Ex.PW8/B, respectively, PW-8 deposed that he is in conversation with A-2 in the said calls. He further stated that he did not remember in what context, the name of D.K. Sharma had cropped up in the said conversation. In his cross- examination by learned PP, PW-8 stated that D.K. Sharma referred to in the said conversation was another employee of liquor shop, who was working at Wine Shop at DSIIDC, Wazirpur. He denied that he stated to CBI that A-2 had asked PW-8 to collect six bottles of whisky from D.K. Sharma and to handover the same to local MLA. Said denial is contrary to PW-8's statement under Section 161 Cr.PC Ex.PW8/PA (with which he was confronted), where it is so recorded. 34.1 After hearing the recorded conversation vide Call No. 66, dt. 10.04.2007, the transcript of which is Ex.PW8/C (D-50 Pages no. 135 to 137), PW-8 stated that he was requesting A-2 about managing the transfer of 2 - 3 of CBI Vs. Sushanta Mukherjee & Ors. Page No. 92 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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his colleagues and that A-2 had promised him to do something about the same. But, denied that A-2 had demanded any favour from him for such purpose. The same is contradictory to PW-8's statement u/Sec. 161 Cr.PC, Ex.PW8/PA, wherein (at portion 'B to B'), it is mentioned that A-2 demanded bribe for managing the transfer of 2 -3 colleagues of PW-8. 34.2 Perusal of the Ex.PW8/C reveals that A-2 was telling PW-8 that he will inform him about the requirement a day or two prior to the work i.e. - "jab lena hoga tere ko 1 - 2 din pehle bata diya jayega". On which, PW-8 stated that - "Dono hain to dono na". A-2 then told PW-8 to dispose of the matter immediately, so that he can also further dispose of the work on Saturday - "...kam jaldi niptaiyo kal.... ho sake to kal nipta de. Shanivar ko main usko de bhi aun". From the same, it is apparent that the demand was made by A-2 and he had asked PW-8 to meet the same at the earliest, so that he could also give it further on Saturday.
34.3 After hearing recorded conversation vide call no. 125 dated 18.11.2007, the transcript of which is Ex.8/D (D-50 CBI Vs. Sushanta Mukherjee & Ors. Page No. 93 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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Pages-285 to 286), PW-8 stated that he was in conversation with A-2 and that accused demanded some bottles of whisky from him and that he had told A-2 to speak to Munim, the boy who perhaps was the head of the liquor shop, but, stated that he did not remember his name. On hearing further recorded conversation vide call no. 127 dated 18.11.2007, the transcript of which is Ex.PW8/E (D-50 Pages 290 & 291), PW-8 deposed that in his said conversation with A-2, A-2 had sent some boy to collect half bottle of whisky and two bottles of Blender's Pride for him. He then went on to state that he had paid the money for that.
34.3.1 The fact that liquor bottles were demanded and supplied to A-2 is not disputed by A-2 in view of the suggestion made to PW-8 in his cross-examination. But, PW-8 further admitted A-2's suggestion that whenever A-2 demanded/ was supplied any liquor bottles, he paid the sale consideration for the same. Let me refer to Call No. 125.
Call No. 125 (Ex.PW8/D) :
"......
AS : Namaskar baat kharaab karta rahio choti choti baat pe - ke baat hai?
CBI Vs. Sushanta Mukherjee & Ors. Page No. 94 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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......
AS : Bhejun - tu - tane phone to karna tha -
mere ko abhi aaya hai shaam tak mere ko pahunchna hai .....
AS : Ya to Deep Cinema me pahuncha main udhar se collect kar loonga .....
N : Munim ko kah do na ek baari
.....
AS : Tane mujhe na dharm sankat me daal
diya
N: na na aap de do main de doonga
subah
AS : Subah teri pata nahi - chakkar ye yahi
baat kah raha tha main kaha isi se collect kar ke karunga - tab jaunga N: to kisi se kar ke kar do main kar doonga subah AS : Abhi kahin jugad karta hoon dekhta hoon nahi to karna padega tujhe N: Theek hai - nahi to jeb me to hai hi ......."
34.3.2 In the aforesaid conversation from PW-8's response that "nahi to jeb me to hain hi", it is apparent that reference was made to money and not to liquor bottles. PW-8 was CBI Vs. Sushanta Mukherjee & Ors. Page No. 95 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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requesting A-2 to give from his own pocket or arrange from someone and assured to provide, the same (money), the next morning. Further, even from call number 127, it appears that reference was made to money. Besides money, A-2 also asked PW-8 to give to the boy sent by him, two bottles of Blender's Pride.
34.4 After hearing the recorded conversation vide call no. 150 dt. 12.07.2007, the transcript of which is Ex.PW8/F [D-50 Pages 336 & 337 (wrongly typed as 356 to 357 in testimony)], PW-8 stated that he was in conversation with A-2; A-2 had demanded two bottles of whisky but the same were not delivered by him. That is, the demand was made but the same was not met by PW-8.
34.5 In view of the above, it is evident that A-2 was being approached for managing transfers and A-2 had assured to help; and that A-2 was also demanding money/ liquor bottles; although, the witness has stated that payment for the liquor bottles was made by A-2 later. Onus was upon A-2 to demonstrate that the consideration for liquor bottles was paid CBI Vs. Sushanta Mukherjee & Ors. Page No. 96 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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subsequently. It is also noteworthy that PW-8 was examined by learned Predecessor Court as a court witness on 11.10.2012 for an inquiry about being approached by accused persons. PW-8 admitted that he was having conversation with A-2 during pendency of this case and must have called him couple of times. He however stated that he did not remember whether he had called A-2 on 25.01.2012 and whether A-2 had called him on 06.03.2012, as indicated in the call record. He could not recollect the subject of conversation between them, but denied that the A-2 had threatened him to depose in his favour. As per call record, PW-8 was contacted by A-2 on 25.01.2012 and 06.03.2012. PW-8 came for testifying in the court on 24.04.2012. The reason of PW-8 back tracking from his previous version is obvious i.e. to shield the accused person and to protect himself from being culpated as a bribe giver. 34.6 Considering the above facts and circumstances and conversations between PW-8 and A-2 in totality, it is evident that money/ liquor bottles were demanded and accepted by A-2. In absence of any explanation from A-2, presumption under law u/Sec. 20 P. C. Act, can be drawn against A-2 that the same CBI Vs. Sushanta Mukherjee & Ors. Page No. 97 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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were demanded/ accepted for favour of transfer. Detailed discussion in this regard is made in Para 49.0 and its sub-paras (infra).
35.0 PW-9 S.N. Wadhera, was posted as In-charge of the Wine Shop, DSIIDC at Panchsheel Park, New Delhi. After hearing recorded conversation vide call number 106 dated 11.08.2007, transcript of which is Ex.PW9/A (D-50, pages no. 243 and 244), PW-9 deposed that A-2 did not demand anything improper and illegal from him. In his cross-examination by learned PP, PW-9 denied that he wanted to get himself transferred to a place near his residence in Moti Bagh; and that in the said conversation, A-2 had instructed him to deliver few bottles of whisky to A-1 on the eve of Diwali without any payment. The said denial is contradictory to PW-9's statement under Section 161 Cr.PC Ex.PW9/DA, with which he was confronted. In Ex.PW9/DA, PW-9 has stated that in the said conversation (call number 106) A-2 had asked him to give some whisky bottles for A-1, on the eve of Diwali. PW-9 has also stated therein that he was asking for his transfer to a shop near his residence but, the transfer did not take place and he CBI Vs. Sushanta Mukherjee & Ors. Page No. 98 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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continued to remain posted at Panchseel Park, as he did not pay any money.
35.1 It would be pertinent to refer here to conversation between PW-9 and A-2 vide call number 106, Ex.PW9/A, the relevant portion of which is reproduced hereunder:-
Call No. 106 (Ex.PW9/A) :
"AS: Hello.
.......
SN: guru ji banda nahi aya apka. AS: vo aa jayega, problem to diwali ka hi hai na - aaj aa jayega.
......
SN: maine apse kabhi mana kiya hai.
AS: nahi humne tere ko kabhi galat kaha bhi nahi.
SN: nahi kabhi nahi kaha. AS: to fir, to jab zarurat padh gayi hai unko badi akasmik kyonki unko diwali pe mote mote logon ki fatig padhi hai.
......
AS: aur kuch seva mere layak. ......
SN: haan apko bhi - main kal karunga, apko guru ji hamara bhi karvaoge.
....
AS: saket theek nahi tha. SN: connection ki dukaan hai sale bahut down thi maine suna hai. ....."
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35.1.1 From the above conversation, it is evident that PW-9 requested for his transfer. On which, A-2 asked him "Saket theek nahi tha". Reference to "unko", in the conversation, is evidently to A-1, as even A-1 used similar words in his conversation with PW-13, telling, "De do mere isse zyada fatig hain itna logo ko mujhe dena padta hai ....". Thus, it is clear from the aforesaid conversation that A-2 had asked for something as 'A-1' needed it urgently. PW-9 assured "Vo aa jayega". Although, PW-9 stated that accused persons never demanded anything illegal. But, accused persons have failed to explain as to what was that emergent requirement of A-1 for meeting which, PW-9 was called; and that it was nothing illegal. 36.0 PW-10 Nathu Ram Yadav was posted as In-charge of DSIIDC Wine Shop at Malkaganj, Delhi. He has deposed that he knew both the accused persons, they being his seniors. He has also stated that he had been speaking to A-2 on mobile as well as telephone; he had also been meeting A-2 directly, as A-2 was residing in Malkaganj. After hearing (in the court), the recorded conversation vide calls number 01 dated 09.06.2007, call number 71 dated 06.10.2007, call number 142 dated CBI Vs. Sushanta Mukherjee & Ors. Page No. 100 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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28.11.2007, call number 152 dated 09.12.2007, transcripts of which are Ex.PW10/A (D-50, pages 1 and 2), Ex.PW10/C (D-50, pages 151 to 153), Ex.PW10/D (D-50, pages 322 and 323) and Ex.PW10/F (D-50, page 341), respectively, PW-10 deposed that he wanted to get himself transferred from Malkaganj Wine Shop to some place near his residence at Badarpur, New Delhi and had made a request to A-2 to help him out; and in call number 152 the discussion was regarding the fact that his transfer had taken place with A-2's help. In his cross-examination by learned counsel for A-2, PW-10 stood by his deposition and categorically denied that call no. 152 does not pertain to the discussion between him and A-2, regarding his transfer having been effected with the help of A-2. 36.1 In his cross-examination by Ld. PP, PW-10, however, denied that A-2 demanded money for that purpose. It is noted that PW-10 was confronted with his statement u/Sec. 161 Cr.PC Ex.PW10/DA, by Ld. counsel for A-2, in cross-examination and suggested that there is no mention of demand of money. But, perusal of Ex.PW10/DA reveals that there is specific mention that - "I had requested Sh. Amrik Singh for my transfer CBI Vs. Sushanta Mukherjee & Ors. Page No. 101 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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from Malkaganj to Sarita Vihar....I was transferred to Sarita Vihar... in the month of December 2007. He had demanded money for my transfer, but I kept on assuring him despite giving any money.... Although, I had given some bottles of whisky to them". Thus, PW-10's denial of having stated so before CBI, in his cross-examination by Ld. PP, is contradictory to his statement u/Sec. 161 Cr.PC. 36.2 Let me now refer to the other calls i.e. calls number 42 dated 19.09.2007, 148 dated 06.12.2007, 160 dated 14.12.2007 and 169 dated 15.12.2007, transcripts of which are Ex.PW10/B (D-50 Page 79), Ex.PW10/E (D-50 pages 333 to 334), Ex.PW10/G (D-50 Pages 360 to 362) and Ex.PW10/H (D-50 Page No. 175), respectively. After hearing the recorded conversation vide call no. 42, PW-10 deposed that he had taken a loan of Rs.20,000/- from A-2 and that he was having a conversation with A-2 regarding repayment of the same. With respect to call no. 148, PW2 deposed that the discussion in the said conversation was with respect to mutual loans taken by the staff members and repayment of the said loans. Regarding calls no. 160 & 169 also, PW-10 stated that these CBI Vs. Sushanta Mukherjee & Ors. Page No. 102 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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conversations were pertaining to the repayment of the loans he had taken from A-2.
