Delhi District Court
Cc.No.17 / 2011 - Cbi vs . Mahender Kumar on 23 December, 2016
CC.No.17 / 2011 - CBI Vs. Mahender Kumar
and
CC.No.01/13 - CBI Vs. Yogender Singh Verma
Dated : 23.12.2016
IN THE COURT OF : MS. ANU GROVER BALIGA :
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
FIR Number : RC No.4(A)/2005/CBI/ACUVI/
New Delhi dated 18.09.2005.
Under section: 120B IPC r/w section 7 and 13 (2)
r/w section 13(1) (d) of Prevention
of Corruption Act, 1988.
IN THE MATTERS OF:
C.C.NO.: 17 / 2011
CBI VS. MAHENDER KUMAR
CENTRAL BUREAU OF INVESTIGATION
(C.B.I.)
..... Through
Ms. Shashi, Ld. PP for CBI
Versus
Mahender Kumar
S/o Late Sh. Sunder Lal
R/o D91, Amar Colony,
Lajpat NagarIV,
New Delhi110024.
...... Accused
Through Sh.Deepak Gandhi,
Advocate
Date of Institution : 29.12.2006
Date on which the case was : 30.09.2011
received on transfer in this court
Date of reserving judgment : 08.12.2016
Date of pronouncement : 23.12.2016
Page 1 of 68
CC.No.17 / 2011 - CBI Vs. Mahender Kumar
and
CC.No.01/13 - CBI Vs. Yogender Singh Verma
Dated : 23.12.2016
AND
C.C.NO.: 01 / 2013
CBI VS. YOGENDER SINGH VERMA
CENTRAL BUREAU OF INVESTIGATION
(C.B.I.)
......Through
Ms. Shashi, Ld. PP for CBI.
Versus
Yogender Singh Verma
S/o Late Sh. Prabhu Dayal Verma
R/o C4, IInd Floor,
Ashoka EnclaveII,
Sector37, Faridabad121003.
...... Accused
Through Sh.Sanjay Chaubey,
Advocate
Date of Institution : 21.01.2013
Date on which the case was : 21.01.2013
received on transfer in this court
Date of reserving judgment : 08.12.2016
Date of pronouncement : 23.12.2016
: J U D G M E N T :
1.The aforementioned two cases are being decided vide a single judgment in view of the order dated 21.9.2013 passed by the Page 2 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 Ld Predecessor of this court in CC No. 1/2013. Vide the said order the Ld Predecessor had directed that CC No. 1/2013 stands clubbed with the chargesheet bearing CC No. 17/2011 for the purposes of trial and adjudication and it was made clear that CC No. 17/2011 will be treated as the main / leading case.
2. Initially the chargesheet bearing no. 17/11 was filed by CBI in the court against both the accused Y.S. Verma and Mahender Kumar. Briefly stated the allegations in the said charge sheet were as follows : a. On 17.9.2005 one Ashwani Kumar Aggarwal had lodged a complaint with CBI containing interalia the following assertions :
i) On 08.09.2005, a raid was conducted at his premises by Directorate of Revenue Intelligence, under the supervision of one Manish Mani Tiwari, Deputy Director; DRI and the surveillance aspect of said raid was looked into by Y.S.Verma.
ii) Y.S.Verma, a Senior Intelligence Officer working with Directorate of Revenue Intelligence (D.R.I.), New Delhi, had contacted one Kailash Chand Bansal (Samdhi of the complainant) on 10.09.2005 and demanded "illegal gratification" of Rs.50 lacs Page 3 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 from him, on behalf of Manish Mani Tiwari.
iii) Complainant Sh.Ashwani Kumar Aggarwal was also spoken to, by Y.S.Verma and was told that he will have to pay this much amount, otherwise he and his sons would face the necessary consequences.
iv) On 17.09.2005, Y.S.Verma informed said Kailash Chand Bansal that he would be visiting his residence at about 1 pm on 18.09.2005 and demanded Rs.5 lacs as first installment of the bribe. However, as the complainant did not wish to pay the bribe to the accused, therefore he lodged the aforementioned complaint with the CBI.
b. On receipt of the aforementioned complaint, the FIR ie. RC No.4(A)/2005/CBI/ACUVI/ New Delhi was registered on 18.09.2005 and it was decided that a trap would be laid for apprehending Y.S. Verma. A raiding party was constituted by Deputy Superintendent of Police O.P.Parida, who also joined two independent witnesses in the raiding party.
c. The complainant, his relative, K.C. Bansal and the two independent witnesses were demonstrated the use of phenolphthalein powder and its reaction with Sodium Carbonate Page 4 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 Solution. Currency notes amounting to Rs.5 lacs, produced by the complainant, were kept in an envelope and the notes as well as envelope were treated with phenolphthalein powder. and the same were handed over to Kailash Chand Bansal with instructions to hand over the same to accused Y.S.Verma, on his demand. Kailash Chand Bansal was also instructed to give a signal after the transaction of bribe is over. A pretrap memo was recorded wherein the number and denomination of currency notes, were noted down.
d. The raiding party thereafter left for the residence of Kailash Chand Bansal. However, Kailash Chand Bansal then had a telephonic talk with Mahender Kumar, who informed that Yogender Singh Verma has changed his mind and had asked them to come to the residence of Mahender Kumar at D91, Amar Colony, Lajpat Nagar, to pay the bribe amount of Rs.5 lacs.
e. The trap team along with the independent witnesses were again briefed by the Deputy Superintendent of Police and they left for of the house Mahender Kumar and reached there at about 2 :15 pm. f. Kailash Chand Bansal, Ashwani Kumar Aggawal and Vandana Aggarwal (daughterinlaw of Ashwani Kr. Aggarwal) Page 5 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 along with the Shadow Witness, went inside the house of Mahender Kumar, where Yogender Singh Verma demanded and accepted the bribe of Rs.5 lacs from Kailash Chand Bansal.
g. After getting the predecided signal, the trap team rushed inside and caught hold of Y.S.Verma redhanded at residence of coaccused Mahender Kumar, ie. at D91, Amar Colony, Lajpat Nagar, New Delhi, being in possession of the demanded and accepted "illegal gratification" of Rs.5 lacs.
h. Thereafter the solution of sodium carbonate was prepared and right hand finger and left hand finger of accused Y.S.Verma were washed in the solution, which turned pink. Portion of right side of the trouser of Y.S.Verma was also dipped in the separate sodium carbonate solution which also turned pink and all these three solutions, were transferred in empty bottles, which were sealed separately.
i. The numbers and denomination of the currency notes, recovered from the possession of Y.S.Verma were tallied with the numbers mentioned in the handing over memo, whereafter a proceeding sheet was drawn in presence of the independent witnesses.
Page 6 of 68CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016
3. On conclusion of the investigation, the charge sheet bearing CC No. 17/11 was submitted in court on 29.12.2006 against both accused ie. Y.S.Verma and Mahender Kumar for offences punishable u/s 120B IPC r/w section 7 and 13 (2) r/w section 13(1) (d) of Prevention of Corruption Act, 1988.
4. Along with the said charge sheet, CBI had filed the "sanction order" dated 29.12.2006, passed by Ms.Parveen Mahajan, the then Additional Director General, D.R.I, Delhi. On the basis of said sanction order, Ld.Predecessor of this court, had taken cognizance of the offence and proceeded with adjudication of the proceedings.
5. Both the accused persons were summoned and were supplied with the copies of the charge sheet in compliance with provisions of section 207 Cr.P.C.
6. Ld. Predecessor of this court, after hearing arguments on the point of charge, had passed orders dated 30.03.2010, thereby directing framing of charges against the accused persons ie. Yogender Singh Verma and Mahender Kumar, for offences under Page 7 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 section 120B IPC r/w section 7 and 13 (2) r/w section 13(1) (d) of Prevention of Corruption Act, 1988 and charge was accordingly framed and matter proceeded for recording of prosecution evidence.
7. Thereafter however accused Y.S.Verma preferred petition ie. Crl.M.C.Pet.No.:1853 of 2011 under section 482 Cr.P.C read with Article 226 / 227 of Constitution of India, for quashing of order on the charge as well as charge dated 30.03.2010 and for quashing of the FIR and the proceedings emanating therefrom, with one of the grounds taken being that the sanction order was not passed by the competent authority.
8. On 18.04.2012, during the course of proceedings of said petition before Hon'ble High Court, the same was ordered to be "dismissed as withdrawn" with liberty to the accused / applicant to move appropriate application before the trial court, therein raising all the available grounds to challenge the validity of sanction.
9. Armed with the order dated 18.04.2012 passed by Page 8 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 Hon'ble High Court, accused Y.S.Verma then moved an application before the Ld. Predecessor of this Court, agitating that as the sanction, on the basis of which cognizance was taken, was granted by an authority not competent to grant the same, therefore he be discharged and the proceedings under adjudication being void abinitio, be stopped qua him.