36.2.1 It is noteworthy that in the abovesaid calls, the conversation is about the transfer of PW-10 and payment of money. Although, in his testimony PW-10 has stated that the said conversations about money/ payments were regarding loans taken from A-2/ its repayments, but, there is no mention of any loan in the said conversation. In his statement u/Sec. 161 Cr.PC when he was confronted by CBI with his conversation vide call Ex.PW10/G, PW-10 simply stated that he did not remember in what context he had stated that he suffered loss of Rs.20,000/-. He denied that the said loss pertained to supply of liquor bottles to A-1 without payment. 36.2.2 Reference to conversation between PW-10 and A-2 vide call number 160 Ex.PW10/G, the relevant portion of which is reproduced hereunder, also makes it clear that payment did not pertain any loan. PW-10 was also referring to payment of fees to someone; and was also assuring A-2 that he will pay to him, also as soon as the payment was received; there is no CBI Vs. Sushanta Mukherjee & Ors. Page No. 103 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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mention of any loan. It is also noted that A-2 even asked PW-10 to be ready for "his" (A-2's) duty on 31st December (New Year eve):
Call No. 160 (Ex.PW10/G) :
"AS: Hello.
...
AS: ha - vo kaam aaj nibtana hai - kisi bhi keemat - kisi bhi halat me. ....
AS: vo tunme teeh hai - par aaj ek dum urgency mein - tere ko savere kabhi phone kara maine.
SN: sahab vo to apki baat theek ha. AS: mere se number miss ho gaya tha, isliye to kara maine.
SN: sir - ap to - kal parson tak zarur karna, mai pehle ap hi ka kaam karne laga hun. Vaha bhi fees de aya hun. Vaha bhi, sabse mota ghata vo ho gaya hai.
AS: hai.
SN: vaha bhi jhatka lag gaya na bees ka.
AS: tu - ........ab ghate bharta ja, bharai karega to aisa hi kaam hoga aur kya hoga.
SN: nahi nahi maine kuch nahi kiya. ....
AS: sahab jaise hi payment - pehle apko dunga.
SN: nahi bete, vo to zarurat padti hai na......meri baat kharab karvayega.
....
AS: ab hamare upar galti obligation hai ....ab december vaili to meri duty karega tu -....jo ab 31 december ko ani hai.
CBI Vs. Sushanta Mukherjee & Ors. Page No. 104 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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SN: vo bhi kar dunga sahab vo bhi kar
dunga.
AS: ab ye kab karega, mere ko aj, kal ka di
nahi de iska.
SN: theek hai mai aj shaam tak hi
lagata hun, jugaad iska.
....
AS: mai raat ko karta par abhi kal aai hai,
isliye bol raha hun - haan.
SN: sahab ka extension ho gaya sahab.
....."
36.3 All the conversations made between PW-10 and
A-2, when considered in totality and read in conjunction with PW-10's testimony, clearly point towards the fact that the payments referred to in conversation, were towards consideration/ illegal gratification for getting the "work"/ (transfer) done.
36.4 It may be mentioned that even if for a while, PW-10's version that reference in conversation was to loan, is accepted. Same is not disputed by A-2 as he did not cross-
examine PW-10 this regard. Nothing has been placed on record by A-2 to show that he had given loan to PW-10/ other staff members. Further, no explanation has come forth from A-2 regarding giving of personal loans and whether the same were duly informed to his employer.
CBI Vs. Sushanta Mukherjee & Ors. Page No. 105 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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36.5 It is significant to note that A-2 had made a phone call to PW-10 on 21.04.2012 and PW-10's testimony was recorded on 25.04.2012. Even PW-10 was recalled for inquiry and was examined as a court witness on 11.10.2012, by the Ld. Predecessor court. PW-10 had stated that he did not recollect whether he made or received a call to/from A-2. His attention was drawn to the call made to A-2 by him on 19.12.2011 and A-2 having called him on 21.04.2012, as per the call record details. He expressed inability to recollect the same and the subject matter of discussion between them.
He admitted that he was junior to A-2, but denied that he received any threat from A-2 for deposing in his favour. In view of these facts and circumstances, reason for PW-10 resiling from his previous version is not difficult to find.
37.0 Even PW-11, Devender Kumar Gautam, who was posted as In-charge, DSIIDC Wine Shop, at Punjabi Bagh, has deposed that the recorded conversations between him and A-2 were regarding his transfer from Punjabi Bagh. After hearing the recorded conversation vide calls no. 99 dated 31.10.2007, call no. 138 dated 26.11.2007, call no. 141 dated CBI Vs. Sushanta Mukherjee & Ors. Page No. 106 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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27.11.2007, call no. 155 dated 11.12.2007, call no. 183 dated 17.12.2007, call number 185 dated 23.12.2007 and call number 187 dated 23.12.2007, transcripts of which are Ex.PW11/A (D-50 Pages 226 to 228), Ex.PW11/B (D-50 Pages 307 to 311), Ex.PW11/C (D-50 Pages 320 & 321). Ex.PW11/D (D-50 Pages 348 & 349), Ex.PW11/E (D-50 pages 402 to 405), Ex. PW 11/F (D-50 pages 409 to 411), Ex.PW11/G (D-50 pages 418 to 419), respectively, PW-11 deposed that his said conversations with A-2 were regarding his request for his transfer from Wine Shop at Punjabi Bagh to some other place, as sales had come down in the area due to metro construction and the area had become quite desolate; and that A-2 had assured him to look into it. Regarding call number 138, PW-11 stated that the said conversation was about transfer and A-2 had asked him to keep half litre bottles of whisky ready; vide call number 155, the conversation took place after he got transferred from Wine Shop Punjabi Bagh to Wine Shop near Odeon Cinema, CP, New Delhi; in call number 183, A-2 was talking about supply of half litre bottles of whisky of a particular brand, for which the money was sent by him later on. Call number 185 was also regarding supply of CBI Vs. Sushanta Mukherjee & Ors. Page No. 107 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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half litre bottles of whisky and that he (PW-11) had been able to arrange only twenty, whereas, the discussion was regarding making it at least twenty five. Call number 187 was with respect to the manner of payment to be made by the accused to PW-11.
37.1 Let met refer to relevant portion of call number 185 between A-2 (AS) and PW-11 , which reads as under:-
" : agar - ek aap se request thi sir.
.........
(PW-11): sir vo - a - maine jo khenchtaan ke jo kiye hai ........
: ap jaisa bhi karen fir mai karunga.
AS : bete vo sahab to aise mante hi
nahi, thoda thoda acha nahi
lagta fir bhi.
(PW-11): ......k paanch aur pade hai, chaho to 25 le ke aaunga ......."
37.1.1 From the conversation "maine jo khenchtaan ke kiye hai" and "paanch aur pade hai", it is apparent that reference is to money. Had it been bottles, it would have been CBI Vs. Sushanta Mukherjee & Ors. Page No. 108 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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" khenchtaan ke ki hai". On A-2 complaining that sahab (A-1) does not agree like that, PW-11 assured to arrange five more and to bring "25".
37.2 PW-11 was cross-examined by learned PP, as he did not support the prosecution version. In his cross-examination by learned PP, PW-11 admitted that he had supplied four half bottles of brandy to A-2 on 23.12.2007 through a boy named Lovely. PW-11 however denied that he had also delivered Rs. 25,000/- and half bottles of whisky to A-2 in consideration of his transfer. PW-11 also denied that he had told CBI that A-2 had demanded Rs. 25,000/- from him for his transfer from Punjabi Bagh to Odeon Cinema; and that the said amount was to be handed over to A-1 at the behest of A-2. The said denial is in contradiction to PW-11's statement under Section 161 Cr. PC, which is Ex.PW11/DA, with which he was confronted.
37.2.1 It is seen that PW-11 in his statement under Section 161 Cr. PC stated that A-2 helped him with his transfer through A-1. On 17.12.2007, he was transferred from Punjabi Bagh to CBI Vs. Sushanta Mukherjee & Ors. Page No. 109 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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Connaught Place. He had given Rs. 25,000/- as bribe to A-2 for onward handing over the same to A-1; he had also given four half bottles of brandy to A-2 on that day (23.12.2007) through one boy Lovely. The fact that bottles of whisky were supplied to A-2 by PW-11 has not been disputed, in view of suggestion made on A-2's behalf to PW-11 in his cross-examination. PW-11, however, admitted A-2's suggestion that A-2 used to make payment for the bottles of whisky supplied to him, which is contrary to his version u/Sec. 161 Cr.PC. 37.3 In view of the above facts and circumstances and as PW-11 was not cross-examined by A-2 in this regard, admittedly with the help of A-2 (through A-1), PW-11 was transferred from Wine Shop at Punjabi Bagh to Wine Shop near Odeon Cinema, CP. Further, the fact that A-2 demanded and accepted bottles of whisky/ money in lieu of such transfer is also borne out of the above evidence on record. 38.0 The fact that A-2 was very close to A-1 and acted as a conduit for getting done transfer/ posting of DSIIDC employees through A-1, is also borne out from the testimony of CBI Vs. Sushanta Mukherjee & Ors. Page No. 110 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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PW-12 Praveen Rai/ tape recorded conversations between A-2 and PW-12. PW-12 was posted as In-charge of DSIIDC Wine Shop, Odeon Cinema, Connaught Place, New Delhi during the period November 2006 to December 2007 and thereafter, at Liquor Shop at Saket upto December 2008.