10. After hearing arguments on the said application filed by accused Y.S.Verma, an order dated 27.09.2012 was passed, whereby the said application was allowed, holding the sanction dated 29.12.2006 filed along with the initial charge sheet to be invalid and Y.S.Verma was accordingly released.
11. Vide order dated 27.09.2012 itself, it was clarified therein, that his release shall not amount to disposal of his trial on merits and CBI was granted liberty to file fresh charge sheet after getting the requisite sanction from the competent authority.
12. Central Bureau of Investigations thereafter applied with the competent authority for grant of sanction qua accused Y.S.Verma. The competent authority on the basis of the report put Page 9 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 up before it, granted sanction for prosecution of Y.S.Verma under section 19 of Prevention of Corruption Act vide sanction order dated 16.11.2012.
13. After getting the fresh sanction from the competent authority, CBI then filed the charge sheet bearing CC No. 1/2013 in court against accused Y.S.Verma and vide order dated 21.1.2013 the Ld Predecessor of this court took cognizance of the offence punishable under section 120B read with section 7 and section 13 (2) read with section 13 (1) (d) of P.C. Act and summoned the accused Y.S. Verma and thereafter framed charges against the accused Y.S. Verma for the aforementioned offences.
14. After the framing of charges, on request of CBI, the order dated 21.9.2013, clubbing the aforementioned two chargesheets was passed.
15. The aforementioned facts make it clear that the allegations against both the accused persons are the ones that have been described above to have been contained in the chargesheet bearing CC No. 17/2011.
Page 10 of 68CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016
16. The prosecution has examined 20 witnesses in order to prove the said allegations and one CFSL expert has also been examined as a court witness.
17. The relevant testimony of the examined prosecution witnesses are as follows :
18. PW13 Sh.C.P.Goyal, the then Joint Director (Commercial Intelligence), DRI has interalia deposed that in July - August 2005 he had received intelligence information regarding M/s Everest Exports and three other firms being run by Ashwani Aggarwal operating from Noida Special Zone (NSEZ) to the effect that this person in the name of his firms was importing goods and diverting the same in domestic market in a clandestine manner and substituting these imported goods by some other junk material which he was showing to be exported to countries like Singapore and Hongkong. As per this witness, based on this information he directed his subordinate DRI officials to keep surveillance on the imports received by Ashwani Aggarwal.
Page 11 of 68CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016
19. PW12 Sh.Sunil Kumar, an official of DRI has interalia deposed that on directions of Sh. C.P.Goyal, on 07.09.2005, he was deputed to keep surveillance on the vehicle in which the imported goods of Ashwani Kr. Aggarwal were loaded from the Air Cargo, Delhi Airport. He has also deposed that the accused Y.S.Verma, another intelligence officer Rana Pal and Deepak Mangotra had also joined him in the said surveillance on the directions of Sh.Manish Mani Tiwari, the then Dy. Director in Commercial Intelligence, DRI. As per the deposition of this witness after the arrival of the consignment in question at Air Cargo in the night of 07.09.2005, he alongwith accused Y.S.Verma and the aforementioned DRI officials followed the consignment to the residence of Ashwani Kr. Aggarwal at Paschim Vihar and thereafter informed PW13 Sh.C.P.Goyal about the same. This witness has further deposed that Sh.C.P.Goyal then decided to carry on search operations of the residential premises of Ashwani Kr. Aggarwal and therefore a team led by Manish Mani Tiwari and five other DRI officials including one H.S.Swami reached the residential premises of Ashwani Kr. Aggarwal for search. According to this witness after the arrival of the said team, he was instructed by Manish Mani Tiwari to proceed to the SEZ premises Page 12 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 of the factory of Ashwani Kr. Aggarwal, to conduct the search there. This witness has then gone on to describe the search conducted by him at the said premises and he has proved the panchnama Ex. PW12/B prepared by him in the said respect. He has also interalia deposed that accused Y.S.Verma had joined the said search in the afternoon.
20. PW4 Sh.H.S.Swami has briefly described the search that was conducted at the residential premises of Ashwani Kr. Aggarwal under the supervision of Manish Mani Tiwari. He has proved on record the notesheet prepared by Manish Mani Tiwari, Ex. PW4/B with respect to the search proceeding.
21. PW2 Sh.M.M.Dubey and PW3 Sh. Vijay Kr. Vats, the public witnesses who were joined in the aforementioned search proceedings have also confirmed about the raid conducted at the residence of Ashwani Kr. Aggarwal and have interalia deposed that the documents Ex. PW2/B to Ex. PW2/N were recovered in their presence during the said raid.
22. PW1 Ashwani Kumar Aggarwal has interalia deposed Page 13 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 that in the year 2005 he was running a sanitary shop by the name of Sabnam Sanitary Shop at A3/317 Paschim Vihar and was also running two factories by the name of Laxman Overseas at SDF4, SEZ Noida and V4 Manufacturing at Plot no.19 SEZ, Noida and that his residence was at 10/61, Punjabi Bagh, where he lived alongwith his family consisting of mother Kamlesh Aggarwal, wife Suman Aggarwal, elder son Vikash Aggarwal, younger son Vipul Aggarwal and daughter in law Vandana Aggarwal. According to this witness on 08.9.2005 at about 7:45 a.m, 810 persons entered his house and told him that they have come from DRI office and that they have to conduct a search of his premises. As per the deposition of this witness the raiding team was headed by Sh. Manish Mani Tiwari, Deputy Director DRI and that two officers namely Sh. B.K. Thapliyal and one Ranapal were also present in the team and that he was then asked by Sh. Manish Mani Tiwari to arrange for two witnesses. He has further deposed that he then requested his samdhi Sh. K.C. Bansal (PW16), father of his daughterinlaw Vandana Aggarwal to come to his residence immediately and that Sh. K.C. Bansal (PW16) did reach his residence within fifteen minutes and he was then asked by Sh. Manish Mani Tiwari to arrange for two witnesses and he did so.
Page 14 of 68CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 According to the further deposition of this witness during the aforementioned search proceedings an understanding was reached between himself and Sh. Manish Mani Tiwari that Mr. Tiwari would help him in the matter and would allow him and his sons to leave their residence without arresting them but that in return he would have to be paid some amount to Mr. Tiwari and that in this regard, his officer i.e. accused Y.S.Verma would contact PW1 or his samdhi K.C.Bansal. This witness has also interalia further deposed that pursuant to the said understanding he and his sons were allowed to leave the residence by Manish Mani Tiwari and that further Manish Mani Tiwari also took away one diamond ring and a pair of diamond ear rings valued at Rs.30 lacs from the almirah of the daughterinlaw of PW1 in consideration of allowing PW1 and his sons to leave their residence and not arresting them. As per the further deposition of this witness on 10.9.2005 accused Y.S.Verma contacted his samdhi Sh. K.C. Bansal and told him that Sh. Manish Mani Tiwari was demanding Rs. 50 lacs to settle the matter and that on 12.9.2005 PW1 again spoke to accused Y.S.Verma on telephone who told him to make the payment quickly otherwise PW1 alongwith both his sons would be in trouble. This witness has also interalia deposed that Page 15 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 on 17.9.2005 accused Y.S.Verma again telephoned his samdhi Sh. K.C. Bansal and told him that he would be visiting the residence of Mr. Bansal the next day and asked PW1 to give him the first installment of Rs. 5 lacs. As per this witness since he did not want to give the said amount, he alongwith PW16 Kailash Bansal went to the office of CBI and made a complaint to SP, CBI on 17.09.2005. The said complaint has been exhibited as Ex.PW1/A. As per this witness the then SP, CBI Sh. Lakhi Prasad (PW17) after hearing him and after accepting the complaint told him to come to the office of CBI on the morning of 18.02.2005 alongwith the cash of Rs.5 lacs. This witness has thereafter gone on to describe the pretrap proceedings that took place in the office of CBI. He has also further described the manner in which thereafter the raiding team first proceeded to the house of K.C.Bansal and thereafter to the house of accused Mahender Kumar to make the payment the said portion of the deposition is not being referred to in detail for the sake of brevity and also for the reason that the same is on the lines of the allegations made in the chargesheet which have been narrated hereinabove.
23. PW16 K.C.Bansal has more or less deposed about the pre Page 16 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 trap and posttrap proceedings on similar lines as that of PW1.
24. PW17 Sh. Lakhi Prasad, the then SP CBI has interalia deposed that after receiving the complaint from the complainant, PW1, he instructed Inspector Rajpal (PW20) for verification of the complaint and after receiving the report from the said Inspector, got the FIR registered and then entrusted the investigation to Sh.O.P.Parida, the then Dy.SP, CBI as trap laying officer.
25. PW19 O.P.Parida, PW14 Inspector R.G.Mishra, two independent witnesses PW5 Rajiv Vohra, PW6 Madan Mishra, who were all the part of the raiding team have interalia described in detail the pre and the post trap proceedings.
26. PW7 Ms. Praveen Mahajan, the then Additional Director General of Revenue Intelligence, DRI, is the official who had initially granted sanction for the prosecution of the accused Y.S.Verma, which was later on declared as invalid sanction. PW 18 Sh. Najib Shah, Director General, DRI who later on granted sanction for the prosecution of accused Y.S.Verma has proved his Page 17 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 sanction order as Ex. PW18/A.
27. PW8 Attar Singh and PW9 Rangi Lal are officials of DRI who have proved the service of summons issued by DRI upon the complainant and have interalia deposed that the accused Y.S.Verma was present with them when they had gone to the premises of the complainant to serve the summons in question.
28. PW10 V.V.Chari and PW11 Kuldeep Singh are also officials of the DRI who handed over some official files of DRI to the IO of the present case.
29. PW15 Sh.P.Nath, Sr. Scientific officer, CFSL, CBI has proved the report that he had submitted after analyzing the bottles containing the right hand and left hand wash solutions of accused Y.S.Verma (which were prepared during the trap proceedings) and the trouser of accused Y.S.Verma (which was seized during the trap proceedings). The said report had been exhibited as Ex. PW 15/A.
30. The entire aforementioned evidence was put to both the Page 18 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 accused persons and their statements were recorded u/s 313 Cr.PC. It is very relevant and necessary to narrate in detail the contents of the said statements in order to understand the reason furnished by the defence for the accused Y.S.Verma to have been found present in the house of accused Mahender Kumar on the date of the raid. According to both the accused persons they had been friends for a long time and that the accused Mahender Kumar was also known to the complainant Ashwani Aggarwal. According to accused Y.S.Verma on 16.09.2005 which was a Friday, Mahender Kumar came to his residence in the evening and told him that Ashwani Aggarwal at whose premises DRI had conducted a raid on 08.09.2005 was his friend and that he had requested him i.e. Mahender Kumar to request Y.S.Verma to make his Samdhi K.C.Bansal and his daughter in law Vandana Aggarwal understand that there would be no serious repercussions of the raid. This accused has further narrated that Mahender Kumar had told him that the daughter in law of Ashwani Aggarwal had left his house due to the raid and that therefore Ashwani Aggarwal wanted his help to convince her and her father to come back and Ashwani Aggarwal knew that accused Y.S.Verma was a friend of Mahender Kumar. As per this accused Mahender Kumar was persistently Page 19 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 requesting him to help by stating that Ashwani and his sons were absconding and his wife was unwell and that he i.e. accused Y.S.Verma would be doing a social work if he could convince Vandana Aggarwal to come back to her matrimonial home for she would then morally support the wife of Ashwani Aggarwal and also look after her. As per the further statement given by this accused u/s 313 Cr.PC since at that particular time, his own married daughter was also facing trouble from her inlaws, he thought that he should help in this cause and he therefore finally agreed to speak to Vandana Aggarwal. He has further gone on to narrate that on 18.09.2005 which was a Sunday, Mahender came to his residence at about 10.30 a.m. and requested him to accompany him to the residence of K.C.Bansal at Punjabi Bagh but that he told him that his daughter and his son in law were coming to his home to spend some time and that his daughter had specially requested him to get Chole bhature from the shop of one Nagpal at Lajpat Nagar and that therefore he did not have any spare time to accompany him to Punjabi Bagh. According to accused Y.S.Verma, Mahender Kumar then left his residence but came back again after ten minutes and suggested to him that he should accompany him to his residential premises at Lajpat Nagar and he Page 20 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 would call K.C.Bansal and his daughter Vandana Aggarwal at his home only and that Y.S.Verma could collect the Chole bhature also and talk to the said persons also. Accused Y.S.Verma has further narrated that since he anyway had to go to Lajpat Nagar to collect the Chole bhature from the shop of Nagpal, he agreed to the suggestion of Mahender Kumar and then went to Lajpat Nagar, collected the Chole bhature, dropped the same at his residence at Pandara Road and then went back to Mahender Kumars house at Lajpat Nagar at about 1.15 p.m. According to this accused after a while K.C.Bansal, Vandana Aggarwal and one Madan Mishra came to the house of Mahender and he was introduced to them and was told Madan Mishra was a family friend of K.C.Bansal and after meeting him, Vandana Aggarwal started saying that her father is ready to give any amount of money to get this case hushed up and that he should help them in this regard. As per this accused he told her that there is no question of getting the case hushed up for it had already been booked and that if at all any money is to be given, Ashwani Aggarwal and his sons should deposit the duty with DRI and he tried to convince her that once the duty is deposited nothing will happen to her husband or Ashwani Aggarwal but she and K.C.Bansal kept on insisting that Page 21 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 he should help them in giving money to the DRI officers and get the case hushed up. This accused has further gone on to state that while they were so talking to him, K.C.Bansal tried to hand over to him a packet stating that they had brought some money and that he should accept it and that he vehemently told him that he does not want to accept any money and that he had come only to help him on the request of Mahender. According to this accused in the meanwhile Vandana received a telephone call on her mobile and immediately moments thereafter the CBI officers entered the premises and falsely arrested him in this case on the baseless allegation that he had accepted bribe.
31. This accused has also taken a stand before this Court that there was no question of his ever asking any bribe from Ashwani Aggarwal or helping him in any manner to avoid the case against him for in the year 1990 while being posted in Delhi Zonal Unit he had informed the department about the illegal import of electronic goods by Ashwani Aggarwal and on the basis of his information a case had been registered against him under the Customs Act and COFEPOSA Act. According to this accused Ashwani Aggarwal had always been involved in White Collar Page 22 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 Crimes and he got him implicated in this case only to set up a defence and to take revenge from him. This accused has further stated that as regards Manish Mani Tiwari, he had never worked with him in any raid or any other proceedings whatsoever and was not even reporting to him and that there was no question of his asking any bribe on behalf of Manish Mani Tiwari or taking a bribe in his name.
32. Accused Mahender Kumar in his statement u/s 313 Cr.PC has more or less taken similar defence as that taken by accused Y.S. Verma. As per his statement tendered u/s 313 CrPC on the Wednesday prior to 18.09.2005 on which date the CBI had raided his residence, Ashwani Aggarwal had come to his residence at about 34.00 p.m. and had told him that some custom officials had raided his residence a few days back as he had not paid some duty on goods imported by him and that he is wanting to settle the case with the custom authorities and requested him that since Y.S.Verma is known to him, he should request him to help him i.e. Ashwani in settling his duty issue with the Customs Department. This accused has further narrated that Ashwani also told him that his daughter in law had left his house because of the raid and that Page 23 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 he would be obliged if Y.S.Verma could explain to her that the raid would not have serious repercussions and that the case would be settled by paying only a duty and that she should return back to her marital home. According to this accused since Ashwani was his friend, he agreed to help him and went to the residence of Y.S.Verma on the same day in the evening and requested him to help Ashwani but that Y.S.Verma however told him that since he is not handling the case, he cannot help Aggarwal in any manner. This accused has further narrated that he relayed the said message to Ashwani Aggarwal but that Ashwani however again requested him that Y.S.Verma should atleast talk to his daughter in law and his Samdhi one Mr. Bansal to convince both of them that the raid was not a serious issue and that this would help his daughter in law to come back. As per this accused he then again repeatedly requested Y.S Verma to help Ashwani and on his insistence Y.S.Verma finally agreed to meet Mr. Bansal and his daughter meet Mr. Bansal and his daughter at their residence on Sunday. This accused has further narrated that the place of the meeting was later changed to his own residence - the remaining statement of this accused with respect to the reasons for this change is on the same lines as that of accused Y. S. Verma and therefore is not Page 24 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 being repeated herein for sake of brevity.
33. This accused has also additionally stated that he had never acted as a conduit between Y.S.Verma and Ashwani Aggarwal or K.C.Bansal for the demand or acceptance of any bribe and that even the CBI officials on the date of raid had not arrested him and had made him only a witness to the various documents that they prepared at his premises and he was merely informed that he would be required to come to the office of CBI to give his statement with respect to the raid proceedings. This accused has also further narrated that he was however very scared and apprehensive in going to the CBI's office and approached a lawyer friend of his who advised him that since he was a mere witness to the raid proceedings he can avoid going to the office of CBI and that on the basis of this advice he did not go to the CBI's office, though 34 days after the raid they had called him. As per this accused as he refused to cooperate with CBI, they later on falsely implicated him in this case.