38.1 PW-12 deposed that he knew both the accused persons. After hearing call number 23 dated 10.09.2007 and call number 24 dated 11.09.2007, the transcripts of which are Ex.PW012/B and Ex.PW12/A, respectively, (D-50, Pages-39 to 41 and Pages-43 to 45, respectively), PW-12 deposed that his conversation with A-2 in the said calls was regarding his joining in IMFL Division of DSIIDC on resumption after a long leave; and that he was requesting A-2 for his joining at the same outlet at Odeon on resumption of his duties. 38.2 Regarding calls number 98 dated 31.10.2007, number 137 dated 25.11.2007, number 139 dated 26.11.2007, number 140 dated 27.11.2007, numbers 143 & 144, both dated 02.12.2007, number 146 dated 03.12.2007, number 147 dated 04.12.2007, number 149 dated 07.12.2007, number 151 dated CBI Vs. Sushanta Mukherjee & Ors. Page No. 111 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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08.12.2007, number 156 dated 11.12.2007 and numbers 157 & 158, both dated 12.12.2007 transcripts of which are Ex.PW12/C (D-50, Pages 224 and 225), Ex.PW12/D (Pages 302 to 306), Ex.PW12/E (Pages 312 to 316), Ex.PW12/F (Pages 317 to 319), Ex.PW12/G (Pages 324 & 325), Ex.PW12/H (Page 326), Ex.PW12/I (Pages 329 to 331), Ex.PW12/J (Pages 332), Ex.PW12/K (Page-335), Ex.PW12/L (Pages 338 to 340), Ex.PW12/M (Page 350 to 352), Ex.PW12/N (Pages 353 & 354) and Ex.PW12/O (Pages 355 and 356), PW-12 deposed that he was conversing in these calls with A-2 regarding his transfer to Saket or any nearby area as he was residing in Khirki Extension, but was posted at shop near Odeon Cinema; he wanted his transfer to some Wine Shop at Saket. He also deposed that the power to transfer employees/ staff of DSIIDC from one place to another vested with A-1 Sushanta Mukherjee. PW-12 also explained that the person "Dada" in his aforesaid conversations with A-2, was A-1 Sushanta Mukherjee. PW-12 further stated that reference to "packet" in conversation vide call number 146 dated 03.12.2007 was regarding certain gift items to be given to A-1 Sushanta Mukherjee. PW-12 also stated that he was CBI Vs. Sushanta Mukherjee & Ors. Page No. 112 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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never asked to pay any money as bribe to accused persons, but was told by A-2 Amrik Singh to deliver to A-1 Sushanta Mukherjee, some gift items and he did accordingly. In his cross-examination by A-2, PW-12 categorically denied that he has wrongly identified the voice of A-2. He also denied that he has deposed under fear of CBI, thus standing by his version.
38.3 As PW-12 did not fully support the prosecution version of demand of money by the accused persons for transfer, he was cross-examined by prosecution. In his cross- examination by learned PP, PW-12 admitted that in call number 146, it is recorded that he had delivered a packet containing "twenty" to A-1 Sushanta Mukherjee, but then (voluntarily) stated that the said packet was not accepted. PW-12, however admitted that the fact that the "packet" was not accepted by A-1 Sushanta Mukherjee does not appear in the said conversation.
38.3.1 Perusal of aforesaid conversations between PW-12 and A-2 reveal that matter of transfer was being discussed; A-2 CBI Vs. Sushanta Mukherjee & Ors. Page No. 113 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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assured to get PW-12 posted at the place of his choice; A-2 also detailed the efforts made by A-1 in this regard. Relevant portion of said conversations between A-2 and PW-12 is reproduced here :
Ex.PW12/I (Call No. 146) :
"........
AS: Achcha- Achcha- chalo - wo packet rakh aaye na--
PR: Haan wo rakh aaya sir-- AS: Aen-
PR: We - rakh - bole ke mujhe kyon de rahe ho--
AS: Haan--
PR: Maine kaha sir mujhse to aap -
hi lete the -
AS: Haan -
PR: Aapko hi main diya hoon - AS: Achcha - achcha - achcha - PR: we chalne ke samay rakh diya maine - maine kaha ji aapca... bachcha hoon - ap aap chahe jaise rakhe -
AS: Haan - theek hai -
PR: Theek bol diya na bhaiya - AS: Haan theek hai - rakh kitne aaye the - 30 rakh aaye the - kitne -
PR: Bhaiya mere paas 20 ki vyavastha ho gayi thi, 20 main poore rakh aaya tha - AS: Achcha - achcha - achcha chalo koi baat nahi main apne aap kar loonga -
PR: Ji bhaiya ab baaki ab thoda dekh lijiyega AS: Theek hai main dekh -
........ ...................... ...... .......... ............."
CBI Vs. Sushanta Mukherjee & Ors. Page No. 114 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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(AS - is A-2 and PR is PW-12 in this conversation) ............"
Ex.PW12/E (Call No. 139) :
".......
AS : Aiyen - token wa ho gayi - kaam to --- to hoi gayi PR : ho gaya ........
PR : Achcha AS : MD to ok kar gaye ............
AS : To ye AD bada kalpa tha --- na wahan jaake ...........
AS : Din me bola tha usse ki posting transfer mere haath me honi chahiye PR : Achcha AS : to - MD ne kaha bhai aisa hai jiski dukaan hai usko pata hai ki kya labour lagaani hai ............
AS : Haan-- to he chakkarbabji hai.....
koshish badi ki - kari hai .....
AS : Lal Kuan bhejne ki ....
AS : To --- phir aapka karva diya ......
AS : Dada MD ke paas baith gaya .......
AS : Aur - mere khayal - sawere jo hai order nikal jayege .....
AS : Kyon ji nahi to hamari kya fitrat thi - ek to ghar ke pass rahiega - hai nahi .....
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AS : Ghar ke nazdeek ho jayega--
hain
PR : Haan - ghar ke to kaafi
nazdeek hai
......
AS : ....... Hamari jo izzat - jo aapko
vachan diya tha - wo poora
kar diya - isi year me ---
December se pahle pahle - aiyen
.......
AS : Hoon - to ab aap jaiye - apna
maal-waal khench ke kaam
kijiye first class - aur dada ko
ye shikayat ka mauka na
aaye ---
.......
.....
AS : Kal dopahar tak file aa jaayegi -
shaam tak order nikal jaayega
......
AS : Jaise hi niklega - wo aapke yahan
aayega aap aage move kar
jaayenge
......"
Ex.PW12/F (Call No. 140) :
".....
PR : aaj kya hua --- aaj nikli nahi kya-- AS : wo actual daak nikali nahi thi na MD sahab ne ......"
Ex.PW12/G (Call No. 143) :
"...........
AS : Aur aise kya - jab ho jayega kaam - tab wo dusra kaam kar dena -- abhi aise hi - hello hi kar do ......."
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Ex.PW12/H (Call No. 144) :
"....
PR : Sahab to nikal gaye hai --- bhaiya pahle ki kahin ..........
AS : Chalo ko nahi - savere dekh lena -
shaam ko koi dikkat nahin PR : Shaam ko ek chakkar dekh lunga ........"
38.3.2 From the above, it is evident that vide call number 146 (Ex.PW12/I), PW-12 informed A-2 about his conversation with A-1 and leaving of "packet" with him. It is also evident from the said conversation that the packet of twenty was kept with A-1 and there is no mention of the same having not been accepted by A-1. PW-13's version that the packet was not kept, is thus inconsistent with Ex.PW12/I. The same is an obvious attempt on the part of PW-13 to safeguard his interest from being culpated as bribe giver and to protect the accused persons.
38.4 The fact that PW-12 was won over by accused persons is also apparent from the fact that A-2 was found to be in touch with PW-12 during the pendency of trial; PW-12 was examined by the learned Predecessor Court on 11.10.2012, CBI Vs. Sushanta Mukherjee & Ors. Page No. 117 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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wherein it was admitted by PW-12 that he had conversations with A-2 once on 26.04.2012 and perhaps even later. He however stated that he could not recollect whether A-2 had called him twice in the morning of 26.04.2012, on the date on which his testimony was recorded and twice later in the day on 26.04.2012. In view of said admission, reference is made to call record of A-2 and PW-12, placed on record by IO. 38.4.1 PW-12 came to depose before the court on 26.04.2012. As per aforesaid call record, A-2 called PW-12 on 25.04.2012 in the afternoon that is, a day before and on 26.04.2012 at 09:47:01 am, i.e., just before his deposition in court and thereafter, at 13:16:35 pm, on the same day. Even PW-12 called up A-2 twice on 26.04.2012 at about 10:45 am. Thereafter, A-2 again called up PW-12 on 03.05.2012, before PW-12 was examined further on 29.05.2012. In view of the same, and witnesses including PW-12 turning hostile and considering other evidence/ call record, it is apparent that the witness was influenced and won over. PW-12's statement that he just had a general discussion with A-2 and that he was not influenced by the accused persons regarding his deposition in CBI Vs. Sushanta Mukherjee & Ors. Page No. 118 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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the Court, cannot be bought in view of these facts and circumstances.
38.5 Taking into account the above material in entirety, it stands established that pursuant to his request to A-2, PW-12 was transferred to his place of choice i.e. Saket, with the help of A-1. At the asking of A-2, PW-12 admittedly delivered gift items/ a packet, in lieu of his transfer, to A-1 containing "twenty", as much as he could arrange, as against demand of "thirty"; and words "twenty"/ "thirty" referred to money. 38.6 In view of the above material on record, Ld. defence counsel's argument that the accused persons had no say in transfer as there was a well defined procedure and policy for transfer/ postings, is stated only to be rejected. It would also be not out of place to mention here that PW-12 categorically asserted in his cross-examination that there was no fixed criteria for posting of employees at any particular outlet of DSIIDC.
39.0 The fact that A-2 acted as front for A-1 and used to CBI Vs. Sushanta Mukherjee & Ors. Page No. 119 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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make demands of money at the behest of A-1, has also come in the testimony of PW-13 Suresh nand Juyal. PW-13, who was posted as In-charge of DSIIDC Wine Shop, Shahadra, near Border deposed that he knew both the accused persons. After hearing the recorded conversation vide call number 61 dated 28.09.2007, transcript of which is Ex.PW13/C (D-50 Page-122 to
125), PW-13 deposed that vide said conversation with A-1 S. Mukherjee, he was seeking clarification from him (A-1) regarding certain demands of money made by A-2 telling that such demands were being made on his (A-1) behalf; and that he told A-1 that he was disturbed that A-2 was demanding money from time to time telling him that the same were at the behest of A-1; and he also told A-1 that he (PW-13) had already sent Rs. 40,000/- to someone in M- Block Wine Shop.
39.1 It is noteworthy that PW-13 in his examination-in- chief, after seeing his statement under Section 164 Cr PC Ex.PW13/E, stated that he had disclosed all the facts truthfully to the learned MM. He also stated that the same were read over and explained to him by the learned MM and he had signed the CBI Vs. Sushanta Mukherjee & Ors. Page No. 120 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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same only thereafter. PW-13 stood by the same in his cross- examination by learned counsel for A-2 and categorically denied that he had made the said statement under duress of CBI. He also denied that he has deposed falsely (before this court) on being threatened by CBI and that he has wrongly identified the voice of A-2. It would be pertinent to refer here to the relevant portion of PW-13's statement under Section 164 Cr.PC, which reads as under:-
"At that time, S. Mukherjee was working as OSD and he was In-charge of IMFL and Amrik Singh, who was very close to him was Enforcement Officer. Amrik Singh in last week of August called me up and asked me to pay Mr. Sudarshan Sharma of N Block Wine Shop, Connaught Place for some purchase made by Amrik Singh for some party. I felt that Amrik Singh was demanding that payment for S. Mukherjee. I avoided the payment on one ground or other. In first or second week of September, he called me again.... he demanded money and asked me to send money to Mr. Sudarshan. I lied to him to avoid payment.... But, I stated to him ..... I shall make tomorrow. Thereafter, I called Mr. Sudarshan and asked the amount, he replied CBI Vs. Sushanta Mukherjee & Ors. Page No. 121 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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that Rs. 40,000/- have to be paid. Under fear of transfer or false departmental inquiry that too near to my retirement, I decided to pay that amount to Sudarshan and made payment in three installments. To check whether payment was for Mukherjee, I called up Mukherjee in last week of September and told him that as per direction of Amrik Singh, I had made payment of Rs. 40,000/- to Mr. Sudarshan. However, he said that he was not aware about the same. He further said to me not to talk to Amrik Singh and that he will talk to Amrik Singh. Being annoyed I also said to him that you may directly take the money from me, however Mukherjee refused stating that if you have paid to Amrik Singh, then no requirement to pay again. Being divisional head I had informed Mukherjee".
PW-13's version before the court is corroborated by his statement u/Sec. 164 Cr.PC.
39.2 The facts that PW-13 had received a call from A-2 calling upon him to make payment of Rs.40,000/- without any delay to Sh. Sudarshan Sharma and that he paid the said CBI Vs. Sushanta Mukherjee & Ors. Page No. 122 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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amount to Sudershan Sharma, are not in dispute as A-2 himself suggested the same to PW-13 in his cross-examination, which were admitted by PW-13. But, it was further suggested to PW-13 that the said payment was towards supply of foreign liquor brand worth Rs.40,000/- to one of PW-13's friend from the Wine Outlet at N Block, Connaught Place; and since he (PW-13) did not have money to pay the same, A-2 had stood as guarantor for the said supply; and that A-2 had called up PW-13 to ask him to pay the said amount of Rs.40,000/- to Sudarshan Sharma, who had complained against him to A-2; on which, PW-13 paid Rs.40,000/- to Sudarshan Sharma. Same was admitted by PW-13. PW-13's said admission is contradictory to PW-13's version u/Sec. 164 Cr.PC, which he admitted to be true statement of his. Same is also contrary to his version before the court, while explaining the admitted conversation vide transcript Ex.PW13/C. 39.3 It would be pertinent to refer here to relevant portion of the said conversation/ transcript Ex.PW13/C, which is reproduced hereunder :
"S. Mukherjee : Haan S. N. Jual : Bol Jual bol raha hoon CBI Vs. Sushanta Mukherjee & Ors. Page No. 123 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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.........
S. N. Jual : Amrik ne mujhe phone karke kaha tha ki Sudershan ke yahan kuch bhijwa de .........
S. N. Jual : Wahi to main kah raha hoon.
Main Sudershan ke yahan chalees hazaar rupye de ke aaya hoon sir S. Mukherjee : De do mere isse zyada fatigue hai itna logo ko mujhe dena padta hai main pareshan rahta hoon bas .........
S. N. Jual : Main to sir - aage se aap mere se rakho dealing S. Mukherjee : Theek hai .........
S. Mukherjee : Nahin maine usko kaha nahin ki tumhare paas jayega baat karne na karne, usne kar liya to - jab usne kar diya to ye meri jimmedari banti hai ki main usse apne aap baat kar loonga .........
S. Mukherjee : ....... main baat kar loonga .........
CBI Vs. Sushanta Mukherjee & Ors. Page No. 124 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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S. Mukherjee : Haan chalo koi nahin koi nahin main aaj hi pata karta hoon abhi ........."
39.3.1 From the above conversation, it is evident that there is no reference in the entire conversation to any liquor supplied to PW-13's friend or that A-2 stood guarantor for the same. Rather, from the conversation it is crystal clear that the said amount of Rs.40,000/- was meant to be passed on to A-1. PW-13 even requested A-1 to deal directly with him; on which A-1 assured PW-13 not to worry, if he had paid to A-2; he assured that he himself will talk to A-2.
39.4 In view of the above, it is more than evident that PW-13's admission in his cross-examination by A-1 that he used to call A-1 only for official business; and that there was no conversation between him and A-1 regarding payment of bribe; and the story of payment of Rs.40,000/- for liquor supplied to PW-13's friend, is just a sham. The effort on the part of PW-13 to safeguard himself from being prosecuted as a bribe giver and to shield the accused persons, is apparent. The reason for CBI Vs. Sushanta Mukherjee & Ors. Page No. 125 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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PW-13's attempt to wriggle out of his earlier consistent versions, can also be found from the fact that A-2 had been contacting witnesses during trial and influencing them. 39.5 In view of the above, the onus was upon the accused persons to demonstrate the purpose of demand/ receipt of Rs.40,000/-, which they have failed to discharge. The presumption as per Section 20 of P. C. Act can be drawn against them.
40.0 PW-14 C.P. Singh, Assistant Accounts Manager was posted in Works Division, Technical Center, Wazirpur, New Delhi from May 2007 till December 2007 and thereafter, transferred to IMFL Division, DSIIDC, Baba Kharak Singh Marg; he was further transferred to Liquor Shop at Kalyan Puri; In September 2008, he was posted as In-charge, Liquor Shop, Paschim Vihar. From his testimony also, it is evident that A-2 was approached by employees of DSIIDC for their transfer/ posting by virtue of his proximity to A-1; and A-2 used to get done the transfer/ posting of the employees through A-1, for illegal gratification.
CBI Vs. Sushanta Mukherjee & Ors. Page No. 126 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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40.1 PW-14 deposed that he knew both the accused persons and that he had spoken to A-2 over telephone, number of times, in connection with personal as well as official matters. After hearing calls number 197 dated 28.12.2007 and number 199 dated 29.12.2007, transcripts of which are Ex.PW14/A (D-50, Page-449) and Ex.PW14/B (D-50, Pages 454 to 461), respectively, PW-14 deposed that in the said calls, he was in conversation with A-2 regarding his transfer from Technical Center, Wazirpur to IMFL Division; that during the aforesaid conversation, his wife also thanked A-2 for his transfer. As PW-14 did not support prosecution version, he was cross-examined by prosecution. In his cross-examination by learned PP, PW-14 admitted that pursuant to his request to A-2 to get him transferred, he was helped by A-2; he was transferred in December 2007 to IMFL Division. PW-14 stood by his deposition in his cross-examination by learned counsel for A-2 and categorically denied that he wrongly identified A-2's voice and that no such conversation ever took place between him and A-2.
40.2 But, in his further cross-examination by Ld. PP, CBI Vs. Sushanta Mukherjee & Ors. Page No. 127 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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PW-14 denied that he had told the IO that A-2 demanded Rs. 30,000/- as bribe for getting him posted to liquor shop telling him that the same was to be paid to co-accused S. Mukherjee (A-1). He also denied that there is even reference to demand of Rs.30,000/- in the conversation, vide transcript Ex.PW14/B. PW-14 explained that reference to "30" in the conversation was not with regard to any demand of bribe. PW-14 further stated that the conversation "I had 20 and I would have to arrange 10 more from other source" meant that he was to arrange some liquor bottles for a party to be thrown by him to felicitate/ show his gratitude to A-2 and he had sent twenty half bottles to A-2. This explanation of PW-14 is not borne out from the record and is evidently an attempt to shield the accused. The relevant portion of the above said calls is reproduced hereunder:
Call Number 197.
"AS: Abhi Abhi Mile Hain Ji.
CP: Order.
AS: Haan Ji.
AS: Mere Bete Khush Hai.
CP: Sahab Malik Ho AP Main To Sab Kuch
Apke Upar - Sab Kuch Apke Upar Hi
Hai Bas. ...
AS: Theek Hai NA - Ja Ghar Mithai Ka
Dabba Leke Ja Apne ..."
CBI Vs. Sushanta Mukherjee & Ors. Page No. 128 of 174
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Call Number 199 "CP: Sir Apne 9:30 Ko Kaha Tha Phone Ke Liye.
AS: Haan Haan Haan Haan. ... AS: Aur Beta Bachon Ko Mithai Vithai Khila Di Tune. ...
CP: Haan Sahab - Are Sahab - Order Mil-
Tehelka Mach Gaya Hai Sahab - Log Aise Soch Rahe Sahab Pata Nahi Ye Kya Ho Gaya Hai. .. AS: Haan Sab Ro Rahe Hain. ... AS: To Tuhje Bhi Tekna Hai Matha - Tu Uski Tayyari.
CP: Kaise Karni Hai Ap Bata Do Zara. AS: Bahut Zyada To Nahi - Jo Piche Kiya Tha Vo Vala To Nahi - Maine Kam Kara Diya Hai Us Se.
CP: Kitna Karna Hai Ji.
Portion X-1 :
"AS: Bete Vo Abhi Aye Nahi - Bataya To Hai Unhone - Abhi Vo - Matlab Tu 30 Ka Arrange Le Ke Chaliyo.
CP: 30 Ka.
AS: Haan Haan. ....
.............."
Portion X-2 :-
"CP : Haan ji hila diya - haan ji sir - to to sir actually kya hai ji actually wo aisa hai ji 20 to pade hi hai 10 main aur kar deta hoon - kahin se karke - theek hai ji"
Portion X-3 : -
CBI Vs. Sushanta Mukherjee & Ors. Page No. 129 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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"AS : Haan kal ghar hi aa jayio CP : Theek hain na ji AS : To phir main sahab ko - sahab ka nipta doonga - hain CP : ji sir - ji sir - ji sir"
"..........
...........
AS: Aise Vo Current Ka Kaam Tha Ja Rahe The Kisi Or Ka Karane. CP: Ji.
AS: Maine Kaha Isko Kata, Banda Apna Hi Hai.
CP: Nahi Koi Nahi Sir - Aisi.... AS: Hume To Jab Tu AA Jayega Kama Kha Ke - Jo Dil Maane Vo Karta Rahiya.
CP: Ji Sir - Ji Ji.
AS: Hume Kuch Nahi Chahiye - Tu Ek Bas Enter Kara Le Bas Bahar Ke Kutte Aane Se To Hamara Ek Baccha Chala Jaye Theek Nahi Hai. ...
AS: Itne Hisab Me The vo - Maine Kaha Nahi Ji Nahi - Abhi Vo Jaise Jayega Na
- Fir Sath Ke Sath Dekhenge - Abhi Uska Itna Kar Do - Ha. ...
CP: Acha Sir - Dukan Kaun Si Kara Rahe Ho - Ab To Mai Bahut Senior Ho Gaya Hun Pehle Se.
AS: Tu Senior Ho Gaya Pehle Se. CP: Nahi Nahi - Mai.
AS: Fir Take Over - Baat Samjh Zara -
Shikayte A Jayengi Das.
CP: Ha.
AS: Lakh Plas Vali Pe Bhejenge Tujhe Filhaal...
AS: Abhi Itni Utawli Mat Kar. CP: Chalo Acha.\ AS: Ek Vali Pe Bhejenge Uske Baad Tujhe Day Flight PeUda Denge. CP: Acha Abhi to 1+ Vali Pe Bhej Rahe Ho CBI Vs. Sushanta Mukherjee & Ors. Page No. 130 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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Ji.
.........
CP: Theek Hai Ji - To Kal Subah - Ghar Pe Aa Jaunga Ji.
AS: Ae- Haan Savere Aa Ja. CP: Hai Na Theek Hai - Thank You Sir."
40.3 From portions "X-1" and "X-2" of the conversation (with which PW-14 was specifically confronted by Ld. PP) particularly "20 to pade hain", it is apparent that reference is made to money. Had it been liquor bottles it would have been "20 to padi hain". PW-14 talked about arranging balance "10" from some other source. Even if for a while, PW-14 is believed that reference to "twenty" & "thirty" was to liquor bottles, it stands substantiated that A-2 asked PW-14 for '30' and PW-14 could arrange "twenty"; PW-14 gave "twenty" bottles of liquor to A-2 as gratitude/ gratification for getting him transferred/ posted at the place of his choice and which was accepted by A-2.