34. Now the contentions made by Ld. PP Ms. Shashi on the basis of the evidence led by the prosecution are as follows : Page 25 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 ● The depositions of PW12 and PW13 prove that the accused Y.S.Verma was a part of the team that was keeping surveillance upon the complainant Ashwani Aggarwal and the depositions of PW8 and PW9 prove that the accused Y.S.Verma was also involved in serving the summons of DRI upon the complainant even after the raid was conducted at the premises of the complainant Ashwani Aggarwal. This according to Ld. PP shows that the accused Y.S.Verma had the opportunity and the motive to demand illegal gratification from the complainant.
● The depositions of PW1 and PW16 make it clear that the accused Y.S.Verma had demanded illegal gratification from PW1 on 10.09.2005, 12.09.2005 and 17.09.2005 and further that on 18.09.2005, in the presence of an independent witness PW6, the accused Y.S.Verma had again demanded and accepted the illegal gratification of Rs. 5,00,000/ from the complainant.
● The depositions of PW19, PW14 and PW15 prove that the illegal gratification of Rs.5,00,000/ was Page 26 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 recovered from the possession of the accused Y.S.Verma only and thus according to the Ld. PP all the ingredients necessary to prove the commission of the offences punishable u/s 7 and 13 (1) (d) have been proved by the prosecution against the accused Y.S.Verma.
● As regards accused Mahender Kumar Ld. PP has again relied upon the testimony of PW1 and PW16 to contend that this accused had actively conspired with accused Y.S.Verma to aid and abet him in obtaining for himself an amount of Rs.5,00,000/ from the complainant.
35. In reply Ld. Counsel for the accused Y.S.Verma, Sh. Sanjay Chaubey has made the following main contentions : ● The mere fact that the accused Y.S.Verma was a part of the surveillance team is hardly sufficient to draw an inference that he had demanded any illegal gratification from the complainant on behalf of Manish Mani Tiwari. It has been pointed out that neither the accused Y.S.Verma was a part of the raiding team that had Page 27 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 conducted search at the house of the complainant nor did he have the jurisdiction to initiate any action pursuant to the raid conducted and nor was he in any way connected with the amount of import duty that the DRI ultimately levied upon the complainant. Ld. Counsel has further submitted that the evidence produced by the prosecution itself reveals that the accused Y.S.Verma was not even reporting to Manish Mani Tiwari and therefore the contention is that there was no official act to be done by the accused Y.S.Verma for which he could have demanded illegal gratification from the complainant and that therefore the prosecution has miserably failed to prove the commission by the accused Y.S.Verma of either the offence punishable u/s 7 or 13 (1) (d) of the PC Act.
● As regards the service of summons issued by the DRI to the complainant, it has been pointed out that the accused in his statement tendered u/s 313 CrPC has explained that he was asked by PW13 Sh.C.P.Goyal to accompany the process server as the complainant Ashwani Aggarwal was known to be cantankerous and it was being Page 28 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 apprehended that he would create a scene and would somehow avoid taking the summons. It has been also submitted that even otherwise the deposition of PW8 and PW9 itself shows that the accused Y.S.Verma had in no manner interacted with Vandana Aggarwal and that the complainant has even deposed falsely with respect to the service of summons upon him. It has been pointed out that the complainant has alleged that on 12.09.2005 the accused Y.S.Verma and Inspector Rana Pal had come to serve the summons at his premises and they had told his daughterinlaw to contact Y.S.Verma in order to avoid further difficulty in DRI case or otherwise the complainant would be in trouble - this testimony according to the defence is totally contrary to the testimony of PW8 and PW9, who have interalia deposed that it is they who had served the summons upon Vandana Aggarwal and not Inspector Rana Pal or the accused Y.S.Verma. It has also been contended that if the prosecution wanted to contend that even on 12.09.2005 the accused Y.S.Verma had threatened the daughterinlaw of the complainant, they should have Page 29 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 examined Vandana Aggarwal, who though was included in the list of witnesses, was strangely dropped as a witness at the last moment - this according to the defence shows that the prosecution itself was aware of the weakness of their case.
● As regards the alleged demands made by the accused Y.S.Verma on 10.09.2005, 12.09.2005 and 17.09.2005, the contention is that the statements given by PW1 and PW16 in their cross examination clearly reveal that no such demands were made by accused Y.S.Verma on any of the dates namely 10.09.2005, 12.09.2005, 17.09.2005 and that PW1 and PW16 have deposed falsely in this respect in their examination in chief. Various contradictions in the deposition of PW1 and PW16 with respect to the demands made on the said three dates have been pointed out to contend that both these witnesses have deposed falsely in this respect (the said contradictions have been spelt out in detail in the latter part of the judgment and are not being reproduced herein for the sake of brevity). It has also been pointed out that though as per the CBI manual, the investigating agency Page 30 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 was bound to have conducted a preliminary investigation with respect to the allegations made by the complainant about the said demands, the statements given by Investigating Officers PW14 R.G.Mishra and PW20 Raj Pal Singh in their cross examination makes it apparent that no efforts whatsoever was made to even determine the phone numbers on which the complainant had received the alleged demands of bribe from the accused Y.S.Verma on the aforementioned dates. ● As regards the alleged incident of 18.09.2005, Ld. Counsel has heavily relied upon the transcript, Ex. PW 16/DY of the conversation contained in the audio cassette Ex. PW1/H to contend that all the three witnesses PW1, PW6 and PW16 have falsely deposed that on 18.09.2005 the accused Y.S.Verma had demanded or accepted an amount of Rs.5,00,000/ from the complainant or from PW16. It has been pointed out that though in the chargesheet, there is no mention made of the recording of the conversation that took place at the house of the accused Mahender Kumar, the witnesses of the trap proceedings have clearly deposed during trial Page 31 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 that during the pretrap proceedings the Investigating officer had provided an audio cassette and a cassette player to PW16 K.C.Bansal with instructions that the same should be kept with him in a discrete manner to record the conversation which would take place at the time of the transaction and that admittedly the entire conversation that took place at the house of Mahender Kumar was recorded in the cassette Ex. PW1/H. Ld. Counsel Sh. Chaubey has also drawn the attention of this court to the fact that though the prosecution was not relying upon the said cassette for proving its case against the accused persons, it was on the directions of the Ld. Predecessor of this Court that the defence was provided with a copy of the said cassette and also with a copy of the transcript of the said cassette prepared by the IO. According to the Ld. Counsel the prosecution was reluctant to provide a copy of the said cassette to the defence for they were always aware that the conversation contained therein infact proves that the accused Y.S.Verma had never made any demand of money on 18.09.2005 and that he was present at the house of Page 32 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 accused Y.S.Verma only for the reasons narrated by him in his statement tendered u/s 313 CrPC. It has also been pointed out that there is no credible evidence brought on record by the prosecution to even show that accused Y.S.Verma had accepted the packet of cash from K.C.Bansal. Discrepancies and contradictions in the statements of PW1, PW5, PW6 and PW16 have been pointed out to contend that the same prove that the accused Y.S.Verma had never accepted any packet of cash from K.C.Bansal, though K.C.Bansal had tried to forcibly give the packet of cash to Y.S.Verma. The transcript Ex. PW16/DY has again been relied upon in support of this contention.
● It has also been pointed out that prosecution has absolutely failed to explain as to whom, the seal of RP which was used during the post trap proceedings, belonged to for admittedly none of the investigating officers who were a part of the raiding team have their initials as RP and PW20 Rajpal Singh, the IO has categorically denied that the said seal belongs to him. Ld. Counsel has also contended that it is unimaginable Page 33 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 that a public witness, in this case PW6 was given the seal after use and the same was not even asked back from him for a period of nine years and that PW6 on his own produced the said seal in court on being summoned as a witness - the contention is that no sealing whatsoever was done after the raid and that the entire version of the prosecution about using the seal of RP is concocted as an after thought after realizing that the non sealing could damage their case. It has also been contended that this discrepancy also shows that how a public witness PW6 is willing and ready to depose falsely at the instance of CBI.