41.0 The demand and acceptance of illegal gratification in cash by A-1 is also borne out from the testimony of PW-15 Rajender Prasad Bali, Deputy Manager, DSIIDC, who was posted as In-Charge, Wine Shop, Upadhyay Block, Shakarpur, Vikas CBI Vs. Sushanta Mukherjee & Ors. Page No. 131 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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Marg, New Delhi from October 2007 to November 2007. He has deposed that he knew accused persons and had been speaking to A-1 personally as well as telephonically in connection with business and personal matters. PW-15 outrightly denied being examined by IO and that his statement was recorded. He also denied that he was made to hear any tape recorded conversation between him and A-1. However, on playing CD Mark Q-1 - Ex.P-1, in court and on hearing calls number 103 dated 03.11.2007, 190 dated 25.12.2007 and Call No. 195 dated 27.12.2007, PW-15 stated that in the said recordings, he was in conversation with A-1 and also admitted that he had signed the transcript of the said conversations, which are Ex.PW15/A (D-50, Pages 237 and 238) and Ex.PW15/B (D-50, Pages 428 and 429) and Ex.PW15/C (D-50, Pages 437 to 445 [wrongly typed as 435-447]), respectively. But, he further stated that he did not remember in what context the said conversation had taken place.
41.1 It is noteworthy that the learned Predecessor Court had made an observation with respect to the demeanor of the witness to the effect that the witness is very smart and CBI Vs. Sushanta Mukherjee & Ors. Page No. 132 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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appears to be deliberately suppressing the truth. 41.2 In his cross-examination by Ld. PP, PW-15 with respect to Call No. 103/ transcript Ex.PW15/A, did not deny the conversation between him and A-1; he simply stated that he cannot admit or deny that in the said conversation with A-1, he was talking to A-1 regarding his demand of Rs.25,000/-, in order to allow him to remain posted as In-charge of IMFL shop, as he did not remember anything. He, however, admitted that in the said conversation A-1 instructed to pay "50" to Sudershan Sharma. It is interesting to note that on his own, PW-15 then voluntarily went on to state that "50 did not mean Rs.50,000/- and I do not remember in what context the word 50 was used". Nobody had suggested to PW-15 that "50" meant "50,000". It is only later, that the Ld. PP suggested to PW-15 that '50' was used in the context of Rs.50,000/-, which was instructed by A-1 to be delivered to Sudershan Sharma at his (A-1's) behest, which he denied. PW-15 also denied that he stated to CBI that instead he had sent Rs.15,000/- to Sudershan Sharma, on which A-1 was annoyed with him and threatened to shunt him to some remote place. PW-15 rather, stated that no CBI Vs. Sushanta Mukherjee & Ors. Page No. 133 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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such statement of his was recorded by CBI. Ld. PP placed on record PW-15's statement u/Sec. 161 Cr.PC Mark 15/PA (in which the above facts appear in portion 'A to A'). PW-15's feigned memory loss and outright denial of his previous statement is an obvious attempt to wriggle out of the situation, as is made out from discussion in following paras. Reason for the same is not difficult to find.
41.2.1 Reference is made to the aforesaid admitted conversation, contents of which are not disputed by accused persons. Relevant portion of the same reads as under:
Ex.PW15/A (Call No. 103) :
"......
SM : Chalo very good, haan, philhaal aisa kariye pandit ke paas pachas bhijwaiye RB : Hain Ji SM : Pandit ke paas paas pahunchiye---
Diwali ki-----
Sudershan SM : Haan, usko pachas dijiye, Diwali ki fatig hai wo jaana hai RB : Hain ji SM : Diwali ka saamaan jana hai .....
CBI Vs. Sushanta Mukherjee & Ors. Page No. 134 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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RB : Pachchis se pachas aa gaya hai .......
SM : Pachas hai --- pure pata hai kal das lakh ke jayege .......
SM : Haan, das lakh ke saamaan ja rahe hai, jaante hai RB : Jee janaab SM : Tu yahan pachhis pachhis karke shor macha raha hai RB : Maalik ho janaab, jo marji, karo sir - aap khush ho SM : --- Maine kya khush hona hai --- maine kya khush hona hai --- mai to --- Reserve Bank of India bana hua hai, idhar aa raha hai udhar ja raha hai ....."
41.2.2 PW-15 has admitted that vide said conversation '50' was to be paid to Sudershan Sharma, as per A-1's instructions. From the aforesaid conversation, it becomes clear that A-1 asked PW-15 to deliver Rs.50,000/- to Sudershan (Pandit). Rather, A-1 got annoyed when PW-15 lodged protest that the amount has been increased from '25' to '50'. A-1 even provided reason behind such increase in the demand and told PW-15 that 'saman' worth Rs.10 lacs were to be given on the occasion of CBI Vs. Sushanta Mukherjee & Ors. Page No. 135 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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Diwali and PW-15 was talking of 'twenty five'. 41.2.3 Regarding conversation vide call no. 195 Ex.PW15/C, PW-15 denied that he was threatened by A-1 to either pay Rs.50,000/- or else face dire consequences. He, however, admitted that he (PW-15) had told A-1 not to advance threats to him, but then (voluntarily) explained that the threat by A-1 was in connection with increase of sale turn- over in liquor shop and to achieve the target of 20%. He denied that in the said conversation A-1 was threatening him for not obliging him with demanded illegal gratification. Even, further suggestion that, the discussion regarding payment of "4", at portions 'X-1' and 'X-2' of the conversation was in respect of demand of bribe by A-1 and that he (PW-15) was negotiating with A-1 to reduce the demand of bribe, was not denied by PW-15. He simply stated that he could not admit or deny, as it happened long time back. He also stated that he could not tell in what context "4 -4" was uttered in the portion Mark X-1 and X-2" of the aforesaid conversation. However, PW-15 admitted that the mention of "I could rather give six" at portion 'X-3' could imply that he (PW-15) could give six bottles or CBI Vs. Sushanta Mukherjee & Ors. Page No. 136 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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anything but it was not in the context of giving bribe. PW-15 was not cross-examined by either of the accused persons.
41.3 It would be pertinent to make reference to the aforesaid conversation vide call no. 195, the relevant portion of the same is reproduced hereunder :
"SM : Hello ........
SM : Namaste ji RB : Sahab Sahab - ki tussi inna dhamka dende ho mainu SM : Hai RB : Inna dhamkaoge na main tan mar hi javanga bilkul SM : Aen koi gal nahi ......
.......
RB : Peti ayegi, ayegi, mujhe aap dabao nahin sahab please main SM : Nahin koi gal nahi hui RB : Aapse mai request karta hoon ...........
RB : Ab kya hoga mujhe dena padega jabardasti SM : to phir mat de - aaya hi nahi kar CBI Vs. Sushanta Mukherjee & Ors. Page No. 137 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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RB : Hain--
SM : Aaya hi mat kar mere paas RB : Kahan pe SM : Dena hi nahi padega RB : Na aaya karun SM : --- Mat aaya kar RB : Sir, kabhi aise ho sakta hai SM : To dena nahin padega phir tere ko RB : Sahab aisi baaten---
SM : Mai kon sa kah raha hoon -
jabardasti - de-- mere ko RB : Aap aisi baat kyon - aisi baat kyon karte ho mujhe batao SM : Main kon sa tere sir par bandook laga raha hoon ki de mere ko - mat de RB : Mai - Mai - mat doon ........
........
Portion X-1 RB : Dekho sahab mai ---- ----- ----- aaya aapke paas aapne kuch nahi bole - maine 4 bola - aapne kaha chal yaar tu 4 le le SM : maine isliye bola ki theek hai tu de raha hai de de RB : koi baat nahi - theek hai na ji SM : maine kabhi ginati nahi kari CBI Vs. Sushanta Mukherjee & Ors. Page No. 138 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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RB : aap - aapki SM : maine kabhi ginati nahi kari - jab maine ginati kari tab mujhe mahsoos hua RB : nahi sahab nahi - dekho aapne bola SM : mai yahin samajh kar - ki chal tu de raha hai RB : nahi sahab kabhi-kabhi mai jhooth nahi bolunga aapko SM : maine tere se question kya kaha tha? RB : haan ji.
SM : kya question kiya tha? RB : apne kaha tha 5 SM : maine tere ko question kya kiya tha jab tu aya tha.
RB : haan bhai kitna hai? Kitta hai? Maine kaha 4 hai.
SM : na RB : apni kasam.
SM : tune kaha vahi hai.
RB: sahab mere ko mere ko kabhi naseeb na ho paisa.
SM : na tune ye kaha jo apne kaha vahi hai."
Portion X-2 "RB : haan main 4 - 4 hi de raha tha apko SM : - pichli baar bhi 4 tha - acha Amrik mila
- Amrik mile maine tab bhi 4 diya.
CBI Vs. Sushanta Mukherjee & Ors. Page No. 139 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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SM : maine 4 kabhi kaha hi nahi.
RB : sahab dekho - dekho sahab - mai pehle ap SM : nahi maine 4 nahi kaha.
.....
SM : main 50 saal umar ho gai - main apni 40 saal umar bataunga - bevakuf hai.
.....
RB: sir ap 50 saal ke-main agli baar 50 kar dunga apko - aur kya ji.
SM: umar hi 50 ha to 50 hi bataunga.
RB: 50 kar dunga - koi baat nahi - kya
hai.
SM: theek hai fir.
RB: kar dunga 50 - aap sahab aap naraz
mat hua karo - bas.
....
RB: sir vo mera - mera vo jo padosi hai - sir
vo mere se kam hai.
.....
Portion X-3
SM: haan 5 de raha hai.
RB: nahi sahab-agar vo dega main 6 dunga
apko.
.....
SM: theek hai main dekh leta hun.
RB: main 6 dunga ji fir chahe mujhe na
bache ghar pe.
CBI Vs. Sushanta Mukherjee & Ors. Page No. 140 of 174
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....
SM: karta nahi hu - aur agar koi dhoka de to bakhshta nahi hu.
RB: sir ap - apko sab pata hai - main sir apse mohobbat hai.
SM: chal dekh lunga.
.....
RB: apki dua ha - umar badhegi - hum do
paise kha lenge - kama lenge.
SM: chalo very good.
....
SM: chal badiya hai.
RB: nahi nahi sahab, main kehta hun - nazar
na lage apko bas.
SM: theek hai
RB: yeh kehta hun bas.
SM: Ok.
41.3.1 From the aforesaid conversation it is evident that
PW-15 was regularly paying '4' instead of '5' as demanded by A-1, although, PW-15 had been telling A-1 that he was giving as per previous practice. A-1 kept the same without counting. But, once he (A-1) counted and found the same to be less, that is, '4' instead of '5', A-1 expressed his displeasure at PW-15 playing mischief with him. PW-15 was then threatened/ warned by A-1 that he does not spare anyone who cheats on him. On CBI Vs. Sushanta Mukherjee & Ors. Page No. 141 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
- 142 -
which, PW-15 asked A-1 not to advance threats to him and assured A-1 that if someone else was giving '5', he would give '6'. PW-15 in his cross-examination by Ld. PP has admitted that he told that he would give "6", but stated that reference was being made to six bottles or something else. From A-1's query to PW-15 in the conversation "Haan bhai kitna hai" and PW-15's response "mere ko kabhi Paisa nasib na ho...", it is evident that reference in the conversation was to money and not to liquor bottles. Further, had it been to four "liquor bottles", it would not have been difficult for A-1 to count at the time they were handed over.
41.4 No explanation has come forth from A-1 as to what for, was he demanding and regularly receiving such amounts from PW-15. Thus, presumption under Section 20 PC Act can be drawn against A-1. (detailed discussion in this regard is made in para no. 49.0 & its sub-paras infra).
42.0 Sudarshan (Sharma)/ Pandit, whose reference came in the conversation [call number 103 - Ex.PW15/A as referred to in Para-41.2.1 (supra)] between A-1 and PW-15, was examined CBI Vs. Sushanta Mukherjee & Ors. Page No. 142 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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as PW-16. Sudershan Sharma - PW-16, was posted as Manager at DSIIDC liquor shop, N - Block, Connaught Place, New Delhi, from May 2007 to May 2008. He deposed that he knew both the accused persons and spoke to them telephonically number of times regarding business and personal matters. After hearing call no. 100 dated 02.11.2007, transcript of which is Ex.PW16/A (D-50 Pages 229 to 234), PW-16 stated that his said conversation with A-1 was regarding/ supply of foreign liquor brands from time to time to some VIPs, as per the instructions of A-1; and since the payment used to be delayed, he (PW-16) had to deposit cash out of his own pocket towards such sales, as the accounting for stock/ cash had to be done.
42.1 Regarding calls no. 101 & 102 dated 03.11.2007, transcripts of which are Ex.PW16/B (D-50 Page 235) and Ex.PW16/C (D-50 Page 236), respectively, PW-16 stated that his said conversation with A-1 was regarding payment awaited from Rajeev (who was posted at Kotla Mubarakpur) with regard to supply of foreign liquor brands. He further stated that on receipt of such payment from Rajeev, he CBI Vs. Sushanta Mukherjee & Ors. Page No. 143 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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confirmed/ informed A-1 about receipt of Rs.50,000/- from Rajeev. He further stated that in call no. 102, he was talking to A-1 regarding Rs.10,000/- which were received from Ashok Nagar, who was posted at Karawal Nagar (Ld. Predecessor Court made an observation that in the conversation the amount mentioned is Rs.50,000/- and not Rs.10,000/-). PW-16 also stated that reference regarding A-2 in the said conversation was about certain deliveries of foreign brand liquor that were to be made to A-2 from his outlet, later on.
42.2 As, PW-16 did not fully support the prosecution version, he was cross-examined by the State. In his cross- examination by learned PP, PW-16 admitted that his statement was recorded by CBI, but denied that he had told CBI that A-1 informed him that Rs. 50,000/- would be delivered by Ashok Nagar to him (PW-16), which would then be collected by A-2 from him and that, PW-16 even confirmed to A-1, the delivery of the said amount by Ashok Nagar. PW-16 also denied in his cross-examination by learned PP, that portions Mark X-1 and X-2 in conversations Ex.PW16/B, suggested that the amount of Rs. CBI Vs. Sushanta Mukherjee & Ors. Page No. 144 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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50,000/- was to be handed over to A-2.
42.2.1 Aforesaid denial of PW-16 is contradictory to his version in his statement u/Sec. 161 Cr.PC, Ex.PW16/PA, with which he was confronted. Further from the plain reading of conversations vide calls no. 100 and 101, particularly portions X-1 and X-2 in conjunction with the testimony of PW-16, it is evident that there is no reference to any delivery of liquor of foreign brands. It is apparent that A-1 was telling PW-16 that Rs. 50,000/- by Rajeev and Rs.50,000/- by Ashok (Nagar) shall be delivered to him. PW-16 then confirmed to A-1 vide call no. 101 that he had received Rs.50,000/- from Rajeev and informed but, Nagar had not reached. A-1 then directed PW-16 to call up Nagar; A-1 also informed PW-16 that Surender would deliver the amount directly to him (A-1). A-1 also told PW-16 vide Calls no. 101 & 102 that A-2 would come and collect (the amount so delivered to PW-16).
42.2.2 No explanation has come from A-1 regarding above payment to be received by PW-16 on his (A-1's) behalf from Rajeev and Ashok Nagar.
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42.3 Regarding tape recorded conversation vide call number 82 dated 13.10.2007, transcript of which is Ex.PW16/D (wrongly typed as Ex.PW16/C in the testimony) (D-50 Pages-178 to 182), PW-16 deposed that the said conversation of his with A-1 was regarding delivery of bottles of foreign liquor to their Director, who was also an MLA; payment towards said delivery had been received in excess and some balance was lying with him, which was to be refunded to the Director; as nobody was coming to collect the balance money, A-1 asked him (PW-16), to send the same to the party concerned. 42.3.1 It has come in PW-16's cross-examination by learned PP, that the cash pertaining to sales of each day was always deposited in the Bank on the next working day in the morning. PW-16 explained that whenever there was a delay in getting payment for supplies of liquor, he used to put in cash from his own pocket to account for the stocks and cash. PW-16 denied that he had told CBI that as per the instructions of A-1, he had supplied liquor cases of different brands totalling Rs. 91,000/- to different VIPs on the occasion of Diwali and, he had to bear the burden of Rs.50,000/- from his own pocket while the CBI Vs. Sushanta Mukherjee & Ors. Page No. 146 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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balance amount of Rs. 41,000/- was contributed by S.N. Jual from his own pocket, on threats being extended by A-1. Same is contrary to what was stated by PW-16 to CBI vide his statement Ex.PW16/A, with which he was confronted. Further, the fact that payment of Rs.41,000/- was made by S.N. Jual has come out in PW-16's cross-examination, on behalf of A-2. It was put to PW-16 in his cross-examination by A-2 that S. N. Jual was to make a payment of Rs.41,000/- (to PW-16) in three installments for supply of foreign liquor cases to one of his (Jual's) friends at his asking, which was admitted by PW-16.
42.3.2 As to how was PW-16 supplying liquor of such heavy amounts to the friends of other employees and that too on credit and was receiving the payment in installments, has remained unexplained. Further, how was A-2 aware of dealings between PW-16 and S. N. Jual and even the details of it that the amount was payable in instalments. In view of these facts and circumstances, this story of PW-16 is evidently, a well thought of camouflage to save himself and the accused persons. Even the story of receipt of excess payment from director/ MLA and return of balance can not be bought, in the light of PW-16's CBI Vs. Sushanta Mukherjee & Ors. Page No. 147 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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testimony and tape recorded conversation, when considered in entirety.
42.4 Even if for a moment, PW-16's version that he was directed by A-1 to supply foreign brand liquor to VIPs from time to time, for which he paid from his pocket and amount was later reimbursed, is accepted. In absence of cross-examination on behalf of A-1 in this regard, it is established that A-1 used to direct PW-16 to supply foreign brand liquor to some VIPs on credit. It was for A-1 to explain the reason for doing so. In absence of any explanation from the side of accused persons, presumption under Section 20 PC Act can be drawn against them. [Detailed discussion in this regard is made at Para 49.0 and its sub-paras (infra)].
43.0 Rajeev Kumar, Surender Kumar and Ashok Nagar (all the employees of DSIIDC and posted at liquor vends during the relevant period), whose reference has come in the conversation between PW-16 and A-1, stepped into the witness box as PW-31, PW-39 and PW-40, respectively. All of them turned hostile and denied that any demand was made from CBI Vs. Sushanta Mukherjee & Ors. Page No. 148 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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them by A-1.
43.1 In his cross-examination by Ld. PP, PW-31 Rajeev Kumar deposed that he did not state before CBI that 2 - 3 days prior to Diwali in the year 2007, A-1 had demanded Rs.50,000/- from him as bribe; when he expressed his inability to pay, he was threatened by A-1 to be transferred to a distant shop, in case the said demand was not met; thus, he was forced to take the said amount from his brother to give it to A-1. PW-13's denial is contrary to his version under statement u/Sec. 161 Cr.PC, Ex.PW31/A, with which he was confronted; and wherein it is recorded as under :
"......before Deepawali in the year 2007, Sh. S. Mukherjee, the then OSD of Liquor Division of DSIIDC asked me to arrange Rs.50,000/-. ........... I expressed my inability to arrange such huge amount and that too without any reason. Sh. Mukherjee got angry stating that in case I do not give him the said amount of Rs.50,000/- he will transfer me to some distant place. ............ Under the above stated threat, I after all agreed......... Thereafter, I arranged Rs.50,000/- from my brother and friend and as per the instructions of Sh.
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Mukherjee I personally went to the DSIIDC liquor shop incharge at N Block, Connaught Place, New Delhi Sh. Sudershan Sharma and handed him over the said Rs.50,000/- with a message that the same was to be sent to Sh. S. Mukherjee."
43.1.1 The fact that PW-31 handed over a sum of Rs. 50,000/- to PW-16 Sudershan Sharma has already come in the testimony of PW-16. PW-16 even deposed that he had confirmed the same to A-1, vide his conversation with A-1 in call no. 101 dated 01.11.2007. The same also stands corroborated by transcript of the said call i.e. Ex.PW16/B. 43.1.2 In view of the above, it is evident that PW-31 is not truthful before the court. His falsehood and attempt to wriggle out of his previous statement is obvious i.e., in order to safeguard his own interest, from being culpated as a bribe giver and to shield accused persons.
44.0 Same is the status of PW-39 and PW-40. They also attempted to disown their version. But, on reading of their testimony in conjunction with version of other witnesses, effort CBI Vs. Sushanta Mukherjee & Ors. Page No. 150 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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on their part to save themselves become apparent. 44.1 PW-39 Surender Kumar was posted as In-charge, DSIIDC Liquor Shop at Shekh Sarai during the period June 2007 to May 2008. He deposed that he was transferred to Shekh Sarai in June 2007 or earlier; prior to that, he was working at Kotla Mubarakpur and further stated that it was a routine transfer.
44.1.1 In his cross-examination by learned PP, PW-39 denied that he stated to CBI that his transfer from Kotla Mubarakpur to Shekh Sarai was not a routine transfer; and that he was transferred as he had not paid bribe demanded by A-1 through A-2. The said denial is contrary to PW-39's statement under Section 161 Cr. PC, Ex.PW39/D, with which he was confronted. In his statement u/Sec. 161 Cr.PC, PW-39 has stated that while he was posted at liquor shop at Kotla Mubarakpur, A-1 had demanded money as well as bottles of expensive whisky; and as he did not give the same, he was transferred from that shop to Sheikh Sarai. In view of the same, the version of PW-39 that his transfer to Sheikh Sarai was a routine CBI Vs. Sushanta Mukherjee & Ors. Page No. 151 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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transfer, becomes doubtful. Further, the fact that bribe was demanded by A-1 can be inferred from A-1's conversation with PW-16 vide Call No. 101 (Ex.PW16/B). A-1 in the said conversation told PW-16 that Surender (PW-39) would give it directly to him (A-1).
45.0 PW-40 Ashok Nagar was posted as In-charge, Liquor Shop, Karawal Nagar during the period September, 2007 to December, 2007. In his cross-examination by Ld. PP, PW-40 feigned ignorance about the context in which his name appeared in aforesaid conversation vide call no. 101 dated 03.11.2007 (Ex.PW16/B); and why reference to a sum of Rs. 50,000/- came therein. PW-40 denied that A-1 had demanded Rs.50,000/- from him and had threatened to transfer him to a distant place, in case the demand was not met. He also denied that the said amount of Rs.50,000/- was delivered by him to A-1 through PW-16 Sudershan Sharma; and that PW-16 Sudershan Sharma had confirmed to A-1, the receipt of Rs.50,000/- from him. PW-40 admitted that he was examined by CBI, but further stated that his statement was not recorded. CBI Vs. Sushanta Mukherjee & Ors. Page No. 152 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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45.1 From the testimony of PW-16 and admitted conversation vide calls no. 101 & 102, transcript of which are Ex.PW16/B and Ex.PW16/C, it is apparent that money was demanded by A-1 and paid by PW-40. In view of the same PW-40's attempt to disown his statement u/Sec. 161 Cr.PC, is obvious. It is seen that PW-40 in his statement u/Sec. 161 Cr.PC stated that A-1 had demanded Rs.50,000/- from him and under compulsion he had sent the said amount of Rs.50,000/- to Sudershan Sharma with a message to deliver the same to A-1. As mentioned above, the fact that PW-40 sent the said amount to PW-16 Sudershan Sharma for onward payment to A-1, who confirmed the receipt of the same to A-1, has come out in the testimony of PW-16.