● Ld. Counsel Sh. Chaubey has also interalia contended that the present case must fail for the prosecution cannot demand that the accused Y.S.Verma should be held guilty of demanding and accepting a bribe, which as per the case of the prosecution itself, he had demanded not for himself but for Manish Mani Tiwari, whom the prosecution has not even bothered to chargesheet. According to Ld. Counsel Sh. Chaubey, the CBI in the present case has fabricated evidence against the accused Page 34 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 Y.S.Verma only because they wanted to shield Manish Mani Tiwari from prosecution. It is the submission of Ld. Counsel Sh. Chaubey that the father of Manish Mani Tiwari in the year 2005 was the Commissioner of Customs and hence a highly influential person and that therefore despite the fact that the complainant had categorically informed the CBI that it was Manish Mani Tiwari who had allowed him and his sons to leave their residence and avoid getting arrested, in consideration of illegal gratification, the CBI did not even bother to investigate the role of this DRI Official and conveniently only sought to chargesheet the accused Y.S.Verma that too on the basis of false and fabricated evidence. ● In addition it has also been contended on behalf of this accused that no cognizance on the basis of the sanction order obtained subsequently could have been taken because the second sanction order was invalid for the reason it was monitored by the Ld. Predecessor of this Court and infact the sanction order was given under the pressure of the court. It has been further submitted by the Ld. Counsel Sh. Chaubey that as per the CBI manual, Page 35 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 the sanctioning authority was required to peruse the original material but the second sanction has been granted on the basis of photocopies which itself is sufficient to hold the sanction granted subsequently to be invalid and improper.
36. In support of all the aforementioned contentions Ld. Counsel Sh. Chaubey has relied upon the following judgments : ● Suraj Mal Vs. State (Delhi Administration) (1979) 4 SCC 725.
● A.Subair Vs. State of Kerala 2009 IV AD (Cr.) (S.C) 21 ● C.M.Girish Babu Vs. CBI (2009) 3 SCC 779 ● Banarsi Dass Vs. State of Haryana (2010) 4 SCC 450 ● B.Jayaraj Vs. State of Andhra Pradesh (2014) 13 SCC 55 ● Khaleel Ahmed Vs. State of Karnatka 2016 (1) JCC
63. ● Satpal Singh Vs. State of Delhi 2016 (1) JCC 554. ● Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh Page 36 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 (1979) 4 SCC 172.
● State of Tamil Nadu Vs. M.M. Rajendran (1998) 9 SCC 268.
● Mansukhlal Vithaldas Vs. State of Gujrat (1997) 7 SCC 622.
● State of Karnataka Vs. Ameerjan (2007) 11 SCC 622 ● CBI Vs. Ashok Aggarwal ● P.Parasurami Reddy Vs. State of Andhra Pradesh 2011 (12) SCC 294.
37. Ld. Counsel Sh. Deepak Gandhi, appearing on behalf of accused Mahender Kumar has also similarly contended that the entire case of the prosecution against accused Mahender Kumar is false and fabricated. He has pointed out that both PW19 and PW 20 have admitted in their cross examination that till the stage of the raid conducted at the house of this accused, there was no evidence in the form of any statement or otherwise that this accused was in any manner involved in the act of demanding illegal gratification from the complainant and that even in the documentation prepared with respect to the trap proceedings, he was cited as a mere witness. It has been further pointed out that neither was the house Page 37 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 of this accused searched nor was he arrested on the date of the raid though the accused Y.S.Verma was arrested from the spot itself and this accused was merely told that he would be contacted by the CBI, if required. The submission of Ld. Counsel Sh. Gandhi is that the prosecution has miserably failed to even furnish an explanation what to talk of proof, as to what happened after the trap proceedings that the status of Mahender Kumar was changed from that of a witness to that of an accused. According to the Ld. Counsel Sh. Gandhi the only thing that happened was that this accused had refused to give a statement as per the desire of the IO for implicating Y.S.Verma and therefore the IO simply arrayed him as an accused in flagrant misuse of his powers. Ld. Counsel Sh. Gandhi has further submitted that though on the one hand the investigating agency strangely did not bother to chargesheet Manish Mani Tiwari despite there being clear allegations against him in the complaint filed by the complainant with the CBI on 17.09.2005, the accused Mahender Kumar was chargesheeted despite there being no reference of his name in the aforementioned complaint. It has been further contended that this accused was not even present in the room where the alleged exchange of money took place and his signatures were taken later on the proceedings Page 38 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 and the said fact is proved by the testimony of PW5. Ld. Counsel Sh. Gandhi has further pointed out that even during trial the depositions of PW1 and PW16 can hardly be stated to be sufficient to prove beyond all reasonable doubt that this accused was in any manner involved in the alleged demand or acceptance of illegal gratification by accused Y.S.Verma. He has pointed out that infact PW1 in his cross examination has admitted that the accused Mahender Kumar had no knowledge that on 18.09.2005, the complainant would be coming to his house to pay the alleged demanded amount of Rs.5,00,000/ to accused Y.S.Verma. It has also been pointed out that in the complaint made to the CBI by the complainant on 17.09.2005, there is no reference to this accused having made any call to the complainant or of having to do anything with the alleged demands of bribe being made by accused Y.S.Verma. The contention therefore is that the statements made by PW1 and PW16 during trial for the first time are nothing but an improvement made by these witnesses only at the instance of the CBI.
38. In rebuttal, Ld. PP has pointed out that the seal of 'RP' used in the proceedings was that of Sh.Rishi Prakash, Addl. SP, Page 39 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 who had also joined the raiding team on 18.09.2005, as deposed by PW19. She has further submitted that not chargesheeting Manish Mani Tiwari was a decision taken by the investigating officer, on the basis of his own intelligence and knowledge of law and that simply because he did not choose to chargesheet this person, the entire prosecution agency cannot be imputed with any malafide. She has further submitted that this court should take note of the fact that prior to the conclusion of the final arguments, the prosecution has filed an application u/s 319 Cr.PC and that now it is upto this court to summon him. As regards the conversation recorded in Ex. PW1/H Ld. PP has pointed out that the IO PW19 in his cross examination has explained that this conversation could have possibly been recorded after the accused Y.S.Verma had demanded and accepted the bribe and therefore the conversation recorded in the cassette does not refer to the demand and acceptance of bribe. In the alternative she has also contended that "demand" is not sine qua non for the commission of the offence punishable u/s 7 of the PC Act and in support of this contention she has relied upon the following two judgments : ● State Vs. A.Parthiban AIR 2007 SC 51 ● C.B.Rai Vs. CBI 2013 SCC Online Del 1835 Page 40 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016
39. As regards the submissions made on behalf of accused Mahender Kumar, the contention of Ld. PP is that this accused was asked to sign the written proceedings prepared at his house not because the prosecution wanted him to become its witness but because the accused Y.S.Verma had accepted the illegal gratification at the house of this accused and therefore he was a witness of the said circumstance and his signatures were required to be taken to show his presence at the spot. She has further submitted that this accused had become a suspect on the date of the raid itself when the venue of taking the illegal gratification was fixed at his house and once when thereafter during investigation, the complainant and K.C.Bansal, in their statements tendered u/s 161 Cr.PC, specified that the accused Y.S.Verma had been contacting them through this accused, the IO was fully justified in arraying him as an accused. She has therefore contended that this accused cannot claim any benefit from the fact that he was not arrested on the date of the raid. She has further contended that this accused did have the knowledge of the demands being made by accused Y.S.Verma and this according to her is apparent from the fact that he was to also earlier come to the residence of K.C.Bansal Page 41 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 alongwith the accused Y.S.Verma, before the venue was changed to his house.
40. I have carefully considered the submissions made by all the Ld. Counsels and have perused the entire trial record and have also gone through the judicial dicta referred to by the Ld. Counsels. Dealing first of all with the issue of sanction raised on behalf of accused Y.S.Verma, suffice is to state that this accused cannot be allowed to reagitate this issue in view of the order dated 11.12.14 of the Hon'ble Delhi High Court. Admittedly this accused had challenged, by means of a writ petition filed before the Hon'ble Delhi High Court under Article 226 of the Constitution, the cognizance taken against him by the Ld. Predecessor in the chargesheet filed in CC No. 01/13 on the same grounds namely that the sanction granted for his prosecution was improper and the Hon'ble Delhi High Court after considering all the grounds asserted by this accused, vide order dated 11.12.14 dismissed the said writ petition and held that the subsequent sanction was valid and proper and that the Ld. Predecessor of this Court had rightly taken the cognizance of the offence in CC No. 01/13.