45.2 In view of the above facts and circumstances, it is apparent that PW-40 is not truthful, for obvious reasons, that is, to safeguard his own interest being charged as a bribe giver and to shield the accused.
46.0 The demand of money by accused no. 2 is also borne out from the testimony of PW-37 Om Prakash, who was CBI Vs. Sushanta Mukherjee & Ors. Page No. 153 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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In-charge of DSIIDC Liquor Outlet near Liberty Cinema, Karol Bagh during the period November 2006 to June 2008. After listening to call number 51 dated 21.09.2007, transcript of which is Ex.PW37/A (D-50 Page-97), PW-37 stated that his said conversation with A-2 was regarding supply of change/ coins or loose money as they had been facing problems regarding return of balance amount to their customers. With respect to other calls number 92 and 93, both dated 19.10.2007, transcripts of which are Ex.PW37/B (D-50 Pages 207 & 208) & Ex. PW37/C (D-50 Page-209), respectively, PW-37 stated that his said conversation with A-2 was regarding delivery of change/ coins by A-2.
46.1 In his cross-examination by learned PP, PW-37 denied that he stated before CBI that A-2 was demanding Rs. 20,000/- from him and had threatened to transfer him to some distant shop; and that A-2 had told him to arrange the currency notes in the denomination of Rs. 1000/- and get the same delivered to his boy Rakesh in an envelope after properly stapling the same. Such denial by PW-37 is contrary to his statement under Section 161 Cr. PC Ex.PW37/F, with which he CBI Vs. Sushanta Mukherjee & Ors. Page No. 154 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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was confronted and where these facts are mentioned. 46.2 Further, the reference to the transcript of aforesaid conversations between PW-37 and A-2 reveals that there is no mention of delivery of any change/ coins. The relevant portion of the conversation vide calls numbers 51 & 92 dated 21.09.2007 and 19.10.2007, respectively, is reproduced hereunder.
Call Number 51:-
"OP: vo aya nahi ji abhi koi lene ke liye. .....
AS: kal le jayega - tu convert karva ke apne paas rakh le.
.....
AS: jab ayega de diyo.
...
AS: hai - laal vale karke rakh de".
Call Number 92 "AS: Om Prakash.
.......
AS: Om Prakash.
....
AS: vaise hai lifafe mein stapler laga ke de diya ladka aa rha hai samne.
.....
AS: akhbar lapet ke stapler laga ke usme daal ke de de.
.....
AS: vo ladka ayega Rakesh, gore se rang ka ladka ...."
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46.2.1 In the above conversations, there is no mention about A-2 supplying/ getting delivered change/ coins to PW-37. Rather, A-2 was getting collected the money. He was asking PW-37 to keep the currency converted in "red". No Indian currency coin is of red color. Further, the coins cannot be "wrapped" in newspaper; they can only be "put". It may also be mentioned that it has already come in the testimony of PW-11 Devender Gautam that reference to "red" in his conversation with A-2 was to Rs.1,000/- currency note (which is red in color). As mentioned earlier in preceding paras that even A-2 in his conversation with PW-21 has referred to Rs.1,000/- note as "red". Thus, considering the material on record in totality, it is evident that in the aforesaid conversations A-2 was asking PW-37 to keep ready the money in denomination of Rs.1,000/- currency notes. No explanation has come forth from A-2's side for what purpose was he asking PW-37 to send the money. From the explanation given by PW-37, an attempt to save himself and shield the accused, is apparent.
46.3 In view of the above, demand of money by A-2 is established. Onus was upon him to explain the same, which he CBI Vs. Sushanta Mukherjee & Ors. Page No. 156 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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failed to discharge. Thus, presumption under Section 20 PC Act can be drawn against him [detailed discussion in this regard is at Para 49.0 and its sub-paras (infra)] 47.0 PW-41 Ramesh Chander deposed that during the period November 2006 to January 2009, he was working as In- charge, DSIIDC, Liquor Outlet at Savitri Cinema, G.K.-II, New Delhi; he spoke to A-2 several times, on telephone on personal as well as official matters. After hearing conversation in calls number 119 and 120, both dated 17.11.2007, between him and A-2, transcripts of which are Ex.PW41/A and Ex.PW41/B, respectively (D-50, Page-273 and -274), he deposed that in the said conversations, A-2 required a wad of currency notes in the denomination of Rs. 1000/-, he (A-2) had given him (PW-41)such notes in denomination other than Rs. 1000/-. He further stated that call number 120 was regarding A-2 requiring exchange of currency notes of Rs. 500/- for Rs. 1000/-, call number 167 dated 14.12.2007, transcript of which is Ex.PW41/C, (D-50 Page 371 & 372) and call numbers 170, 174 and 179, all dated 15.12.2007, transcripts of which are Ex.PW41/D, Ex.PW41/E (D-50 Page 381 & 383), Ex.PW41/F CBI Vs. Sushanta Mukherjee & Ors. Page No. 157 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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(D-50 Page 390-393), call number 198 dated 28.12.2007, Ex.PW41/G (D-50 Page 450-453), call number 201 dated 29.12.2007, Ex.PW41/H [D-50 Page 464 (wrongly typed as 364 in the testimony)], between him and A-2 were regarding business in usual course.
47.1 In his cross-examination by Ld. PP, PW-41 denied that he stated to CBI that vide said conversations A-2 demanded bribe and threatened to transfer him a distant place, in case said demand was not met. PW-41 was confronted with his statement u/Sec. 161 Cr.PC, which is Ex.PW41/I, where it is so recorded. Perusal of Ex.PW41/I reveals that after listening to the conversations between him and A-2 vide aforesaid calls, PW-41 stated - "......Amrik Singh....... had also demanded money from me stating that he had to give some money to OSD S. Mukherjee otherwise Sh. Mukherjee will transfer to a distant place and will harass by making unfair inspections of the liquor shop.
......under compelled circumstances I had to give some money to Amrik Singh, exact amount is not known now." CBI Vs. Sushanta Mukherjee & Ors. Page No. 158 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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47.2 Reference is also made to call no. 179 Ex.PW41/F, the relevant portion of which reads as under :
Call No. 179 (Ex.PW41/F :
".......
Ramesh : suno to sahi, main is chakkar me tha bhaiya aayenge aaj bhaiya se baat karunga - maine kaha jheel khali ho rahi hai, 50 de doonga main jheel mere ko dila do, par bhaiya aaye nahi, main kya karta batao Amarik Singh : bas yahi maangi tune Ramesh : Aur kya yahi maangi - jo tu de dega - Amrik Singh: Itne tere kabootar pe waar ke phenk doo tujhe kya dikkat aa rahi hai. Tujhe pata hi nahi tune kanha jaana hai ........
Ramesh : to jahan bhejega, mujhe achcha lagega jahan bhi bhej de Amrik Singh : Haan, abe wo Sanju ladka khada tha wo Malka Ganj wala maine kaha tujhe pata hi nahi tujhe kahan jaana hai - is saadhu ke paas kya karega main tere ko daakuo mein bhejunga, hain, jahan maal aayega - mota ......"
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47.3 From the aforesaid conversation, it is evident that PW-41 was ready to pay '50', that is, Rs. 50,000/- to A-2 for his transfer/ posting at Liquor Vend at Jheel, which was about to fall vacant. A-2 even bragged that he assured 'Sanju' of Malka Ganj to post him at a place, where he would earn a good amount -
"mota maal aayega".
48.0 In view of the above material on record, it is established that the accused persons in conspiracy with each other habitually obtained/ demanded and accepted illegal gratification in money/ cash and kind including liquor bottles from the dealers/ distributors/ suppliers of liquor to DSIIDC outlets and also from employees of IMFL Division/ those posted at liquor vends of DSIIDC, under threat of transfer to inconvenient places/ for favour of posting at places of their choice. In defence it was suggested to witnesses in cross- examination, that whenever any liquor bottles were picked up/ obtained/ got delivered to VIPs/ MLAs etc. by accused persons, consideration for the same was paid later on to the suppliers/ dealers/ distributors/ employees in-charge of liquor vends. Both the accused persons have failed to place on record any material CBI Vs. Sushanta Mukherjee & Ors. Page No. 160 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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to show that payments were made towards such liquor. Even delivery of cases of liquor/ money at A-1's residence has remained unexplained.
48.1 Regarding payments of money to accused persons, witnesses in their cross-examination by Ld. PP tried to explain such payments as repayment of personal loan taken from/ facilitated by A-2 or that money/ "saman"/ articles were sent by some relative of A-2. A-2 has failed to demonstrate that said things/ money were sent by his relatives. Even with respect to plea of payment of money to accused being towards repayment of loan given by A-2/ or facilitated by him or about standing guarantor for supply of liquor cases to PW-13's friend on credit, no explanation has come-forth from A-2 in this regard. 48.1.1 Neither has any explanation come from accused persons for obtaining/ demanding and accepting liquor bottles from dealers/ distributors/ suppliers/ their agents and employees/ In-charge of DSIIDC Vends, at a discounted price, that is, at a price less than its market value. CBI Vs. Sushanta Mukherjee & Ors. Page No. 161 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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49.0 It may be mentioned that once the demand, acceptance/ obtention of gratification other than legal remuneration is proved, Sec. 20 of PC Act provides that presumption shall be drawn against the accused that the accused accepted or obtained or agreed to accept or obtain, attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. Reference is made to the observations of the Hon'ble Supreme Court in this regard in Trilok Chand Jain Vs. State of Delhi, 1977 Cr.LJ 254 (SC), which read as under :
" From a reading of Sec. 4(1) [Sec. 20 of Act 49 of 1988] it is clear that its operation in terms, is confined to a trial of an offence punishable under Sec. 161 or Sec. 165 of of Indian Penal Code (Secs. 7 and 11 of Act 49 of 1988) or under Cl. (a) or Cl. (b) of Sec. 5(1) read with sub-section (2) of that section of the Act.
(Sec. 13 of Act 49 of 1988). If at such a trial, the prosecution proves that the accused has accepted or obtained gratification other than legal remuneration, the Court has to presume the existence of the further fact in CBI Vs. Sushanta Mukherjee & Ors. Page No. 162 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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support of the prosecution case, viz. that the gratification was accepted or obtained by the accused as a motive or reward such as mentioned in Sec. 161 of Indian Penal Code (Sec. 7 of Act 49 of 1988). The presumption however, is not absolute. It is rebuttable. The accused can prove the contrary. ............ In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour. ......"
49.1 The Hon'ble Bombay High Court in Shivrao Wamanrao Deshmukh Vs. State of Maharashtra vide judgment dated 8 May 2012, in 1 Cri. Appeal No. 2/2003 while making reference to the judgment of the Five Judges Bench of the Hon'ble Supreme Court in Dhanvantrai Balwantrai Desai Vs. State of Maharashtra, AIR 1964 Supreme Court, 575, noted in paras 43 and 46 as under :
43] The provision of Section 20 of the Prevention of Corruption Act, 1988, shows that as soon as the prosecution proves that the accused accepted the gratification (other than legal remuneration), the Court is bound to presume, unless contrary is proved that the accused accepted such gratification as a motive or reward, as described in section 7 of the Act.
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Section 20 shows that the burden is on the accused to rebut this presumption. ..........
..........
46] The observations made by the Apex Court in the case of Dhanvantrai (cited supra) show that when the conditions laid down in Section 20 are satisfied by the prosecution, it becomes necessary for the accused to show that money was legally due to him or that he had received it for transaction or arrangement which was lawful. The Apex Court has observed that the accused can establish directly his case by leading evidence or upon the material before the Court he can show that his case is so probable that a reasonable man would act on the supposition that it exists. Thus, only probable or reasonable explanation from the accused is not sufficient for rebutting the burden imposed by Section 20. In the case of AIR 1958 Supreme Court, 61 (State of Madras v. A. 33 Cri. Appeal No. 2/2003 Vaidyanatha Iyer), the Apex Court has held that the term used under section 4(1) "shall be presumed"
has the same meaning as given in definition of "shall presume" in section 4 of the Evidence Act. So unless and until the fact established by the prosecution is disproved, the Court is required to continue to presume the existence of fact established by the prosecution viz. the gratification was accepted as motive or reward as is mention in Section 7.
..........."
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49.2 In view of the evidence on record, burden in terms of Section 20 P. C. Act was upon accused persons to demonstrate that liquor/ money/ certain things demanded/ received/ obtained by them was towards official transaction; and that they paid for such things, liquor bottles picked up/ requisitioned by them from DSIIDC vends/ dealers/ distributors/ suppliers, etc., for personal consumption; and also to explain admitted supply of liquor at discounted price. But, the accused persons have utterly failed to discharge the said burden. Thus, presumption u/Sec. 20 P.C. Act is bound to be drawn against the accused persons.
49.3 It is, therefore, established that the accused persons habitually obtained the gratification, other than legal remuneration in cash and kind and also certain things from the dealers/ distributors/ suppliers of liquor to DSIIDC with whom they had official dealings; and also from the employees posted in IMFL Division/ at liquor vends of DSIIDC, as a motive or reward for doing/ forbearing to do their official duty viz. clearance of bills, placement of order for liquor on such dealers/ distributors/ suppliers/ their company; and to show favour/ CBI Vs. Sushanta Mukherjee & Ors. Page No. 165 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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disfavour to the employees of DSIIDC, in exercise of their official function, by way of their transfer/ posting. 50.0 In view of the above, both the accused persons are found guilty of : -
i. conspiracy punishable u/Sec. 120B IPC;
ii. offences punishable u/Sec. 120B IPC read with Sections 7, 11, 13 (1) (a) read with Sec. 13 (2) P. C. Act, 1988;
iii. substantive offences punishable u/Sec. 7, Sec. 11 and Sec. 13 (2) read with Sec. 13 (1) (a) PC Act, 1988.
Both the accused persons are convicted accordingly.
Announced in the open Court (POONAM A. BAMBA) on this 07th September 2013. Special Judge (PC Act):
CBI-03 :PHC :New Delhi CBI Vs. Sushanta Mukherjee & Ors. Page No. 166 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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IN THE COURT OF MS. POONAM A. BAMBA: SPECIAL JUDGE (PC ACT) : CBI - 03 : NEW DELHI DISTRICT : PATIALA HOUSE COURT :
NEW DELHI In re :CC No. 30/11
Case ID No. 02403R0408362009 RC No. 15A/2008/CBI/ACB/ND U/s 120B IPC r/w S. 7 of P. C. Act STATE (CBI) VS
1.Sushanta Mukherjee S/o Late Sh. N. N. Mukherjee R/o 28-B, DDA Flats, Phase-I, Masjid Moth Near Chirag Delhi Fly Over New Delhi -110048.
2.Amrik Singh S/o Late Sh. Sher Singh R/o J-4, Malka Ganj, Delhi-110007.
Date of pronouncement of judgment : 07.09.2013 Date of Order on Sentence : 12.09.2013 APPEARANCES:-
Sh. S. C. Sharma, Ld. PP for the State (CBI). Sh. Sunil Satyarthi, Ld. Counsel for convict no.1. Sh. Dinesh Sharma, Ld. Counsel for convict no. 2. 12.09.2013 ORDER ON SENTENCE :
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1.0 I have already heard Ld. counsel for both the convicts and Ld. Public Prosecutor on behalf of CBI.
Convict no. 1 Sushanta Mukherjee 2.0 Ld. counsel for convict Sushanta Mukherjee submitted that convict is 70 years old. He is suffering from various ailments; pacemaker has been implanted in his heart and he has to go for check-up of the same every week. He is also suffering from diabetes and chronic kidney ailment, besides hypothyroidism. A certificate dated 09.09.2013 issued by Dr. Rajiv Aggarwal, Sr. Interventional Cardiologist of Batra Hospital and Medical Research Centre, is filed in support. 2.1 It was further submitted on behalf of the convict that he has aged wife and there is no-one to look-after her. One of his children is living abroad and the other one is living out of Delhi. Prayer is made that in view of these facts and circumstances, minimum punishment as prescribed under law be awarded to the convict.
Convict no. 2 Amrik Singh 3.0 Similar prayer for minimum punishment was made on behalf of convict Amrik Singh. It was argued by Ld. counsel CBI Vs. Sushanta Mukherjee & Ors. Page No. 168 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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that sentencing is a complex and a delicate task; the court has to balance the mitigating and aggravating factors; the circumstances under which the offence was committed and other factors viz., age, dependency of the family members on the convict, his roots in society, etc. are to be taken into account.
3.1 It was further submitted that convict is 53 years old and has ailing wife and two daughters. It was further submitted that the convict's wife Smt. Sukhvinder Kaur is suffering from chronic kidney ailment and is undergoing dialysis for last four years; she has to be taken for dialysis thrice in a week; she is also presently suffering from skin ailment. It was also submitted that as one of the daughters of the convict is married and the other is still studying in college, it is the convict, who has to solely look-after his seriously ailing wife. Copies of convict's wife's medical treatment documents of Pushpawati Singhania Research Institute for Liver, Renal and Digestive Diseases, Sheikh Sarai Phase-II and prescription slip of Dr. Anil Ganjoo, Skin and Cosmetology Centre, Gujranwala Town, Delhi, are placed on record, in support.
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4.0 On the other hand, Ld. PP submitted that convicts do not deserve any leniency in view of the fact that they not only demanded and accepted bribe from the distributors/ dealers/ suppliers of liquor; but also, from the employees of DSIIDC for their transfers and postings. The convicts even threatened the employees to post them at inconvenient places, in case the demands were not met and executed such threats in certain cases. It was also submitted that the standard of conduct expected from convict Sushanta Mukherjee was much higher, he being a senior officer. Further, A-2 even influenced witnesses during the pendency of trial. Thus, both the convicts deserve maximum punishment not only for the infringement of law by them but also to send a signal to the society, that corruption cannot be tolerated.
5.0 I have duly considered the submissions made by both the sides and have perused the record carefully. 6.0 Needless to mention that it has been established that both the convicts habitually obtained/ demanded and accepted illegal gratification from the dealers/ distributors/ suppliers of liquor to DSIIDC for expediting payments/ placing of order with them. Not only this, they even obtained/ demanded CBI Vs. Sushanta Mukherjee & Ors. Page No. 170 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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and accepted illegal gratification from the employees of DSIIDC under threat of transfer to inconvenient places/ for favour of posting them to places of their choice/ lucrative vends. 6.1 Convict Sushanta Mukherjee, retired from DSIIDC as Chief Manager. Much faith was reposed by the department in him and after his retirement, he was reappointed as Full Time Consultant and Advisor, designated as OSD IMFL, DSIIDC. In utter disregard of the trust placed in him by the organization, the convict Sushanta Mukherjee in league with convict Amrik Singh, Assistant Manager (Enforcement) literally extracted illegal gratification in cash and kind from the dealers/ distributors/ suppliers as well as from the employees of DSIIDC. 6.2 It would not be out of place to mention here that because of the misconduct of the officials like convicts herein, common man's faith in the system has been shaken; and a belief in society has come to set in, that nothing in the Government departments moves without greasing the palms; and also that one can manage anything (including transfers and postings) by paying illegal gratification. CBI Vs. Sushanta Mukherjee & Ors. Page No. 171 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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6.3 It is also significant to note here that convict Amrik Singh even tried to subvert the process of justice by approaching/ influencing prosecution witnesses during trial. Said conduct of the convict is deplorable. 7.0 In view of the above and taking into account, the facts and circumstances of the case in entirety, the convicts deserve stringent punishment. A strong message needs to be sent in the society that the laws meant to curb and punish corruption are not simple vanities. Anyone found guilty would meet his fate as prescribed by law. However, weighing the aggravating and the mitigating factors as discussed above, I am of the considered opinion that the punishment of :-
i. rigorous imprisonment for a period of three years and a fine of Rs.25,000/-, in default of payment of which, SI for a further period of two months, u/Sec. 120B IPC;
ii. rigorous imprisonment for a period of three years and a fine of Rs.50,000/-, in default of payment of which, SI for a further period of three months, u/Sec. 120 B IPC r/w Sec. 7 PC Act;
iii. rigorous imprisonment for a period of three years and CBI Vs. Sushanta Mukherjee & Ors. Page No. 172 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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a fine of Rs.50,000/-, in default of payment of which, SI for a further period of three months, u/Sec. 120 B IPC r/w Sec. 11 PC Act;
iv. rigorous imprisonment for a period of five years and a fine of Rs.50,000/-, in default of payment of which, SI for a further period of three months, u/Sec. 120B IPC r/w Sec. 13 (1) (a) read with Sec. 13 (2) PC Act;
AND
v. For the substantive offences;
a. rigorous imprisonment for a period of three years
and a fine of Rs.50,000/-, in default of payment of which, SI for a further period of three months, u/Sec. 7 PC Act;
b. rigorous imprisonment for a period of three years and a fine of Rs.50,000/-, in default of payment of which, SI for a further period of three months, u/Sec. 11 PC Act; and c. rigorous imprisonment for a period of five years and a fine of Rs.50,000/-, in default of payment of which, SI for a further period of three months, CBI Vs. Sushanta Mukherjee & Ors. Page No. 173 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND
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u/Sec. 13 (2) r/w 13 (1) (a) PC Act, for both the convicts, shall meet the ends of justice.
7.1 Both the convicts are sentenced accordingly. All the sentences shall run concurrently. Benefit u/Sec. 428 Cr.PC shall be given to the convicts.
8.0 Copy of judgment dated 07.09.2013 and this order be provided to both the convicts, free of cost.
9.0 Personal bonds and surety bonds of both the convicts are hereby cancelled and endorsement, if any, on their documents/ FDRs, be cancelled and the same may be released to them.
File be consigned to the Record Room.
Announced in the open Court on this 12th September 2013. (POONAM A. BAMBA) Special Judge (PC Act):
CBI-03 :PHC :New Delhi CBI Vs. Sushanta Mukherjee & Ors. Page No. 174 of 174 CC No. 30/11 : RC No. 15A/2008/CBI/ACB/ND