Page 42 of 68CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016
41. In view of the above, the contention of the accused Y.S. Verma that he could not have been prosecuted for lack of a proper sanction cannot be upheld. However having said so, the contention of this accused and accused Mahender Kumar that the investigation in the present case has been done in a completely unfair manner, appears to have much merit and in view of the material brought on record during trial, this court is constrained to observe that the investigating agency does appear to have acted in an arbitrary and unreasonable manner .The prosecution has miserably failed to explain why the allegations made by the complainant against Manish Mani Tiwari were not even investigated. As per the own case of the prosecution, the genesis of the present chargesheet is the complaint made to the CBI by Ashwani Aggarwal that Manish Mani Tiwari had been demanding illegal gratification from him with respect to a raid conducted at his residential premises by DRI. In the statement of the complainant recorded under section 161 Cr.P.C on 22.9.05, the investigating officer PW20 Raj Pal Singh has himself recorded that the complainant informed him that on 8.9.2005, when the DRI officials raided his premises, Manish Mani Tiwari did not arrest him and his sons, though the law required him to do so and that for Page 43 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 doing so he not only told the complainant that the complainant would have to pay him an amount, which he will convey through accused Y.S. Verma, but he also pocketed Rs. 30 lacs worth diamond jewellery belonging to the daughterinlaw of the complainant from the residential premises of the complainant during the DRI raid. Now despite these specific allegations made against Manish Mani Tiwari, PW20 Raj Pal Singh in his cross examination has categorically admitted that he had not made any specific investigation against this person though according to him the statement of Manish Mani Tiwari had been recorded twice during investigation of this case with respect to the CBI raid(not the DRI raid). The said statements have also admittedly not been placed alongwith the chargesheet and the explanation given by the IO in this regard is that since Manish Mani Tiwari was neither an accused nor a witness, he did not find it necessary to put the said statements on record alongwith the chargesheet. On being further asked as to why did he not array Manish Mani Tiwari as an accused, this witness has chosen to state that since Manish Mani Tiwari was not present when the demand, acceptance, recovery of bribe was made, the material collected during investigation was not at all sufficient to array him as an accused. In the considered Page 44 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 opinion of this court this investigating officer has made nothing but a mockery of law he first does not investigate the material allegation against Manish Mani Tiwari and then very conveniently cites the lack of evidence against this man to not charge sheet him. There is no explanation forthcoming from the prosecution as to why like in other trap cases, where the agent/ middleman of the public official caught red handed is made to speak to his Principal / public servant confirming the taking of bribe on his behalf so as to collect evidence against the public servant, in the present case the accused Y.S.Verma was not made by the investigating officers, to speak to Manish Mani Tiwari after he allegedly demanded and accepted bribe from the complainant on his behalf. It is after all the case of the prosecution itself that the bribe from the complainant was demanded for the first time by Manish Mani Tiwari on 08.09.05, the date of the raid of DRI and that he only informed the complainant that accused Y.S.Verma on his behalf would convey the amount that the complainant would have to pay and that on 10.09.05 the accused Y.S.Verma informed the complainant that Manish Mani Tiwari was demanding Rs. 50 lacs
- clearly therefore the public official who demanded the bribe / illegal gratification for showing favors to the complainant and Page 45 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 abusing his public office was Manish Mani Tiwari. No doubt the accused Y.S. Verma was also allegedly abusing his public office in acting on behalf of Manish Mani Tiwari but the demand of bribe was principally made by Manish Mani Tiwari and therefore the investigating agency should have atleast investigated the allegations against him to demand bribe from the complainant. Admittedly the evidence collected by the IO during investigation itself revealed that on 08.09. 05 the residence of Ashwani Aggarwal was raided by a team of DRI officials led by Manish Mani Tiwari and this official tells Ashwani Aggarwal to himself arrange for two public witnesses and then allows Ashwani Aggarwal and his sons to leave the premises and then mentions in his report Ex PW4/A that they fled away during the search proceedings it absolutely belies reason that a DRI official raiding a premises asks the offender only to arrange for independent witnesses and that despite the presence of 810 DRI officials the offender with his two sons is conveniently able to walk away from the raided premises though the law requires him to be arrested and yet the premier agency of this country finds nothing amiss in all this to even investigate the allegation of the offender that he was allowed to leave only because he had handed over jewelry worth Page 46 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 Rs 30 lakhs to the DRI official leading the team. Suffice is to state that the questioning of the members of the raiding team of DRI present at the house of the complainant on 8.9.05 and efforts to trace out the missing jewelry, if any, should have been a part of the investigation. The submission of the Ld PP that the investigation is the sole prerogative of the Investigating Official and it is his intelligence alone which determines who is to be investigated and charge sheeted speaks volumes about the functioning of the CBI.
42. As regards the application under sec 319 CrPC (which Ld PP had to fairly concede was filed only to meet the issue of non charge sheeting Manish Mani Tiwari raised by the Defence during Final arguments), in the considered opinion of this Court the Ld. Prosecutor for the CBI cannot at all be allowed to agitate and that too at the stage of final arguments when effectively the entire trial had been concluded, that if the investigating officer has failed in his duty the court should exercise its jurisdiction under 319 CrPC and summon Manish Mani Tiwari after seeking sanction for his prosecution from his employer the said provisions could have been resorted to only if the investigation into the aforementioned facts was otherwise complete and some additional evidence had Page 47 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 emerged during trial in the absence of any investigation whatsoever with respect to what actually transpired between the complainant and Manish Mani Tiwari on 8.9.05 and the circumstances under which the complainant was able to leave his residence despite the presence of an entire team of DRI officials, resorting to section 319 Cr PC., in the considered opinion of this court, will now be a futile exercise, more so when the other evidence brought on record by the prosecution against the charge sheeted accused persons and being relied upon in support of the application under section 319 CrPC is not sufficient to make them face a further joint trial with Manish Mani Tiwari or to return a finding of guilt against them even otherwise. (It would be relevant to mention that it was on the request of Ld. PP Ms. Shashi that her arguments with respect to the application filed u/s 319 Cr.PC are the same which she wants to advance for contending that the prosecution had led sufficient evidence for this court to convict the chargesheeted accused persons, that the application u/s 319 Cr.PC was heard alongwith Final arguments).
43. Now the main reasons for this court to reach the aforementioned conclusion that the Prosecution has failed to prove Page 48 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 its case even against the accused Y.S.Verma and Mahender is because of very material contradictions between the depositions of the star witnesses of the prosecution namely PW1 and PW16 and an audio cassette Ex. PW1/H produced during trial. It is an admitted position on behalf of the prosecution that during pretrap proceedings, the Investigating officer had provided an audio cassette and a cassette player to PW16 K.C.Bansal with instructions that the conversation which would take place at the time of the trap should be recorded in the said cassette by the means of the said player and the conversation was infact so recorded by PW16. It is also a matter of record that initially at the stage of arguments on charge, the investigating agency had, before one of the Ld. Predecessors of this court, refused to supply a copy of the said cassette or the transcript of the conversation contained therein to the defence on the ground that the prosecution is not relying upon the same and it is only when the accused Y.S.Verma challenged this stand of the prosecution before the Hon'ble Delhi High Court that the CBI gave a statement before the Hon'ble Delhi High Court that they would play the audiocassette in the court, at the time of arguments on the charge. Subsequently not only was the cassette then played in the court during arguments on charge, Page 49 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 the prosecution itself got exhibited the said cassette as Ex. PW 1/H during the deposition of PW1 and the transcript of the conversation contained in the said cassette, prepared by the IO himself was also placed on record. Further during the cross examination of PW1 and PW16, when the Ld. Defence Counsel had sought to confront these witnesses with the conversation in the said cassette and the said cassette was played in court, much of the conversation recorded therein was found to be inaudible and not at all corresponding to the transcript prepared and filed by the IO on record and therefore on the request of both the Ld. PP and the Ld. Defence Counsel, the cassette was sent by this court to CFSL, CBI to get a proper transcript prepared of the conversation contained therein. Sh. D.K.Tanwar, Sr. Scientific Officer, CFSL, CBI had then prepared a transcript of the aforementioned and had also filed on record a CD containing the enhanced version of the cassette Ex. PW1/H. The said expert was examined as a court witness and the transcript prepared by him has been given Ex. PW16/DY and the said transcript has not been disputed by the prosecution or the defence. Further the identity of the voices in the said cassette have also not been disputed by either of the parties. Now this transcript infact clearly reveals that it is the accused persons rather than the Page 50 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 prosecution witnesses who appear to be speaking the truth about the reason for the accused Y.S.Verma being present at the place of his apprehension and about what all transpired before his apprehension.
44. As narrated herein above according to the accused Y.S.Verma, he had been informed by accused Mahender Kumar that the daughterinlaw of the complainant Vandana Aggarwal was disturbed over the raid that had been conducted at her matrimonial house and that it was the complainant who had requested him through Mahender Kumar to counsel his daughter inlaw and convince her that the consequences of the said raid would not be dire and that the case would be settled by payment of duty etc. and it was for this reason that he had agreed to meet Vandana Aggarwal at the house of accused Mahender Kumar. It would be relevant here now to reproduce some portions of the transcript Ex. PW16/DY wherein the said daughterinlaw refers to her apprehensions and the accused Y.S.Verma tries to convince her that her apprehensions are misfounded.
45. The relevant statements made by the lady Vandana Page 51 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 Aggarwal in this context are - "Nahi Papa ko thora lag raha tha ki aisse galat kaam kar rahe hai yeh aur maine apni beti ko wahan chora hua hai"........ "tabse ghar main aissa lag raha hai jaise sanata chaya hua hai" ...... "aap thori help karo na sir".
46. In reply the accused Y.S.Verma tells her "Ghabrane ki koi baat nahi"..... "chinta wali baat nahi hai"..... "main haan toh kar raha hu jitni mere se ho sakti hai main kar raha hoon, jo advice jo kuch bhi ho sakti hai"........"nahi beta mere hath mein, main ashirwaad deta hoon, koi baat nahi aisi, jao ghar jao aaram se raho, balki apni mummy ka bhi khayal rakho aagey. Koi tension nahi rakho bus ye toh kaam hai kaam toh tareeke se niptega baaki dekhi jayegi."
47. Then again the aforementioned transcript reveals that Vandana Aggarwal offers to make payment for the settlement of the matter and infact the accused Y.S.Verma tells her that the only payment which is to be made is the duty to be paid for the goods imported by her father in law.
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48. The relevant statements made by the lady Vandana Aggarwal in this context are - "Jahan paise lagte hai, jaise karna hain kare, mere papa sab dene ko tayar hain"..... "jo unko dena hain, jo unse banega, woh keh rahe hain main jitna kahungi dila denge".... "nahi uppar se kisi ko dena hain toh......." ...... "jo lagta hain woh dene ko tayar hain hum aap jisko delana hain de dijiye"
49. In reply the accused Y.S.Verma as per the said transcript tells her "nahi beta nahi aisa nahi hain"..... "aise main kisse dila doon, aise nahi hota bete jaise ke aap kah rahe ho iss tareh se nahi hota hain, her cheez ek woh hoti hain, rasta hota hain, kaam karna hai woh kaam ke dhang se.... ro mat...., kamaal hain, aapke bache ko koi anch nahi aane wali, aap kyun chinta karte toh, aap baithe ho na bus, jo kuch bhi hain aap jimmewar ho aap responsible ho khatam ho gayi baat, bus ho jayega sab theek... admi toh wahan ghabrata hain.... murder kar diya kuch kar diya yaa ho gaya".....duty jama karaa de"
50. There are other portions of the aforementioned transcript Page 53 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 which also reveal that when PW K.C.Bansal tried to give money to Y.S.Verma, he refused the same.
51. The relevant statements made by K.C.Bansal in this context are - "Vermaji hame toh aap pe pura bharosa hain, main yeh..... laya hoon"..... "chalo koi nahi aap hamare liye"....
"hamara yeh dil toot jayegaa ji aap hamare dil se madad karo"
.... "aji thora".... "aap toh, waise mujhe bolna nahi chahiye baar baar, aap ka budget hain jo bhi usko bhi saath mein lenge"....
"jaise kahoge".
52. In reply the accused Y.S.Verma as per the said transcript tells him "main haath jhortaa hoon aap ke"... "paise ki koi baat maat karo"..... "nahi nahi dekho".... "paise se madad nahi hoti".... "nahi nahi nahi main aapse ek paisa bhi nahi lunga, aap mere bhai ki tarah ho, mere bhai ki tarah ho, aur aap bhi mere bhai ki tarah ho"......... "nahi nahi nahi hamare, hamare yahan iss tarah hota nahi hai, apni har insan ki apne apne reservation hote hai, baat nahi baat ho nahi payegi, nahi toh main pehle hi kar leta baat agar aisse hi hota"....
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53. The reproduced portions of the conversation referred to herein above makes it apparently clear that there was no demand of illegal gratification whatsoever made by this accused on 18.09.2005 either from PW1 or PW16. Though the entire transcript is not being reproduced herein, the tenor of the conversation is not at all what the prosecution witnesses have deposed about what transpired at the home of accused Mahender Kumar and it is clear that both PW1 and PW16 have deposed falsely in this respect. As narrated hereinabove the said transcript does not reveal that accused Y.S.Verma at any point of time before his apprehension had demanded any amount from PW1 or PW16 and yet PW1 in his deposition in this regard has interalia deposed that after reaching the residence of accused Mahender Kumar, his samdhi, K.C.Bansal had inquired from the accused Y.S.Verma as to what kind of help will he extend and in reply thereto accused Y.S.Verma stated that he had already talked to his senior officers in DRI and that everything will be settled according to the wishes of PW1. Similarly PW16 in his deposition has interalia deposed that while sitting with accused Y.S.Verma in the house of Mahender Kumar on 18.09.2005, he was told by Y.S.Verma that Page 55 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 they should not worry about the DRI case as he had already had a word with Mr. Tiwari and that they will have this case over by reducing the payable duty. On being confronted with the cassette Ex. PW1/H all that these two witnesses had to say was that the recording was inaudible no doubt the conversation in Ex.PW1/H is quite inaudible however now that an enhanced version of the said cassette in a CD and its transcript have been prepared by an expert produced by the prosecution itself and this Court has also heard the said CD with the help of headset during the testimony of the expert witness and more importantly the prosecution is itself not disputing the transcript Ex. PW16/DY, there is no doubt left in the mind of this Court that PW1 and PW16 have deposed falsely about what transpired on 18.09.2005.
54. Though the Ld. PP had initially sought to point out that the IO O.P.Parida has stated in his crossexamination that the accused may have demanded and accepted the illegal gratification immediately after meeting Vandana Aggarwal and K.C.Bansal and thereafter the aforementioned conversation may have taken place, she later fairly conceded the ridiculousness of the said statement of the IO and did not press this contention further. She however, then Page 56 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 has contended that the demand had already been made by the accused Y.S.Verma on 10.09.2005, 12.09.2005 and 17.09.2005 and that therefore the absence of a demand on 18.09.2005 is not fatal to the case of the prosecution, more so when the trap money was recovered from the possession of the accused Y.S.Verma only thereby pointing out to his acceptance of the bribe. In this respect she has also pointed out to the deposition of the independent witness PW6 Madan Mishra. This witness admittedly in his examination in chief has interalia deposed that after reaching the house of Mahender Kumar, he alongwith K.C.Bansal, Vandana Aggarwal, Ashwani Aggarwal, accused Y.S.Verma and Mahender Kumar all sat in the Drawing Room of the house of accused Mahender Kumar and there firstly K.C.Bansal and Vandana Aggarwal requested Y.S.Verma to help Ashwani Aggarwal and thereafter Y.S.Verma asked K.C.Bansal to fulfill their promise of making payment of the first installment of the bribe amount, on which K.C.Bansal opened the envelop containing currency notes which he had with him, showed the same to Y.S.Verma and then handed over the said envelop to Y.S.Verma who accepted the same with both his hands and then kept the envelop containing the currency notes by right hand side of his pant on the sofa where he Page 57 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 was sitting. In the considered opinion of this court the aforementioned testimony of PW6 Madan Mishra cannot be believed because as narrated herein above the conversation recorded on 18.09.2005 nowhere reveals that the accused Y.S.Verma had asked K.C.Bansal to first fulfill their promise of making payment of the first installment of the bribe amount. It is apparent therefore that the underlined portion of the testimony of PW6 narrated above is clearly false and it would therefore be unsafe to rely solely upon his testimony to conclude that the accused Y.S.Verma had accepted the packet containing the currency notes from K.C.Bansal. It would also be relevant to mention herein that this witness has contrary to the testimony of the CBI officials that the independent witnesses were called in the CBI Office only on 18.9.05, deposed that he had also come to the office of CBI on 17th Sept 2005 thereby prompting the Defence to contend that he is a stock witness of the CBI more so when the seal allegedly used in the trap proceedings remained with him for 9 years and therefore not to be believed - though this court is not inclined to declare him as a stock witness yet it has to be said that his testimony about what happened in the house of Mahender Kumar cannot be believed in its entirety in view of the transcript Page 58 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 Ex. PW16/ DY.
55. Further as per the version of the prosecution itself the packet containing the notes was not recovered from the person of accused Y.S.Verma but was found lying next to where this accused was sitting on the sofa alongwith K.C.Bansal. The submission of the Ld.PP that the packet containing the cash was perhaps too big to fit in his packet and that therefore this accused had kept the same next to where he was seated and thus the testimony of all the prosecution witnesses that the packet of the notes was touching the pant worn by the accused Y.S.Verma leads to the inference that the trap money was recovered from his possession cannot be accepted in view of the attendant circumstances which have come to the fore during trial. In the considered opinion of this court , in isolation from the other attending circumstances discussed herein above the said fact of the packet of cash being recovered from next to the accused does not at all conclusively lead to the inference that the accused Y.S.Verma had accepted the bribe offered to him. The conversation in the cassette Ex. PW1/H has been rightly relied upon by the accused Y.S. Verma to contend that though K.C.Bansal had tried to hand him over the packet of money he had Page 59 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 refused to take it and this explains the handwash solution turning pink . Even otherwise as pointed out by the Ld. Defence Counsel, the Hon'ble Supreme Court in his judgment pronounced in the case titled and reported as Surajmal Vs. State (1979) 4 SCC 725 has clearly held that mere recovery of money, divorced from the circumstances under which it is paid, is not sufficient evidence to convict the accused when the substantive evidence in the case is not reliable.
56. Coming now to the alleged demands being relied upon by the Ld PP to have been made by the accused Y.S.Verma on 10.09.2005 and 17.09.2005, it will be relevant to take note of the following statements deposed to by PW1 Ashwani Aggarwal and PW16 K.C.Bansal.
57. With respect to the demand made on 10.09.2005, PW1 Ashwani Kumar Aggarwal in his examinationinchief dated 20.12.2012 had deposed that "..... on 10.9.2005, Sh. Y.S. Verma contacted my Samdhi Sh. K.C. Bansal and told him that Sh. Manish Mani Tiwari was demanding Rs. 50 lacs to settle the matter. I was informed by my samdhi about the developments".
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58. Whereas, PW16 Sh. Kailash Chand Bansal in his cross examination dated 25.5.2015 had deposed "...... on 10.9.2005, Y.S. Verma had not contacted me but had contacted Ashwani Kumar Aggarwal or my daughter."
59. The aforementioned depositions, in the considered opinion of this court completely demolishes the case of the prosecution about the demand of bribe being made on 10.09.2005 for the aforementioned glaring contradiction between the depositions of PW1 and PW16 makes it clear that no telephonic call demanding bribe was made by the accused Y.S.Verma to either PW1 or to PW16.
60. With respect to the alleged demand made on 12.09.2005 PW1 Ashwani Kumar Aggarwal in his crossexamination dated 4.2.2015 had deposed that "........ on 12.9.2015 I had received the telephone call from Y.S. Verma on the landline number of my residence. I am not aware on which phone did my samdhi Sh. K.C. Bansal receive the telephonic call on 10.9.2005."
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61. On the other hand PW16 Sh. Kailash Chand Bansal in his examination in chief recorded on 31.03.2014 has with respect to the said demand interalia deposed "on 12.09.2005, Y.S.Verma again called me and I told him that I will talk to my Samdhi, Ashwani Kumar Aggarwal and shall call him back. I thereafter met Ashwani Kumar Aggarwal and made him talk to Y.S.Verma on telephone".
62. Further on being crossexamined where he made Ashwani Kumar Aggarwal talk to Y.S.Verma in this regard, he in his cross examination recorded on 25.5.2015 has deposed that "...... I do not remember where exactly I met Ashwani Kumar Aggarwal after receiving the call on 12.09.2005 but we met somewhere near Punjabi Bagh".
63. The aforementioned depositions yet again brings another glaring contradiction to the fore which makes it impossible to believe either PW1 or PW16 about the alleged demand made on 12.09.2005. The reproduced depositions reveal that though according to PW1 on 12.09.2005 he had received a phone call Page 62 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 directly from accused Y.S.Verma on the land line at his residence, as per the statement of PW16 that he had made Ashwani Kumar Aggarwal speak to Y.S.Verma somewhere at a place near Punjabi Bagh.
64. Apart from the aforementioned PW1 also appears to have deposed falsely against accused Mahender Kumar . Though PW1 in his examination in chief has deposed interalia that accused Mahender Kumar was his friend and was also an acquaintance of Y.S.Verma and that he was who had been calling him and informing him that he will get the matter settled with DRI, on payment of Rs.50 lacs to Manish Mani Tiwari through Y.S.Verma, during crossexamination, he took a somersault and deposed that it was not in the knowledge of accused Mahender Kumar that Y.S.Verma was to be paid Rs.5,00,000/ by him i.e. PW1 at the residence of accused Mahender Kumar. The Ld. PP on realizing that this witness had stated contrary to his examination in chief reexamined him and no doubt this witness in his re examination again stated that accused Mahender Kumar had been calling him up repeatedly to convey the demand of Y.S.Verma, he however did not deny the statement made by him in his cross Page 63 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 examination to the effect that on the date of the raid the accused Mahender Kumar had no knowledge about the payment of Rs.5,00,000/ at his residence.
65. In view of the contradictions pointed hereinabove this court is not at all inclined to place any reliance upon the testimony of PW1 or PW16 with respect to the alleged demands of bribe made by the accused persons and it does appear that the accused Y.S.Verma may not be wrong in contending that he has been falsely implicated by the complainant because this was the second occasion that complainant Ashwani Aggarwal had been booked for illegal activities by DRI pursuant to the surveillance done by accused Y.S.Verma and he wanted to teach him a lesson.
66. Apart from the discrepancies in the testimony of PW1 and PW16 discussed hereinabove, it is also relevant to take note that the investigating officers of this case shockingly did not even once think of examining the telephonic records of PW1 or PW16. Both the IOs PW20 Raj Pal Singh and PW19 O.P. Parida have admitted in their cross examination that at no point of time during investigation did they bother to even ask PW1 or PW16 about Page 64 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 the telephone numbers on which they had allegedly received the telephonic calls from the accused Y.S.Verma demanding bribe. Though the Ld. PP Ms. Shashi may be right in contending that since the trap was to be laid for 18.09.2005 and the complaint to the CBI had been made only on 17.09.2005, there was no sufficient time to examine the veracity of the allegations being made by the complainant about the telephone calls, she however has no explanation as to why this exercise was not done even post trap, more so when the investigating officer realized that no demand had been made on 18.9.05 by the accused Y.S.Verma.
67. The prosecution has also been unable to explain satisfactorily their decision not to produce Vandana Aggarwal in the witness box. Ld. PP for CBI had sought to lamely submit that she being a lady, the CBI felt it may not be appropriate for her to appear in a court, more so when her deposition was not that crucial for the trap proceedings to which she was a witness had already been proved by the other prosecution witnesses - in the considered opinion of this court the Defence is absolutely correct in contending that the prosecution has deliberately chosen not to produce the said lady in the witness box so as to deny an Page 65 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 opportunity to the accused persons to question her about the reasons of her presence at the house of accused Mahender Kumar and the allegation of the prosecution that this lady was told by Y.S.Verma on 12.09.2005 at the time of service of summons of DRI that the complainant needs to pay an amount to settle his case. Admittedly as per the deposition of both PW 19 O. P Parida and PW6 Madan Mishra, O.P.Parida after K. C Bansal had informed the raiding team that the venue had been changed to the house of Mahender Kumar, the IO had made Ashwani Aggarwal speak to Y.S Verma and as the phone was put on speaker they had heard the accused Y.S.Verma telling Ashwani Kumar that he should send his daughterinlaw to the house of accused Mahender Kumar and that Ashwani kumar Aggarwal was not asked by the IO as to why Vandana was being asked by Y.S.Verma to come to the house of Mahender Kumar - the said deposition is being rightly relied upon by the accused Y.S.Verma to contend that he had so told because the only reason for him to have agreed to meet Ashwani Aggarwal, his samdhi and his daughterinlaw to counsel the said daughterin law and that he could have proved this fact or atleast made an effort to prove this fact had the prosecution produced Ms. Aggarwal in the witness box. In the considered opinion of this Page 66 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 court the contention of Ld. PP that the said act of the prosecution has not caused any prejudice to the accused persons because the entire defence put forward by the accused persons is an after thought is to be absolutely rejected for not only has the cassette Ex. PW1/H proved to the contrary, the fact that the IO PW20 has also admitted in his crossexamination that he had asked Vandana Aggarwal whether she had left her matrimonial house on account of the DRI raid and Y.S.Verma had been called for some counseling, because the accused Y.S.Verma during his investigation was taking such a defence, amply reveals that the defence taken during trial was not at all an after thought and the accused had been taking this defence right from the time that he had been arrested.
68. In view of the detailed discussion hereinabove this Court is of the considered opinion that the application filed by the prosecution under section 319 Cr PC at the fag end of the trial has no merit and that the prosecution has absolutely failed to establish the guilt of the accused persons and therefore this court dismisses the said application and hereby acquits both the accused persons of the offences for which they have faced trial in CC No. 17/11 and Page 67 of 68 CC.No.17 / 2011 - CBI Vs. Mahender Kumar and CC.No.01/13 - CBI Vs. Yogender Singh Verma Dated : 23.12.2016 CC No. 01/13. It is hereby directed that Ahlmad should place a copy of this judgment in both the said CCs.
Announced in the Open Court On the 23rd December'2016 (ANU GROVER BALIGA) SPECIAL JUDGE : C.B.I. (P.C.ACT) DWARKA COURTS, NEW DELHI.
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